DISTRICT COURT.

Evening Star, Issue 3830, 3 June 1875, Page 2

DISTRICT COURT.

Thursday, June 3. (Before His Honor Judge Bathgate.)

•Tame* Kennedy v, Robert Chapman.—Claim 1.196 Is 61, amount of valuation payable by defendant to plaintiff in respect of certain fence*, buildings, and improvements on certa u lands belonging f 0 defendant, situate at !.all*way Bush, lately held by plaintiff under lease fiom •I b ndaiit. Mr Macassey appeared for plain--11, ami Mr btout defended. For the defence idieie was pleaded a general denial; thatdefendawi- never promised to pay the plaintiff the. claims suul for; and that tho fencing for which plaintiff claims is not his pro-perty-In stating the case, Air Macassey said that at the expiry of the term of lease valuators were appointed by plaintiff and defendant ; and as tnere were discrepancies iu their valuations plaintiff put in an intermediate claim Defendant then declined to satisfy the claim, and this action was consequently brought.-Plaintiff said that he held a farm of i ighty acre* at Halfway Bush under a seven years lease from defendant, from November, 1667. The agreement, which he Lad lost, provided that he should get valuation for any improvements at the expiry of the term. [Air btout objected to oral evidence of what had taken place so many years ago, and his Honor took a note of the objection.] When the lease expired witness called on defendant for the purpose of getting valuation, and it was agreed that witness and plaintiff should appoint valuators. This having been done, Mr Chapman, junr., Mr Black (defendant’s valuator), Mr Hogg (wit! ness’s valuator), and himseif met on the farm and took measurements. The claims now sued for weie the result of that valuation. The fences and house iu question were put up by witness. He had frequently seen Chapman af.ev the valuation, and had been promised a settlement.—The valuators (Messrs Black and Hogg , 0. R. Chapman, and others having been examined, Mr Stout submitted that plaintiff must be nonsuited. A legal promise was simply a valid demise, and the Court could not pre aunie that there was a covenant, and this was what was! asked to b<; done. To a yearly tenancy arising by presumption of law—the rent having been paid—the covenant cannot be annexed. He quoted Young v. M'Kinnon (Macassey s Reports) for the purpose of showing tbat his Honor could not annex the covenant whereby defendant should be compensated for improvements. He further pleaded as a nonsuit point the Statute of brands, as the improvements were not to be performed within a twelvemonth. The agreement must be in writing.—Mr Macassey submitted that there was nothing in the points raised. As to the point under the Statute of Frauds, he contended that when all required to be done had been performed on the one side, the other side had only to pay.—His Honor decided to take time to consider the points raised, and for that purpose adjourned the case for a fortnight.— Mr btout said that his case rested cn the nonsuit points.