RESIDENT MAGISTRATE'S COURT

Nelson Evening Mail, Volume XIII, Issue 46, 22 February 1878, Page 2

RESIDENT MAGISTRATE'S COURT

[Before L. Broad, Esq., R.M.] Davies v. Dives.

Action for £35, being moneys retained by defendant on the sale and conveyance of certain mortgaged properties. Plaintiff denied defendant's right to retain these moneys, and accordingly sued him for tlie amount. The case was argued on Monday last (the facts being agreed upon) by Mr Eell for the plaintiff, and Mr Pitt for thg de, fendant. Judgment, which, had been reserved, was delivered this morning by the Resident Magistrate as follows:— Defendant claims to charge ag assignee certain moneys paid by him in procuring a conveyance of the mortgage debt, and also certain costs incurred by him in commencing an action (and procuring an interim injunction) against certain alleged trespassers upon the property mortgaged. He is not entitled to the costs of the conveyance; he bought the mortgage debt from the mortgagee; the mortgagor was no party to the transaction, and the assignee cannot make him pay the costs of the trngsfer. The test to apply to the second matter appears to be thisj were these costs necessary or properly incurred in asserting or defending the rights which his mortgage gave him ? The facts are, shortly, that a person who said he had a license from the mortgager came upon the land and began to cut down the timber. The defendant commenced an action and obtained an interim injunction which has never been dissolved. The alleged trespasser delivered his pleas, but did not move to dissolve the injunction, defendant in the meantime has been paid iv full, and so, having no further interest in the matter, has not proceeded with the action. It is argued that it is impossible for this Court to say whether this was a proper action to bring, because the case was never tried out. l admit at once that it would be preposlerous to say that a mortgagee might begin any number of actions, then drop them without result and charge the mortgagor with all the costs incurred. But that is not exactly the ease here. The defendant did get substantial relief in the shape of an interim injunction, and the Supreme Court must have been satisfied that j he had a prima facie case. That injunction has. never been dissolved, and it appears to me therefore that the costs incurred in getting that relief were properly incurred in asserting or defending the defendants' rights against a person who was damaging the property. If plaintiff says that he ought not to be saddled with these costs he should compel the defendant to go on with the action or take steps to get the injunction dissolved' but as the matter r»iv stands lam compelled to believe that defendant was justified in his proceedings, and that the costs ought to be

borne by the mortgagor. The so called licensee has got all the timber he wanted off the land, the defendant has got all his money and interest, and the dispute between the mortgagee and licensee was brought about by an act of the mortgagor, which apparently tended to depreciate the mortgage 'security.' The mortgagor cannot I thiuk reasonably complain at having to pay these costs.

Judgment for plaintiff for £7 7s and costs,