LAW REPORTS.

Dominion, Volume 7, Issue 1971, 30 January 1914, Page 3

LAW REPORTS.

MAGISTRATE'S COURT. THE TENANCY OF A RESTAURANT. REFUSAL TO QUIT. CASE OF MARK VAT V. GALLATE,

i»mi 0 !?'! case ' Camc before'3lr, W. G. Kiddell in the Magistrate's Court yesterday morning, in which llicUard f??2 r y Mare-vat proceeded against E. N. uallate for tho possession <it a shop and dwelling (138 Cuba Street), and for. £13 os., representing rent ami loss ot' profits. Mr. I£. M'Comwil appeared tor plaintiff, and Mr. J'. M. \Vitford for defendant.

The evidence given by plaintiff Mas to the effect that 011 October iS, 1010, I'f ' oasM * i,je promises to George M. uallate, the lease, hoiiijj lor a peritd ot four years three mouths. The lease barf expired on January 10 ia&t. .Witne?s had returned from Sydney <111 November 3 last, m 0 had i'cuul .tho premises occupied by E. N. Gallate. Ho had givcti! E. N. Gallate three icortl'is' notice- to quit, mid had subsequently seen him aiul asked him to leave. De* fendant, how ever, had refused. He (defendant) was paying £'3 16s. :>tl a week for tho premises, hut lie had sublet tho place to I. Karauze Bros.—a transaction 011 which lie ivas making a- profit of £1 as. a week.

After ail the evidence had been heard, Mr. tYilfostl stated that the defence was purely a. legal one. Tho action had been' brought under Section 169 of tho Magistrate's Court Act, which .dealt with actions where tenancies were ended. Tho actions should be brought either against the. tenant, or if such ■ tenant-, did not actually occupy tho premises, any other person who might occupy them. The question in this case was whether defendant- was the person who was actually occupying the house within the meaning of tho section. The statement ot claim did_ not disclose who was the actual occupier. As lar as that statement was concerned, the present occupier might, only be a mero trespasser, ? . a ' I" 010 trespasser was not- in-eluded in Section 163 of the Act. If tho present owner were, an occupier, then iSection 172 of t.lie Act was evaded. As it was, Gallate was not occupying tho premises at present. Mr. Wilford added that if judgment were given against his client an appeal would be lodged. ■ After further legal argument, Mr. Ripdell gave judgment for plaintiff. "I tliuik that Section 169 of the Act is t|Uito sufficient, to cover tho present case," remarked the Magistrate, Defendant was ordered to givo up possession of the promises within seven days, and pay the amount claimed. Leave ivas given to appeal.

INTERESTING JUDGMENT,

Reserved judgment was given in the civil case, Gibson v. Easson Bros a claim, for £81 ss, by William Jaincs uiusiin, a Willis Street commission agent, against Easson Bros., timbe» merchants and land agents.- Kilbirnie. the claim was for commission 011 the escnange of a property effected between Easson Bros, and A. D. Knight, lesson Bros, had disputed tlio claim on the ground that the plaintiff had received a secret commission from the other party to tho exchange. Plaintiff's answer to this was that j. W. ©asson Know* oi_ tho fact, that, Gibson got a commission from tho other party, and that that was why tho commission ciaimed trom Easson was charsed at the rate, of 1$ per cent, instead of at- a rate of 2-j per cent. At tho hearing, 1 : M ' , M / ers appeared for tho plaintiff, and Mr. T. C. A. Hislop for tho tklendants.

The Magistrate in giving judgment Quoted the case Owen v. Merediih'— It A employs a. land agent to sell his property, knowing at the time that the land, agent is- acting as agent for the sale of B's property, and the agentbrings A and B together and effects cJiango of their rospnetivo.properties, A must bo taken to have known that the land agent, would chargo B a com-' mission for selling his property, and the lact that h>> does not know the amount that Jj had agreed to pay is immaterial, and the land agent can therefore refcover trom A the commission which'he agreed ta pay. Hie Magistrate also quoted tho case Barr, Lcary and Co. v. Hall':— If a vendor appoints a person as ins agent for the purpose of effecting a sale or goods not knowing that that'person is at the tune acting as agent' for a iwchaser for the goods tho vendor desires to sell them to, the commission which the vendor agrees, in ignorance of the true position, to\pay his agent, cannot bo recovered by the agent. The onus is on the agent of showing that the vendor knew tile true position alien he agreed to pay the commission." , in tins case there is .1 conflict of evidence continued his Worship, "between plaintiff and defendant, and if xlio latter s statement is correct, then on the authority of Barr, Leary and Co. v. iiaU, plaintiff cannot recover. But airii iM>t satisfied after hearing all th*~ evidence that defendant .was unaware V v 'l! rec<?ivi »S a commission , n \ the purchaser of defendant s tarm I think the statements of plaintiff and the dorumeatar.v evidence put rorttard by him aro more consistent with the real state of affairs than defendant s b. are denial of knowledge that ■ plaintiff was to receive a commission item the othev party to the exchange rf ' properties. Plaintiff is entitled to recover the amount claimed,' am] judgment will be given accordingly." (>ats | amounting to £7 7s, were allowed.

, INTER-PLEADER SUMMONS. An inter-pleader summons caso was heard before Mr. E. W, Burton, S.M., in which Price and Lord proceeded against Sirs. L. Popplcton and G. Robinson. Ihe proceedings arose out of tho seizure by the bailiff of the court of a pony which one Robinson alleged to bo his, but- which plaintiffs, who were proceedmg against Mis. Poppleton on a judgment obtained against her, alleged was the property of Mrs. Pop-plet-on. The evideneo was to the effect that no salo -of the pony was made,to Robinson.

The magistrate found that the ownership was in Mrs. Poppleton, who was rightly subject to the process bv distress warrant.

UNDEFENDED CASKS. Judgment was given 'for plaintiff by default in the following undefended civil cases:—Loudon "Times" v. H. Bloomfield, £8 I3s. Cd. costs £1 12s. Gd.: Salens Moore v. Jean Gibson Oaulter, costs £1 'Is.; C. Pratt and Co. v. Charles Chilcott, £2;> los. 2d,, costs £3 fls.; A. and P. Feed Co., Ltd., v. O. G. Potts, £11 Gs. ad., costs £2 145.; Novelties, Ltd., v. (J. Mitchell, £5 Bs' 3d., costs £1 3s. fid.: Townsem! and Paul, Ltd., v. James Stevenson, £2 lis. fld., costs 10s.; Buttmvorth Bros. v. George Sliatr.ey, ,£3, costs 10s.; Kirk•cftldio and Stains v. Mary Jensen, £1, costs 135.; same v. William Bovan, sen., £1 12s. Gd., costs 10s.; samo v. Yal. E. Hitcliings, £3 Is. Bd,, costs 10s.; E. F. Jones v. Harold A. Oliver, £2 lis,, costs os.; W. J. Udy and others, as ex seniors of T. J. Hawse, deceased, v. J. H. Lf'evers, 15s.- 7d.. costs 55.; J. W. Campbell v. Victor Olson, £10 2s. Ctl., costs lis. Cd.; Wellington Dairy Karni' ers' Co.-operative Association, Ltd., v. F. S. Harrington, £23 10s. fid., costs £2 17f.; Albert Henry Cock v. Philip Basil .Atkinson, JL'o (is., costs £1 35.; I',. W. Mills, Ltd., v. Thomas Moore Corlet, costs- «mjy, 1."5.; Commercial Aaoncy, Ltd,, v, J3entiiM<w Ca>op<?rft<iv«i Association, £18 3s. Bi, costs £1 10s. Sd,j E.

C. Jloye v. F. Hiscocks, £2 17s. 3d., costs 135.; Wellington Publishing Co. v. Young-mid C 0.7 £2 Bs., costs «s. • .«amo_v. A. Rocs, £12, costs 155.; It. C. Gibbons and Co. v. Edward Fuller, Us. fid., costs 55.; 1 ISros. v. Walter liend, £1 15s. I'd., costs lis.; Commercial Agency, Ltd., v. J. 11, Morry, 35., costs 55.; Bamiatvno and Hunter v. •J. B- Mnir, £7 16s. 7d., posts-£l 3s. Gd.; A. Knoivleys v. 31arv Hughes, £2 25., josts 10s.; E. W. Mils, Ltd., v. .James l'ostor Adams,,£2s is. 10tl., coats £2 14s.

JUDGMENT SUMMONSES. James Oswald O'Sullivan was ordered to pay £18 10s. 6d. to AY. 11. S. Moorhouse and E. P. Hadfield bv February 12J._C. Trickett to pay W'.LC., Ltd., £15 1.75. lOd. by 'February 12; Norman Campbell to pay £16 os. 'lid. to Stew-art-Timber Company by February 12; A. Lister to pay W. Ji. Summers £6 los. by February 12; W. Hackotfc to pay £10 os, 6d. to \Y. Wiggins, Ltd., hy February 12 ; Alonzo Dwan to pay £6 12s. to James Hell by February 12.

CRIMINAL SIDE. Jean Leahy and Rose Frase'r,. who were charged with importuning, were each-sentenced to one month's imprisonment. For a similar offence, Tinoy Ifogors was lined 10s., with flic option of seven days' imprisonment. For insobriety, Harold -Mucklebridge, fined a similar amount. Another first offender was convicted and discharged. was 1 fined 10s. One first offender was fined a, similar amount, but another offender was convicted and discharged.