SUPREME COURT.

Evening Star, Issue 3557, 17 July 1874, Page 2

SUPREME COURT.

CIVIL SITTINGS. Thursday, July 16. (Befoie his Honor Mr Justice Chapman, and a Common Jury.

Macrbdie and Another v. Kirby. — His Honor, in summing up in this case, said a clear distinction existed between a covenant , put in repair and a covenant to keep in ! repair, and that distinction was obvious to common sense. If a man, in taking premises—or say a farm—undertook to pub all buildings in repair, he was bound to put them iu such a reasonable state of repair as would fit them for the purposes for which they were used. He was not bound to pull down old houses and build new ones ; bathe was clearly bound to put the premises in such a reasonable state of repair as would make them fit for their legitimate purposes, even although they were out of repair before he entered upon possession. But that was • quite a different thing from a covenant to keep them in repair. iSuch a covenant implied that at the time the demise was taken the premises were or ought to have been in a reasonable state of repair. Therefore the law called upon him to keep them in repair during the term of demise. That was the law as regards houses, &0., and as regards fences a similar rule prevailed. If the demise extended over a period of say twenty years, and the fence was a wooden'one which lasted say seven years, then it would have to be replaced every seven years, so that at the expiry of the term it might be delivered over in a reasonably good condition. If the jury came to the conclusion that when the defendant entered into possession of the premises the buildings and fences were in such a broken-down condition as to render them wholly irreparable, then the duty was not imposed upon him (defendant) to repair these buildings and fences so as to put them in a better condition than he found them. If» 0“ the other hand, the buildings, though old, were in passably good condition, then the defendant wa§ obliged -from time to time to make such repairs as would keep them in a condition reasonably fit for the ordinary purposes for which they were intended. Mr Johnston, one of the plaintiffs, went to Europe in the year 1870, and came out again to Rew Zealand in the year 1873. Defendant got into possession of the premises about two and a-half years before plaintiff’s return, so that he could not know what was the state ef the premises at the time of the demise. A few months before he went away, Mr Johnston saw the premises, and at that time they were said to be in a fit state for their ordinary purposes. : lu the meantime, however, they came into the hands of- another tenant, who subsequently left them, and ihey remained untenanted for a period of five or six' months, it was reasonable tp suppose that a farm so left, without anyone ju charge of it, would fall into dilapidation. The important point to be determined was as to the state of the place when defendant took, possession. After being absent for about an hour, the jury returned into Court with the following findings :—I. The property was not in repair. 2. The plaintiff did, on or about the 30th December, serve defendant with a notice in writing, requiring fiiip to put the dwel ing-house iu a state of repair within three months. 3. The defendant did, during the said period of three months, put the premises in repair in accordance with said notice, 4- The period of three months since the service pf tfie notice bad expired before the commencement of this action. And 5. The plaintiffs are not entitled to recover possession, of the land, bouses, and buildings. Mr Barton applied that a verdict might be entered up ior die defendant on the second and fourth findings. The application was granted, subject to any objection that might be stated hereafter. That course, his Honor said, might obviate the necessity for a new trial. Isaacs and Marks v. Gallagher.— This was a claim for Ll5O, due by and upon a bill of exchange.—Mr Macassey, for defendant, moved for leave to put iu a plea of puia darrtin continuance, arising out of the following circumstances. That before the cooimencepieut of the action the plaintiff, Woolf Isaacs, was by an inquisition made in pursuance of the powers of the Lunacy Act, 1868, found to be of unsound mind and lunatic. That |on the 29th day of June last, Abigail A. Isaacs was duly appointed under the said Act to act and be the committee of

the estate of Woolf Isaacs, and on the 3rd day -of July instant completed the securities required of her by law as such committee.— A ttcr the case had been argued by Mr Stout for the plaintiff, the motion was granted, and the case went to trial on the following issues :—l. Did the defendant accept the bill of exchange mentioned in the declaration for the accommodation of plaintiffs ? 2. Did the plaintiffs give any value or consideration for the acceptance or payment of the said bl “ b y the defendant? 3. Are the plaintiffs entitled to recover any, and, if any, what sum, from the defendant?-Mr Maoassey said that, as the defendant was absent, he had no evidence to bring, and under the directi on of the Judge a verdict was returned for plaintiffs. Action yor Malicious Prosecution. Wallace v, Dewar.—Plaintiff claimed damages in respect of an alleged malicious pro. sedition. Mr Maoassey and Mr Stewart ap- : pearod for plaintiff, and Mr Stout for defendaut. After some formal evidence had been called, the further hearing of the case was adjourned till next day.