Resident Magistrate's Court.

Marlborough Express, Volume III, Issue 126, 18 July 1868, Page 7

Resident Magistrate's Court.

BLENHEIM— Monday, July 13, 1868. [Before S. L. Muller, Esq., R.M.] ROBINSON BEOS. V. JOHN CARSTAIRB. James T. Robinson deposed that defendant had left the province, and summons had been served by leave at the last place of abode. Judgment for plaintiffs for £ll 3s. 3d. and 15s. costs, with immediate execution. J. MURPHY AND MILLS COLE V. P. LAWRENCE. Mr. Turton appeared for plaintiffs, and Mr. Nelson acted for defendant. Mr. Turton stated his case ; that half-a-year’s rent was due at £2 7s. Bd. a month. They had given credit for one week’s rent for repairing the fence, according to agreement. He held further that all fences and the tenement itself had to be kept in repair by the tenant. Mr. H. Dodson deposed he was agent for the plaintiffs. Mr. Nelson objected, as Mr. Dodson had no power of attorney, and could not appear in the matter at all. One might even have a power of attorney to collect rents; but unless distinctly stated, it would not include suing for the rents. Mr. Turton : They had an authority from the plaintiffs to sue. Mr. Nelson would insist upon the document being put in. The Bench held that Mr. Nelson had a right to ask for the authority, but thought that was out of place now, as he would have the power whilst cross-examining to ask for the authority. Mr. Nelson would ask the Bench to take a note of his application, as he objected to Mr. Dodson’s evidence as an agent to sue. Mr. Turton here handed the document to the Bench : “Blenheim, July 10th, 1867. “ I hereby appoint Henry Dodson, land agent, Blenheim, my attorney, for the purpose of renting my cottage and section, being No. 16, on the plan of the Town of Blenheim, and I give him absolute power over the same, both with regard to renting, receiving the rent accruing from the .same, and in all other respects as fully and absolute, as if it were his own property. I specially give him power to demand and receive the rent from the present occupier, Mr. P. Lawrence, and hereby authorise him to appear for me in the Resident Magistrate’s Court to enforce payment of any claim for rent due, should such a course be deemed by him to be expedient, and I further empower him to increase or decrease the amount .of rent to be charged to the present or any future tenant as he may deem advisable. “ (Signed) John Murphy. “ Signed by Mr. Murphy, in the ) presence of Walter S. Allan.” j Mr. Nelson objected to the authority, on account of being improperly stamped. The stamp duty die should have been over those impressions. • The Bench considered Mr. Dodson might be an agent, without even written authority to sue, if he swore he was an agent. Mr. Nelson requested the Bench to take note of the objection, that the stamp die should have been impressed over those stamps.

Mr. Dodson said he had asked for the rent, but Mr. Lawrence had refused to pay, saying he had a set-off for fencing. Mr. Nelson said £3 ss. had been paid into Court.

Mr. Dodson said he agreed to allow a week’s rental for fencing. By Mr. Nelson: The conversation took place in the office after the floods. Mr. Turton thought Mr. Nelson ought only to cross-examine upon what he had questioned him.

Mr, Dodson did not remember whether it was when the floods were up, but he believed it was after the floods. Mr. Lawrence said the fencing had been injured. He -authorised him to repair the fencing, as he represented that a few shillings would do it. When he left him, he had the impression that a week’s rent or a shilling or two in ore would pay for the repair. . j The Bench: A tenant from year to year

was responsible only for permissive waste. Mr. Turton read an authority showing that fences on land had to be upheld by the tenant.

The Bench . That was rural property. Mr. Nelson: If Mr. Dodson had refused to put up the fence, Mr. Lawrence had ■ a right to do it at plaintiff’s expense, otherwise he would have been liable for the damages that might be done to the property by cattle, &c. ■ The Bench: If £2 10s. werb allowed yearly for repairs, that settled the matter. Mr. Nelson: If Mr. Dodson did not intend to pay a fencing claim, why did he allow 6 months to run, unless upon the grounds of a considerable set-off? Phillip Lawrence deposed that he took the house from Murphy for 12 months certain for 11s. a week, payable monthly. It was in veiy bad repair inside, and he was allowed £2 10s. for painting and papering. He had laid out more than that. The year had expired for which ho had taken the house, and there had been no new agreement. He paid his rent whenever he was asked for it. The last paid was for three months. Mr. Dodson had never allowed but one £2 10s. In the great flood there were 3 feet 2 inches of water in the house. A strong current ran over the fence. The creek flows on the boundary of the land. The whole of the fence was carried away. He had made enquiries after it but, nothing had been found. He told Mr. Dodson that the whole of the fence had been washed away, and said he wanted a new one put up. Mr. Dodson said he had better get it put up. He (witness) would not have put it up for a week’s rent; he would sooner have left the house. The set-off contained 4s. for putting up the gate, £7 for posts and rails, £1 7s. for making the gate, and £3 for putting up the fence. By Mr. Turton : He was never threatened to be summoned for the rent. He had always paid when applied to. The horse did not break the fence down, as he had taken it to the Victoria. He was authorised by Mr. Dodson to put up the fence, deduct it from the rent, and bring the vouchers. When he brought them he said he wouldn’t allow five months rent for the fence—“ that he ought to have retained the fence. “What?” he replied, “get into the water and save it, he wouldn’t do it for an hundred fences.” The conversation was in the back room or store. lie never said he would only allow him- a week’s rent. No sum was named ; he was to bring the vouchers, which he did, and was told to leave them, which he did for three or four days." When he went back Mr. Dodson said he would not pay it, and would give, no reason. He did not say he never authorised him. He did not take legal advice before he put the fence up. Thomas Maxted lived opposite defendant’s. The whole fence was submerged, and was carried away by the current. He did not see it go down, but he was certain it did.

Mr. Nelson argued was it natural that a tenant from month to month should expend a sum equal to five months’ rent to replace a fence carried away by an event over which he had no control, upon the promise of a week’s rent ? Would a person not sooner leave the house than do it ? Take the equity and good conscience clause, and they must see that Mr. Dodson would have had to put up the fence iu justice to the tenant, and to protect the house and grounds. The Bench differed from both the legal opinions. Mr. Turton had stated that the tenant was obliged to put up the fence as a yearly tenant, but that would only apply in the case of rural land, or of a lease. Mr. Nelson had said his client was a monthly tenant, but the Bench took the position that he was a yearly tenant. The landlord had to keep the property in repair or the tenant could leave. But he had no power to put up the fence and charge the landlord. Mr. Lawrence said he had been authorised to put up the fence, but he should believe Mr. Dodson. Judgment for plaintiffs for £l3 135., and £3 3s. costs. Mr. Nelson asked what decision his Honor had come to in the case of plaintiffs or defendants appearing as witnesses,. The Magistrate said there had been a want of courtesy on the part of the bar in not coming to his private office, and giving their opinion. He could therefore say nothing at present. MOKEIS SEXAAEK V. HENRY PASSAH. Mr. Nelson, acted for plaintiff. Morris Sklaark deposed that on the 13th of September lastj he sold to defendant in his shop the goods, which were duly entered at the time in his day-book, produced. He made them up in a parcel and delivered it. Henry Passau said he had no recollection of having the things. It was a month after before he was told of them. He was in town one day. He could not recollect all that took place then. He did 5 not recollect being in Sklaark’s house. Others from the

station had called after a pat&el. He did not tell them to do so, but he supposed they thought he must have got: drunk and lost it. He-felt seedy next morning, ’so he must have been drinking. He had u tooth taken out, and had laudanum several dines that afternoon.

Judgment lh|if plaintiff for £3 9s. 6d., with costs.

nYTHEfijj Mx» .tait v. joust carstairs. ElijahS-By U k-I I deposed chat the goods had been Supplied to defendant. Judgment for plaintiffs for £ls 3s. 10.Vd., and 15s. costs, with immediate execution.

HARRY SIiIJIONUS V. JOHN RARTON. Sippnonds said he was a carpenter, afii| he suecPior a balance for work done, judgment for plaintiff for £3 4s. (id., and 225. costs.