Law Intelligence.

New Zealand Mail, Issue 229, 29 January 1876, Page 19

Law Intelligence.

SUPREME COURT.—IN BANCO. (Before his Honor the Chief Justice.) . Friday, January 21. samuel v. dunn.

Demurrer to defendant's plea. Mr. Hutchison appeared in support of the demurrer. Mr. Izard contra.

Plaintiff had leased land to defendant on certain terms, and under a covenant not to under-let defendant admittedly had committed a breach. The breach took place on the Bth June, 1875, and subsequently, the 19th June, 1875, plaintiff commenced an action against defendant to recover rent, after a knowledge of the said breach. . Defendant said that was an answer to the plaintiff in the present action for ejectment for breach of the said covenant set out in the declaration. These facts were admitted, and the other fact that there had been complete re-entry on a date subsequent to the forfeiture, but antecedent to the action for rent—in other words, that the plaintiff after the breach, but before the action for rent, unequivocally determined the tenancy under the lease, but the defendant by his plea said in effect that plaintiff by the action for rent wavered the consequences of the breach. The action for rent was not the proper remedy under the covenants, because owing to the breach the plaintiff could re-enter upon the land. The lease was absolutely determined according to the provisions of the lease, but from what took place afterwards plaintiff waived his right to re-entry. The re-entry took place.on the Bth June, and on the 19th June an action Avas brought against defendant for the rent, which became due subsequent to the act which created forfeiture. Defendant pleaded that the act of re-entry was wavered by the suing for rent subsequently. To this plea plaintiff demurred.

Mr. Hutchison contended that an unequivocal act such as re-entry would determine a lease, notwithstanding the acceptance of rent afterwards. Jones v. Carter, 15 M. and W., 724; and Toleman v. Portbury, L. R 6 Q. B. 248.

Mr. Izard submitted that the fact of suing defendant for rent under these circumstances —suing for it as rent and not merely as a debt —was an admission on the part of the landlord that he acknowledged defendant at the time he was so sued to be his tenant. If he had sued for a debt due on a contract no doubt there would not have been an admission of tenancy. The forfeiture for underletting had been incurred before the rent became due, yet after this he sued defendant as his tenant for rent, and he (Mr. Izard) submitted that having admitted the tenancy by an unequivocal act like suing for rent, that was a waver to his re-entry. Derby v. Nichol, 27 I*. J., C. P. 220. Even if he had entered yet he might retract that by consent; and what he had done in this case amounted to a retractation.

The Chief Justice : The authorities say distinctly he could not. Mr. Izard cited in support of his view Shepherd's Touchstone, chap. 14, also Croft v Lumley, 5 Ellis, and Blackburn, 680.

The Chief Justice mentioned Grimwood v. Moss, 7 E.R., C.P. 360, and 41 L.J., C.P. 239; and then said, to his mind, the authorities were perfectly clear upon this point—that any unequivocal act showing the intention of a landlord to take advantage of a forfeiture, puts an end to the lease, and where a lease has once gone, it cannot be set up again. He was of opinion there had been such an unequivocal act in this case, and therefore the demurrer must be allowed, with costs, GRIFFIN V. BRANDON. On the application of Mr Gordon Allan, this case was ordered to stand over till next term. PERCY V. M'KAY. Argument on demurrer to plaintiff's declaration. Mr. Izard in support of demurrer, Mr. Travers for plaintiff. Argument proceeding when the Court rose.' The Court adjourned till Tuesday, at 11 a.m.

BANKRUPTCY COURT. Monday, January 24. (Before his Honor the Chief Justice.) The Court sat at 10 o'clock. RE AMOS BURR. Mr. Buller for bankrupt. The meeting was adjourned till Monday, loth March, accounts to be filed within one month, and notice of meeting for final examination to be gazetted and advertised in the Manawatu Times. KB THOMAS AND ANNE MULMNS, EX PARTE BELL. This was a summons taken out by Thomas Eraser Bell, under the 215th section. Mr. Hutchison appeared in support of summons ; and Mr. Brandon showed cause on behalf of trustees. Judgment reserved. RE JAMES M'CORMICK. Mr. Hutchison moved for a rule to set aside the adjudication, on grounds of irregularity. The rule refused. RE ROBERT EDWARD SMITH. Mr. Allan moved that the matter stand over till 13th March. Ordered to stand over accordingly, due notice to be given in Gazette. RE THOMAS FERGUSON. Bankrupt passed his final examination, /and order for discharge granted. Mr. Allan for bankrupt ; no opposition. RE JESSE WILLIAMS WHITE. Einal discharge granted. Mr. Allan for bankrupt; no opposition. RE ROBERT W. I. CARVER. Final discharge granted. Mr. Hart for bankrupt; no opposition. RE MEYER AND PHILIPS. Mr. Hart (for Mr. Izard) moved for a declaration of complete execution of deed of assignment. Order made as prayed.

RE FREDERICK KENNEDY WILLT*VMS._ Bankrupt appeared in person. Mr. Griffiths, the trustee, presented a rather unsatisfactory report, but after bankrupt had been examined, an order of discharge was granted. The Court then rose.