DISTRICT COURT.

New Zealand Times, Volume XXXIII, Issue 5504, 16 November 1878, Page 3

DISTRICT COURT.

Feiday, November 15. (Before his Honor Judge .Vlansford.) ' MALL V. BIEOH.

An action to recover possession of a twostoreyed wooden cottage in Wingfield-street, owned by the plaintiff and occupied by the defendant. Plaintiff also claimed £l3 165., the difference in rent between 7s. a week and 14s. a week since last Jul}-. Mr. Samuel appeared for the plaintiff, and Mr. Ollivier for the defendant.

Mr Samuel, in opening hi 3 case, said that the plaintiff some years ago let hi 3 cottage to Mr. A. Smith, who was in the Civil Service, at a rental of 7s. .a week, rent to be paid on the first day in each month. Tho defendant Birch was Smith's servant, and always paid the rent. About twelve months ago Smith left the cottage, and Birch agreed to take it. Hall found thai similar houses were fetching aa rent 15s. a week, but he agreed to let defendant stay if he paid the rates in addition to the rent. In May last he gave defendant notice to quit, but defendant had not dooeeo. The defence was that on account of defendant repairing the cottage he was to have possession during his lifetime. The evidence waa then proceeded with as follows :

■William David Hall, wheelwright, deposed that he waa the plaintiff in the present action. He knew tho defendant. He became witness's tenant at the rate of seven shillings a week, payable monthly. Defendant had notice to quit on tho 18th May. Possession wa3 not (riven. Never understood that defendant was to have possession of the premises as long as he (the witness) lived. Never had any special agreement with him. On one occaaion defendant asked for a twelve months' tenancy. Have not had much experience in letting property. Had never followed his tra'le for the last nine years, and was dependant on the rents for support. He considered 15s. a week would be a fair rental for the property. Witness always paid the Corporation rates. Defendant never paid the rates. Witness said on ono occasion that if defendant did not pay the rates the rent would be raised.' It was never agreed that defendant should make alterations In the house. Never asked him to execute repairs. By Mr. Ollivier: It would be about twelve months ago when the first conversation took place -relative to defendant paying the rates. It might have beer, two years ago. The defendant has not kept the house in repair. He papered some of tho rooms. Witness painted the house twice since defendant has been in it, but received no pay for it.

Mr. Ollivier moved for a nonsuit on the ground that the dato should be shown explicitly on which the tenancy was commenced. The learned counsel pointed out that at first it was stated that the tenancy commenced rather more than a year ago; then during cross-examination it was shown to be more than two yearn ago. Mr. Samuel contended that it was not necessary to show when the tenancy commenced, but when it terminated.

Mr. Ollivier laid he would offer no evidence, and would ask bis Honor to direct the jury in the case, or eke nonsuit the plaintiff at once. . His Honor said ho would not at present nonsuit the plaintiff, but would take a note of it •

After Mr. Samuel had replied, his Honor directed the jury, and explained to them, that the principal point for them to decido was ■whether there waa suflicient evidence to Bhoiv that the" tenancy was a monthly one or a yearly one,

The jury found a verdict for the plaintiff on all the issues. Mr. OUivier then, pursuant to leave reserved, moved for a rousuit on the ground that no evidence of the actual date of the- commencement of the tenancy haviog been given, the notice to quit on the Ist of July was insufficient, as that day could not be shown to be the expiration of the tenancy. He relied upon Doe on d. Fin'ays.m v. Bailey, 5 C. and P. 67. Mr. Samuel argued that by the 6th section of the < "onveyancing Orninanco it was provided that no lease should be valid unless made by deed, and that the decision in Young v. McKinnon (Mac. 164), only went to the extent of affirming that this provision did not extend to implied demises created by payment of rent, and that therefore the only tenancies capable of existence in New Zealand without a deed were those arising by implication of law from the payment of rent, which payment constituted the tenancy and determined its terms In this case rent was always paid and became due on the first day of each calendar month, and the first day of a calendar month was therefore clearly the date at whicb the tenancy must expire. If the tenancy is to be com puted as from the first day of a calendar month then the expiration of the month ia the same day of the ensuing month. The case relied on by the defendaut did not at all support such a hardship as the preventing of a landlord from recovering possession of his property merely because he could uot recollect the exact day on which the tenancy commenced. When the terms of the tenancy were clearly fixed, and the dates at which rent became due ascertained, no such objection could arise. He cited Wondfall, page 180, Huffield v. Armitstead, 7 C. and "P., 58; Doe on d. Robinson v. Dobell, 1 Q.B. SOS; Doe on d. Matthews, 11 Q.B. 675, aud cases in " Fisher's Digest' under heading " Expiration of Tenancy." Mr. Ollivier having replied, His Honor made an order for delivery of the premises in one month, reserviug his decision on the nonsuit point for a fortnight.