A NOTICE TO QUIT

Dominion, Volume 15, Issue 70, 15 December 1921, Page 2

A NOTICE TO QUIT

INTERESTING QUESTION FOR SUPREME COURT.

AVhether or not the acceptance of rent after a notice to quit had been given, implied A withdrawal of such notice was a question Mr. Justice Hosking was asked to decide in the Supreme Court on Monday. Tho action before him was virtually an appeal against a Magistrate s decision, and an application for writ ot prohibition. It was one in which Sue Sing, merchant, of AVellngton, sued Herbert Smith, manager of the Phoenix Assurance Company, AVellington, and Irederick Knight Hunt, Stipendiary Magistrate, of AVellington, _ three Chinese being also named as defendants. The statement of claim alleged thaprior to and on Juno 29 last the plaintiff had been a tenant of Smiths of a shop and dwellinghouse (it 11-3 Taranaki Street, at a monthly rental of .£6, under a tenancy determinable at the will or either of the parties by one month’s notice in writing. For the months ended’ June 30 and on July 31 tho plaintiff paid rent- Later, the defendant and Sue Chong Sin, Sue Shun, and Young Suey issued to tho plaintiff a notice to quit.' In subsequent Magistrates Court proceedings Smith’s agent admitted that he had received Xl2 from the presen plaintiff, being two months rent to September 30. Sue Sing contended that the demand for and receipt of rent which had accrued duo after the expiration of the notice to quit amounted to a waiver and abandonment of the notice Mr. F. K. Hunt, tho presiding Magistrate, held that the facts constituting a waiver and abandonment of the notice to quit did not in law constitute any defence or reasonable cause why possession of the premises should not be given up to the present defendant, and gave judgment for Smith. Sue Sing therefore claimed a writ of prohibition to restrain the Magistrate from proceeding further in respect of Ins ejectment from the premises previously referred to Tho statement of defence admitted that the witness referred to in the claim, ono AVilliam Farquhar Eggers, had been called in the previous proceedings "to prove the dispatch of the notice to quit, but denied that Eggers was the gaent of Smith to receive the rent and to give the receipt mentioned. Even it rent bad’ been received by Eggers and a receipt given as alleged, such was not intended as fin abandonment of tho notice to quit. The defence, in conclusion, denied that tho determination of Mr. Hunt) was not corrigible on appeal. Mr E G. -Tellicoe appeared for the plaintiff and Mr. 0. C. Mazengarb for tho defendant. After kg,al argument had been heard His Honour reserved his decision.