RESIDENT MAGISTRATE'S COURT. Before J. Symons and Alex. Mackie, J.J.P.

Nelson Evening Mail, Volume 170, Issue VIII, 16 July 1873, Page 2

RESIDENT MAGISTRATE'S COURT. Before J. Symons and Alex. Mackie, J. J.P.

This Day. Charles Harley v. David Man. In this case plaintiff claimed £8 16s for rent of premises let to defendant as a weekly tenant, and £9 6s 6d, the estimated cost of repairs necessary to put them in good order. Mr Acton Adams appeared for the plaintiff, and Mr Fell for the defendant. The defendant admitted £6 Bs, part of the rent claimed, and had tendered that amount to the plaintiff before the action was brought, and had subfequently paid it to plaintiff's solicitors; he denied the rest of the claim. The evidence for the plaintiff showed that the defendant had occupied the premises as a weekly tenant nt intervals for several years past, and continuously for the last two years; thut they were in good repair when possession was given the defendant, but that when the plaintiff went to see them, shortly after receiving the key, some six weeks apro, they were co dilapidated both by wear and tear and wilful damage done, that a valuer said it would cost £9 6s 6d to put them in good and tenantable repair ; he hn.d therefore charged rent from that date, and claimed also the cost of the repairs The defendant raid he h:id spent £20 in building a new smoke-house on the premise.", besides other additions; that he had treated the place as a good tenant should during the whole time that he had been there; that he had done no wilful damage to any part of the premises; that acting under the advice of his solicitors, he had not removed any of the permanent improvements except parts of a piggery which was made of loose boards not tixed to the freehold; and that he had left strict orders to his man accordingly This statement was corroborated by defendant's workman, Marling, avlio said that the premises were always well cared for, and that he had taken away nothing but moveables and loose parts of the piggery; also that he had, at Mr Harley's request, left the key for him at the Trafalgar Elotel on Monday morning, July Ist, down to which date the rent had been paid. Mr Fell contended that the plaintiff's claim for the balance of rent was untenable, as tho premises had been given up and possession taken by plaiutiff. That as to the claim for damages, in the first place no covenant to deliver np pprem i es in good and tenantable repair was implied ag'iost weekly tenants, but only in leases under the Conveyancing Ordinance; and thut even if it were, the evidem c on that point was wholly in favor of the defenflaht; when he delivered them up they were in good order; they might have been wilfully damaged by other persons before plaintiff saw them. There remained only the balance of £6 Bs, which had been tendered and afterwards paid, therefore defendant was entitled to a judgment with costs. MrAdan>B maintained that tender amounted to nothing, unless paid into Court with costs, contending that there was no provision to meet the case in the '-Resident Magistrate's Act, and that the practice must follow that of the Supreme Court, which was as he stated. He al6O .quoted from Woodfall — .Landlord and Tenant, with a view to show that there is an implied covenant on the part of all tenants to repair, and contended that the defendant was stiil the tenant of the plaintiff, he never having given him the customary week's notice: . Mr Eell absolutely denied the correctness of the law as Ijigjl down by his" friend, and pointed out that if -rate practice as to tender was as he had Btateay|any^ person might, by refnsing to accept paympnt when offered, and the9?*suing, compel his Sfcbtor to pay heavy costs. ■* ' The Bencfi, after retiring, gave judgment for the defendant with costs, on the ground that it -was expressly laid down by Woodfall that -there is no covenant implied against tenants atlvill or weekly tenants to repair ; that no rent was payable after Mr Harley had waived the customary week's notice by ascepting the ke,v^Bf!the premises, and that after tender before£e||tion brought if judgment was for no more rf^^p.the amount tendered, the plaintiff was not |jmn|Si to costs. ' ' Kpfc^ Judgment for defendant, with £2 ajj-cost's^ '