MAGISTRATE'S COURT.

Taranaki Daily News, Volume LIII, Issue 321, 7 June 1911, Page 3

MAGISTRATE'S COURT.

CIVIL BUSINESS. A sitting of the Magistrate's Court was held yesterday morning, Mr. H. S. Fitzherbert, S.M., presiding. Judgment for plaintiff by default was given in the case of William Nicholls (Mr. F. E. Wilson) v. Frank S. Drury, claim £3 7s 2d (with costs 10s). A TARATA CASE.

His Worship delivered his reserved judgment in the, case in which Dwan Bros., of Wellington, proceeded against Newton King, as interpleader claimants in the suit of King v. Hubert Collyns. Some time ago Mr. King proceeded against Collyns, who had a farm at Tarata, for £75 2s Id. Judgment on confession was given for this amount with costs, making the total £7B Oa lOd. Later a distress warrant was issued, and Constable Fitzgibbon, bailiff nt Inglewood, went to Tarata to execute it. But he found that, under the Distress and Replevin Act, Dwan Bros., of Wellington, had a bailiff in possession of Collyns' stock for rent due. Constable Fitzgibbon, it was alleged, told Dwan Bros.* bailiff that his warrant, as one issued by the Court, was superior to the landlord's. Constable Fitzgibbon then seized 37 heifers and 2 cows, and it was these animals that Dwan Bro3. now sought to obtain possession of on this interpleader summons. The case wna heard last Wednesday, Mr. Quilliam appearing for Dwan Bros., and Mr. Hutchen for Mr. King. In giving his decision, his" Worship said .that he had looked at .the- documents and considered the points raised. He disagreed with Mr. Hutchen's contention that the proper procedure in distraint had not been adopted by Dwan Bros. With regard to the contention that Dwan Bros, had waived their right to distress by means of their letter and telegram to Mr. King saying that they would waive that right if Mr. - King would give Collyns credit, - and that Oollyns did receive credit, his Worship,, after quoting authorities, said he was not satisfied that there could be a waiver in favor of a third party. He could not hold that the landlord could divest himself of the right to distrain except to his tenant. Of course, Mr. King might have a right to an action for breach of •greemeat against Dwan Bros., and even allege fraud against them. But the question of fraud or collusion between Dwan Bros, and Collyns was not before the Court at present. With regard to the third point raised by Mr. Hutchen, as to the rent due, there was no eyid«nce before the Court on the point. .In the circumstances he held that the landlord had a right to distress, that he did distrain and his. agent was in possession when the bailiff was in, and 'that the interpleader claimants were entitled to hold the stock as landlords.

Mr. fiutchen asked his Worship to fix security for appeal. Mr. Quilliam said he would waive •ecurity. ,'