SUPREME COURT.

Evening Star, Issue 3182, 2 May 1873, Page 2

SUPREME COURT.

Yesterday. (Before His Honor Mr Justice Chapman.)

Pindar v, Campbell. —Mr G. Cook moved for an order for review of taxation of plaintiff’s cost. Rule nisi granted, PkoudFoot (appellant) v. Hassell (respondent). —This was a special case from the Resident Magistrate’s Court, Dunedin. Mr Stewart, with him Mr Shaw, for the appellant; Mr Barton for the respondent. The appellant, as landlord, had claimed from the respondent, as tenant, a sum paid for kerbing, and which the former had repaid under the terms of a lease by avhich respondent agreed to pay all taxes, rates, cl a-ges, and other outgoings whatsoever payable during the specified term, whether by landlord or tenant, in respect to the demised premises. The point at issue was whether the tenant was liable under the lease to pay for the kerbing. Mr Stewart, in arguing the case for the appellant, commented on the nature of the covenant, and cited the cases Payne v. Bar • ridfje, 13, L.J., Ex. 190 ; Thompson v. Lapworth,, 3, Law Repoits, C.P. 74, and contrasted those cases with that of Tidswell v. Whitworth , 2, Law Reports, C.P. The learned counsel next urged that inasmuch as the tenant leased the front half of the section, he was liable for the whole of the kerbing; and as illustrating this, said that, supposing a landlord had two tenants, one occupying the front, and the other thorearhalf of a section, and kerbing was expressly mentioned in the lease, only the tenant whose land abutted on the keib could be made to pay. Again, if two persons each owned half a section, the owner of 1 the front half would be liable, and he could not claim contribution from the owner of the back portion. In fact,'the charge was one on the frontage, and not on the value of the land. Mr Barton submitted that the kerbing claimed for did not come within the meaning of the covenant, and that it was not a rate.

His Honor interjected that the kerbing was a charge, at any rate, and perhaps it might be called a special rate. Mr Barton went on to say that, of course, every would depend on its own special circumstances. Moreover, the charge here made was not in respect of the demised premises, but in respect of the whole of the section. The learned counsel cited Berritl v. Duke of Bedford , 8, Term Reports, 602, and discussed the nature of the leases in the cases quoted by the other side. Seeing that the respondent only leased the front half of the section, he could not be made liable for the whole of the kerbing. His Honor asked whether the Corporation would not bo entitled to claim from the owner of the half-section abutting on the kerb, supposing the rear half was conveyed |o sojtne other person. Mr Barton said that the kerb did not abut on the land, but merely on the foptpath. The covenants also in tne cases Waller v. Andrew and Payne v. Bar ridge were more extensive than those in the present lease; the rate was payable by the owner alone, and could be recovered from him only under section 3d of the Otago Impounding Act, 1865. The order must be made against the person pharged. Mr Barton next com raented upon the covenant in the lease, to show that the word “outgoing" must be construed to mean taxes of a like nature to those mentioned therein. He contended that the kerb did not come within the meaning of the convenant, and that respondent ought to succeed. Judgment was reserved. The Court adjourned till Monday.