Resident Magistrate's Court.

Marlborough Express, Volume III, Issue 130, 15 August 1868, Page 5

Resident Magistrate's Court.

BLENHEIM— Monday, August 10, 1868. [Before S. L. Muller, Esq., KM., and Fredk. Williams, Esq., J.P.] SYMONDS V. HAMOND HYDE. This was a claim to recover £2O, for three months use and occupation of the Commercial Hotel, Grove Road. Mr. H. Turton appeared for the plaintiff, and Mr. Pitt for the defendant. George Henderson deposed that he was agent for the plaintiff. Hamond Hyde rented the premises from April Ist to the end of June, prior to which date it was rented by W. H. Hyde, his brother, at £BO a year. During the currency of the lease produced, defendant paid the rent for his brother. I always understood it to be paid on account of his brother. At the expiration of his lease, defendant’s brother removed from possession, and defendant remained at his own request till the 30th June. I have had conversations with him since, calling his attention to the circumstance of the expiry, as I had another tenant ready. He said it would put him much about to go out then, as he had heard that his lease did not expire till the end of June, and it would prevent him getting in accounts. As a matter of favour I allowed him to stay. The present tenant pays the same rent. No special terms were made, but I understood that defendant would pay the rent for the time. By Mr. Pitt: I do not know of my own knowledge that he admitted his liability. The claim was refused. Defendant was staying on the premises twelve months previously, and I -gave him receipts produced. Some of these are in the name of AY. H. Hyde. At his brother’s request I allowed defendant to go in. I have read the lease, and cannot say whether there is a clause prohibiting the lessee from underletting. I received rent till the end of March from AY. H. Hyde. I do not know whether he is a servant of his brothers; I never enquired. From conversations, I understoodthe brother was taking AY. H. Hyde’s place. I did not ask AY. H. Hyde for the rent. I allowed him to go in, because of the ill-health of the brother. I am in possession of the land; the defendant is not in possession. By Mr. Turton: AY. H. Hyde removed from possession at the end of the term. Honeycomb Cock deposed that he went to demand the rent from defendant, who refused payment, observing that plaintiff had not sei’ved him fairly ; that had he done so, he (defendant) would have served him fairly; he said something about his underletting, and referred to the present tenant Murray. Mr. Pitt submitted that the Court had no alternative but to grant a nonsuit, as the action ought to have been brought against the brother, who was the original lessee. By the lease, AY. H. Hyde had no power to assign the lease to defendant. It had not been shown that defendant was in possession on his own account, he might be a servant of his brothers ; and unless they could show that, they had no right to sue the defendant. Referring to AVoodfall, on “Landlord and Tenant,” he stated that: — “ The leasee being a party to the original contract, continues always liable for rent, notwithstanding any assignment; for it is extremely clear, that a person who enters into an express covenant in a lease continues liable on his covenant, notwithstandingthe lease be assigned over.” It had not been shown that Mr. Henderson had any authority to deal in this matter; and as their case was now closed, it was not competent to produce such power of attorney, even if they had one. - Mr. Turton replied on the merits of the case generally; the demand was for use and occupation, and the objection was only equalled by the assurance of the defendant in not paying the claim. The action could not be brought on the original covenant, which was now useless, except against the original lessee.. Defendant remained as a tenant at will of the lessor ; he appeared as the attorney of the plaintiff, and called Mr. Henderson, and that was sufficient without

a power of attorney; the authorities were all in favour of that view. Mr, Pitt said he would like to see them.

The 'Chairman said that it appeared to the Court that they concurred in the first objection taken by Mr. Pitt, and it would no doubt have been fatal had it not been for the verbal agreement mentioned by Mr. Henderson, from whose evidence it would seem that defendant was a servant to his brother until March last. Plaintiff had, however, allowed him to go on without prejudice, and a specific bargain was made for three months, therefore the judgment would be for the plaintiff forthe sum claimed. Mr. Pitt asked that the ruling of the Court should be clear on the point relative to the non-production of a power of attorney.

The Court said that where a professional man was engaged, it was not necessary to produce any authority, and under the new Resident Magistrate’s Court Act, it was sufficient if a writing were produced. Mr. Pitt asked to be allowed to appeal on that ground. The Chairman said that it did not require permission. As it amounted to £2O, it would be better to try to settle the case between the parties, as it was merely a dry technicality; and the case, even were defendant successful on appeal, a new action would be brought, when the authority would be produced. The Act in question gave the Court the power of dealing in such cases according to equity and good conscience, and considered the equity of this case would be met by the judgment given, and consequently refused the application. Judgment for plaintiff for £2O, with £4 4s. costs.

Mr. Turton applied for immediate execution, on the ground that defendant had used expressions just now that he would never pay it, but sooner rot in jail. Mr. Pitt opposed the application until good cause had been shown for setting aside the custom of allowing a week’s time. The Bench declined the application. EOSE BEOS. V. LEWIS.

A claim for £2l 12s. Bd., on a dishonored promissory note attwo months, with interest. Mr. Turton, for plaintiff, said a set-off had been lodged against the bill. Plaintiff:' said the action was for the promissory note, and not for all the money due to him by defendant. Joseph Hose, farmer, proved that defendanTTgavellim a bill for £2l, at two months, and before that he had an order on the Chief-Postm aster. Mr. Turton asked for the promissory note, and pointed out to the Bench that the bill had been assigned to Joseph M'Artney, and therefore the action should have been brought by him, and not plaintiff. The Bench said the note was evidence, showing that £5 had been paid on the face of it. Plaintiff said the £5, as well as £2 12s. 6d., was reckoned by him against a further account owing by defendant, for which he had no wish to sue at present. The Court said the £5 would be deducted from the claim sued for. Mr. Turton applied for costs, as against the plaintiff. The Court did not think it was a case where plaintiff should pay defendant’s costs. Costs of Court would be alio wed to defendant. Mr. Turton applied for time to pay the amount, and the Bench said that according to the circumstances of the defendant, it would be well to accept the proposal to pay £4 per month, which was agreed to. The costs amounted to £l 1 Is. EWAEX V. CAEKEEK. An action to recover £l4 on a promissory note not paid at maturity. The defendant did not appear. Mr. Turton, for plaintiff, called John Ewart, who proved the case, and judgment was given for the full amount, with £3 2s. 6d. costs. Immediate execution granted. BILLY SMITH V. ATT WOOD. This was an action to recover £23 2s. 3d. Mr. Nelson appeared for the defence. • Plaintiff objected that a set-off could not he allowed, as it had not been served two clear days. Mr. Nelson did not think that plaintiff’s interest would suffer by admitting it, hut he. might urge an adjournment if he thought it necessary. Plaintiff agreed to waive the objection. W. Smith, shopkeeper, Blenheim, supplied sundry goods, and performed services by his wife to defendant and his family to the amount claimed," and had sent the bill in, but it had not bpon paid.

Mr. Nelson would admit all the items since defendant’s wife’s death. He remarked that there were no dates in the account, and on the Court pointing out a similar omission in the set-off, accounting that defendant’s books were destroyed by fire, he contended that there was a settlement of accounts immediately after Mrs. Atwood’s death.

By Mr. Nelson: The book produced is my account-book ; they were put on a slate, and entered next morning. We were informed by his daughter that defendant refused to pay the account. Mrs, Smith, wife of plaintiff, proved some portions of the account for nursing, dressmaking, &c.; but having a difficulty of hearing Mr. Nelson’s questions, he gave up asking any. ' ; Mr. ‘ Nelson said that last witness had, when Mr. Atwood wanted to pay her, said the account was the other way, and she was really indebted to plaintiff in a larger amount; besides which, several items would "be proved to have been paid for. John Atwood did notTemember receiving any goods from plaintiff, but remembered sending them a pig and other matters. Mrs. Smith declined to receive any payment for her services, as his wife had always been such a good friend to her. He believed much more was due to him than was charged in the set-off, and remembered deliveringseveral things charged for. Caroline Atwood said three wincey jackets charged for were net had by any of her family. An item of one shawl charged, saw her mother pay for. Took Mrs. Smith down on one occasion, when she remarked that were her mother to die, she did not know how she would be able to pay her, as sbo owed her so much. [Remembered many goods being delivered to Smiths, and took some herself. Was present when Mrs. Smith was leaving, and heard the conversation with her father. Since then plaintiff had had not done anything for the family. Had no sweets, cakes, or candles. Emily Adams was present at the time of her mother’s sickness, and had a conversation relative to Mrs. Smith being detained. She said she need not fear, as her father would pay anything she liked to charge. She replied she did not mean to charge, but came as a friend. After the death she repeated a similar statement. Ann Barnes was present after the death, and heard the conversation as related by defendant. Knew of no wincey dresses. The Chairman said the Bench had paid great attention to the case, and endeavoured to sift the evidence, and had come to the conclusion to give a nonsuit, defendant to be allowed £3 10s. costs. [Before S. L. Mullee, Esq., K.M.] WILLIAMS V. T. 300KEE. This was a claim of £9 10s. for sheep sold to defendantj who did not appear. Mr. Nelson, for plaintiff, said £6 had been paid into Court on account. F. Williams proved the debt, and tbe Court gave judgment for £3 155., with 245. costs.