S. M. COURT.

Manawatu Herald, Volume XXX, Issue 3782, 21 January 1908, Page 3

S. M. COURT.

(Before Mr Thomson, S.M.) The following civil cases were dealt with at yesterday’s sitting of the S.M. Court: G. W. Woodroofe v. Bessie Smith claim £l7 13s 2d, by default, costs £i 1 is 6d ; Smale and Hay v. Wong Lee, claim 21s, by default, costs 6s ; same v. J. Holland, claim £ 1 10s 6d, by default, costs 1 is; J. W. O’Brien v. F. Shadbolt, claim £7 7s, by default, costs, 27s 6d ; Whiti Rapana v. F. Webb, claim 8s 6d, adjourned on application of defendant to Levin on 3rd April, at 11 a.m,, plaintiff allowed costs 21s; P. Johnstone v. Bessie Smith, claim £2OO, adjourned sine die to come on at Palmerston at seven days’ notice; E. E. Hussey v. Alex Morgan, claim 4s gd, by default, costs 5s ; G. Brewer (Moore) v. Alex Morgan (Read), claim £6 1 os rent, defendant admitted the debt, possessor to give up house at three days’ notice. R. Walker was convicted and fined 5s and costs 7s, for a breach of the Borough by-laws, section 71-S-S-3, in leaving a horse unattended; Wm. Newth, similarly charged, was fined in a like atuount. P. T. Robinson, for allowing a horse to graze on the Borough streets, contrary to the Borough by-laws, section 7 i-s-s-8, was fined ss, costs ns, and witness’s expenses ss. The police prosecuted in the above three cases. GRAYiV. PARISH. Mr L. E. Reade for plaintiff and Mr R. Moore for defendant. In this case Geo. Gray, the licensee of the Post Office Hotel sued Martha Parish, one of the owners of the hotel, fora proportion of the cost of effecting certain repairs and alterations to the hotel, amounting in all to 15s 4d. Evidence, in the case had previously been taken in Wellington and Foxton and argument reserved. Counsel for defendant pointed out that the repairs and alterations fell into different classes —those doue by the plaintiff on his own initiative, those done on the instructions of the police, and those ordered by the licensing committee ; and taking each of the items in detail argued that all ot the repairs came under one or other of the covenants by the plaintiff in his lease, to keep the premises in repair, conduct the house as a licensed premises, obey the requirements of the police and the licensing committee and keep the license in force, and that by the terms of the lease the owners were entitled to look to the lessee to carry out all necessary repairs and alterations for these purposesPlaintiff’s counsel in reply contended that it was the duty of the licensee to carry out the repairs in question in order to prevent the license being cancelled by the licensing bench, and that having done so he was entitled to call upon the landlord to reimburse himHis Worship said that he thought some of the items of the account could not be recovered by the plaiutiff from the owners, and that in regard to the other items he thought the covenants in the lease on the part of the plaintiff to do what was necessary to secure a renewal of the license were not so strict as the corresponding covenants ia the leases in the previously decided cases of Baker v. Johnston and Messiter v. Wollerman which had been cited by counsel. Plaintiff’s covenant to obey the requirements of the police and the licensing committee was limited, he thought, merely to what related to the good conduct of the hotel, not to the effecting of repairs and alterations. If the covenant as to renewals in the plaintiff’s lease were as direct and positive as the same covenant was in the cases quoted, then no doubt the plaintiff must himself be responsible for the whole of the cost of the repairs ; but he doubted if this was so, and reserved his decision for further consideration. ROBINSON v. EASTON. Percy T. Robinson sued C. T. Easton for £25, value of a horse and burial expeqsps, Mr R. Moore for plaintiff, and Mr C. E. Harden of (Palmerston North) for defendant. Evidence was given that the defendant’s horse and cart was left by the driver, Charles Rand, at a house in Norbiton Road, unattended, while Rand went in to deliver meat. During his absence Jhe Jjprsg bolfcdj and the shaft of the cart strqck Rqbiqson’s hprse (which was' tied tQ a neighbouring telephone post) on the head, in consequence of which it was so severely injured that it had to be destroyed. Evidence was given as to tjje circumstances by Chas. Rand and IVfrs Roljmsqa, wife of plaintiff. Evidence of [he yglue gi the horse at wag given by 4 »Wl? e r bf 'witnesses for the’ plaintiff. * Defendant’s witnesses placed the value at £is to j£iß. Mr Harden for the defendant argued at great length that the plaintiff njusj:' m Pfi tfijefr grounds—that jthejre \yas up sufficient proof ? but only an inference from the levideucp, that the accident had actually occurred by defendant’s cart striking plaintiff’s hofse j thqt tfieje hss been qq negligence pn tjje parj of thg de: fendaht in leaving hjs horse unattended while he went in tp serve a cqstou}gr, tbjs b e i n g fb? universal practice, and the by-law prohibiting it being unreasonable and impracticable; and, finally, that the plaintiff had himself been guilty of contributory negligence by having his hpfge (ied to the telephone post, which couusel contended was illegal, and in the absence of which the accident would not have occurred. : w . Mr Moite, in reply, maintained

that the evidence of the plaintiff’s witnesses left no possible , doubt that the accident had occurred in the way alleged ; that the defendant, in leaving his horse and cart unattended, had committed a breach not only of the by-laws, but of the general law, of a nature for which a man was always held responsible ; that the fact of leaving a cart in this way contraty to law being Juniversaliy practised, did not alter the law, but merely led to the assumption that those who did it, did so at their own risk and must take the consequences ; and that there had been no, contributory negligence on the part of the plaintiff because there was no illegality, and none had been shown by defendant in tethering a horse in the street to secure it and not for purposes of grazing. His Worship said he was satisfied that the accident had occurred in the way stated, and that there was no contributory negligence by the plaiutiff. In regard to the question ot negligence by the defendant, after reviewing the evidence at some length, he came to the conclusion that the act of leaving a cart unattended in the street was not the act of a reasonably cautious man, and although it might be very inconvenient for tradesmen to do otherwise when serving customers, still, if they chose to take the risk rather than go to the trouble of securing the horse, then they must be responsible for the consequences of any accident arising. As to the value of the horse, he thought from the evidence he had heard that a fair value would be £2O, and judgment would therefore be for the plaintiff for this amount, together witn £\ burial expenses, £2 12 solicitor’s fee, £1 court costs, and £1 witnesses’ expenses.