RESIDENT MAGISTRATE’S COURT.

Evening Star, Issue 3012, 14 October 1872, Page 2

RESIDENT MAGISTRATE’S COURT.

This Day. (Before A. C. Strode, Esq., R.M.)

JUDGMENT. Proudfoot v, Hassell.—As the judgment I am about to give will be likely, unless reversed upon appeal, to affects large number of similar questions, I think it right that I should set out the grounds upon which I have come to ray decision. The 12th section of the “ Otago Municipal Corporations Empowering Act’ provides that “If the Council shall put a kerb to any footpath, to which no kerb has already been put, the Council may require the owner of the land abutting on such footpath to pay for the kerb put opposite the land of such owner,” In this case, it appears that the Council has put a kerb to the footpath abutting on the plaintiff's laud, aud the plaintiff, as owner of the land, has paid for it. .She now seeks to recover the amount from her tenant (the defendant) by virtue of the lease, which provides that the rent shall be paid “ clear of all present or future taxes, rates, charges, and other outgoings whatsoever payable during tho term, whether by the landlord or tenant, in respect of the demised premises, including the expense of erecting and maintaining party fences,” all of which outgoings the defendant covenants and agrees to pay aud discharge. I have looked into the cases cited by the learned counsel —Payne v. Burridge, 13 L.J., N.S., Exch, 190; Sweet v. Seuger, 2 C.8., N. S., 119; and Parish v. Sleeman, 29 L.J., Chan. 96—and am of opinion that they scarcely apply to the case under consideration. In all of them the incidents were different from those of the present case, and in the two former the words used were much larger and more comprehensive. Moreover, in the more recent case of Tidswcll v. Whitworth, 36 L.J., C.P.

103, the decisions in the first two cases have been held to “have gone quite far enough.” The last mentioned case appears to be nearly parallel with the present, the chief difference being, that iuTidswell v. Whitworth, a duty to pave, was primarily thrown upon the owner of the land, and upon his default, it was done by the Council at his expense, whereas here the owner has a concurrent right with the Council to put the kerbing down, and if he shall fail to exercise the right before the Council shall do so, it then becomes his duty to pay for the expense. From the case, therefore, of Tidswcll v. Whitworth, and from the 12th and 34th sections of the Act, I obtain the grounds of my decision. The charge is imposed upon the owner and not upon the occ ipler of the abutting land, and if we look at the methods provided for the recovery, we shall probably be helped thereby to arrive at the intention of the legislature as expressed in the Act, and to a proper interpretation of the words of the lease. After the kerbing shall have been done the Council may order the owner to pay for the same, and by the 34th section it is provided that money payable under any order of the Council shall be recovered before one or more justices, and be levied by distress and sale of the goods and chattels of the person mentioned in the order, and that in default of such distress suoh. person shall be committed to gaol for not less than fourteen days nor exceeding three months. From this holding of the owner personally liable in goods and chattels, and in default of distress to loss of liberty, I think it must be held that the legislature intended it should be a personal charge upon him or a charge upon the fee simple. This view is further strengthened by the proviso following, and by the fact that the kerbing having been once put down, no further special charge can be made, it must thereafter be maintained and renewed out of the ordinary revenue of the Council. It is thus a benefit to the owner for all time, and’ it would, I think, be manifestly unjust to make a tenant, the term of whose lease was about to expire, pay for this permanent improvement of his landlord’s property. I am of opinion that the charge in question is not “in respect of the demised premises” within the remaining of the lease, but in respect of the owner personally as such owner of the land, similar in nature te a deferred payment; and also that the words “charges” aud “other outgoings” in the lease must be construed according to the words in whose company we find them, namely, “rates and taxes,” which if not annual, are at least recurrent. For the foregoing reasons, therefore, I am of opinion that the plaintiff is not entitled to recover. Plaintiff nonsuited with costs.

Civil Cases. Moss v. Dlinker!y.—L2, for two squares of glass broken in a shop in defendant’s occupation. Mr Stout for the defendant. The plaintiff said that the defendant took the sbon for a week as a show-room from the 2nd of October, during which period the windows were broken. They were broke by Mr Mills in putting up the shutters. Mr Mills was engaged by defendant to remove Dunkerly’s goods, -For the defence it was urged that plaintiff had no claim until the term of tenancy had expired ; and secondly, it was an inevitable accident. Joseph Mills said he assisted to put the shutters up at the request of Dunkerly, Moss assisting him. They could not get the joints to meet. Moss was assisting the whole time. The window was broken by a shutter slipping. Judgment for defendant. Sauntc v. Carey.—Ll 12s. A claim for balance of rent and repairs of windows broken. Judgment by default for the plaintiff. Wilson and Maddox v. J. A. J. Macgregor. —LIO 13s, the value of a promissory note dishonored. Judgment by default for the plaintiff for the amount, with costs. Several cases were called, but struck out through non-appearance of the parties.