SUPREME COURT.

Evening Star, Issue 3553, 13 July 1874, Page 2

SUPREME COURT.

CIVIL SITTINGS.

Monday, July 13. (Before his Honor Mr Justice Chapman, and Common Jurors).

Johnston v. Mouat.— On this case being called, Mr Stout said he appeared for the defendant. His Honor : Who appears for the plaintiff.—Mr Stout; I am informed that nobody appears ; at least, I understand the plaintiff (Catherine Johnston) will not appear. I therefore ask that the plaintiff be nonsuited.—The plaintiff was called, but, not answering to her name, a nonsuit was granted. Macredik and Another v. Kirby.— Mr Macassey, with whom was Mr Scout, for plaintiff; Mr Barton, with whom was Mr Howorth, for defendant.—Mr Barton asktd that the case be pub at the bottom of the list, on the ground of the indisposition of Mr G. W. Eliott, a material witness, Mr Barton produced the medical certificate of Dr Hulme, testifying to the inability of Mr Eliott to attend Court.— The application for a postponement was opposed by Mr Macassey. After discussion Mr Macats-y suggested that if an adjournment was granted, it would be imperative that rule 35, as to costs to be paid to the other side, should be complied with.— Mr Barton considered, the application unreasonable. His Honor did not think so. Had there not been opposition, he could have put the case at the bottom of the list. In the present instance, however, the costs would amount to only a few pounds, the expenses of a few Witnesses, for a single day.—Mr Barton : The absent witness is a material witness; we did not make him ill; therefore, we should not be made to suffer.—His Honor directed that the case should be put at the bottom of the list, ©n defendant paying the costs of ibe day. This Mr Barton, on beha f of the defendant, declined to do, and the action was then proceeded with.—MiBar ton applied for a rule for a commission to examine the indisposed witness. -His Honor advised counsel to fill an affidavit, which was ultimately dene.—Mr Stout, on behalf of the plaintiffs, then opened the pleadings. He stated that by a deed of lease, dated May 10, 1872, made between the parties, they demised a certain parcel of land, Ukatia district, together with a farm house and other buildings, for a term of fourteen years, from June 1, 1871. It was also provided that if, at any time during the term the rent should be in arrear for twenty-one days, or it there should be any breach of ihe agreement, it should then be lawful for the plaintiffs to enter upon the premises. The agreement also contained a covenant that defendant should keep the property in good repair. It was now set forth that the property was not so kept. Notice as to the necessity of the putting it in good repair was served upon defendant, but the property had not been so repaired within the specified period of three months. Con, aequently the plaintiffs claimed to recover possession. The defendant, by his pi as, denied all the material allegatio. s, one of which was “that he did not keep the property iu good and tenantable repair.” He also denied the allegations in paragraph 6, except as to notice ; and also in paragraph 7 —that three months had elapsed since the serving of the notice. r l he jury were not asked to ass ss damages; but simply to auswer the various i.-sues put, according to the evidence adduced. But the main question to be tried was “did the defendant keep his property in good and tenantable repair?” Mr Johnstone a'so found, when he retimed to the Province, that a purchasing clause had been put in the lease, which he did not authorise his attorney to insert ; otherwise the lease was perfectly good. Jr Johnstone, moreover, found that the property had not been kept in a proper state of repair. After argument, it was agreed to put the following issue • “Did the defendant at any time during the said perio i (three mouths) put the said premises in repair in accordance with the said notice ?” Also, “ Was the demised property in repair at the date, as in the next issue mentioned (the 30th) ?” One of the plaintiffs, Mr Johnstone, then gave evidence as to the state of the property when he left the Colony, and its cond.tiou on his return, [Left sitting.]