POSSESSION OF A TENEMENT

Pukekohe & Waiuku Times, Volume 9, Issue 515, 19 March 1920, Page 2

POSSESSION OF A TENEMENT

JOHNS V IWcARTHUR. At the Magistrate's Court yesterday Mr. F. K. Hunt, S.M.\ delivered judgment in the cases, Johns v. McArthur and McArthur v. Johns, fully reported last Court day. ■ In the course of his judgment, Mr Hunt said the first case was an application for possession of a tenement from Mr. McArthur, who, Mr. Johns contended, had notice to quit; and was holding over. The question for determination was one wholly and solely as to the "validity of the notice, and at the original hearing, without going into the matter, he thought the notice was ba d, but on consideration, and on perusing several authorities he had changed his mind, which he had had the opportunity to do in the meantime. The notice" to quit was given, and posted on December 29, 1919, and Mr. McArthur received it on December 30. The notice stated that the then landlady, Mrs McKernon, required possession four weeks from January 2, 1920, and the date was found to be January 30. Therefore it was clearly Mrs McKeanons intention that Mr. McArthur should vacate the premises on January 30. As he had held previously that Mr. McArthur's tenancy was a monthly one, he held the notice was good. As he had determined the notice to quit was sufficient he entered judgment for Johns with costs. It being well settled law that the form of the notice is immaterial provided it indicates in substance and with reasonable clearness and certainty, the contention on the part of the person giving it to determine the existing tenancy at a certain date. He quoted the'cases of Ardhern v. Bellmon, 4 Ex div 201, and Gardiner v. Ingram 61 Law Times, 729, bearing on the case. According to these cases, Mr. Hunt added, this notice does so.

Mr. Basley intimated that Mi McArthur had been successful in obtaining a house and that he had moved into it the previous evening, md that possession would be given to Johns to-day or to-morrow. THE ACTION FOR DAMAGES.

McARTHUR V. JOHNS. The action for dmaages, McArthur v. Johns, was next dealt with. Mr. Hunt said that once the notice to quit had been held to be good and sufficient, the tenant then was the trespasser, and defendant had his statutory remedy to apply to the Court in a legitimate manner for an order for possession of- his premises, as has been customary in this and other districts, but defendant also had his common law remedy of quietly obtaining possession of the premises'if he could without committing a breach of the peace. This course apparently the defendant decided to take upon himself without obtaining legal advice on the matter. During the original hearing and the argument of the case, etc., the sympathies of the court were with Mr McArthur, as he considered it a monstrous thing for a landlord to gain access to the tenant's property and act in the manner in which Mr. Johns did. Such action was greatly to be deprecated, and he trusted he would hear cf no similar cases of this kind in this district. The court was there and the law made ample provision for a landlord to legally obtain possession of his premises. Mr. Johns was saved damages through the opportune arrival, a few days before the final argument, of an English case decided in the English Court of Appeal, and which decision he was bound by. This case had decided that what had previously been considered and acted upon for many yeais as good law, and which decisions Mr. Basley had based his legal argument on were now bad in law. Mr. Johns was very fortunate in having judgment given in his favour. By this decision he did not wish it to go abroad that landlords had legal right to go into or break into a house occupied by a tenant. It was a bad thing for a landlord to break into a house either forcibly or peaceably. He was sorry he could not give Mr. McArthur judgment, as he was bound by the English Court of Appeal's decision in the case, Hemmings and wife v. Stoke Poges Golf Club and another, page; 77 Times Law Reports, vol 3G, heard on November 25, 1919, and decision given subsequently. The decision of this case proved the law from 1841 to date to be .reversed. Mr Hunt added that it was a luckything for-. Mr. Johns that a constable was present, and he saved himseFf damage through this. Costs were allowed Mr. Haddow, who appeared for Johns, according to scale. An application for costs for. Johns was i'.'fused, the Magistrate pointing out Hiat he had laid down a rule and was not going to encourage businessmen to come to the court and squeeze expenses out of the defend- • i-.is. If a labourer came to Court t<> collect wages due, then he would allow the man expenses, but in this case Mr. Johns could not get witness' expenses. .