SUPREME COURT.

Temuka Leader, Issue 1112, 23 June 1883, Page 2

SUPREME COURT.

CIVIL SITTING. Timaru—Thuksday, June 21st. , (Before Kis' Honor Mr Justice Johnston.) Hayhurst v. Matthews and Trezise. John Hayhurst v. Orlando Orr Mathews and Henry Trezise -Action for possession of property and £935 18s 9d, rent and damages.

Mr Joynt, with Mr White, for plaintiff; Mr Stout, with Mr Harper, for defendants. A common jury of twelve was called as follows :—A. Sherratt, A butherland, W Ingram, J Spooner, J. Henderson, B Hoskey, H Brosnahan, H F. Edmiston, M Fitzgerald, W J Coker, F Raddon, ana G Small. Mr A Sherratt was chosen foreman.

This was an action brought by plaintiff to recover possession of a farm of 378 acies held by defendants from him, under a lease for 14 years from February 1873, and to recover damages for breaches of various of the covenants of the lease. From Mr White's statement of the case to the jury, it appeared that Mr Hayhurst in February, 1873, let his farm to one Horace Simpson Brown for 14 years ; that some time afterwards H S Brown mortgaged his interest to J T Brown, of Oxford, and in December, 1877, the present defendants, with the consent of plaintiff, bought the interests of both in the remainder of the lease ; the lease was transferred to them, and it became their duty to fulfil all its conditions and coven ants among these covenants were some to the following effect:—The lesse agreed (1) to plant and fill up any gaps that might occur in gorse or quick fences, and keep all fences in a good and sufficient state of repair ; (2) to properly trim all live fences and clean out all ditchas once a year ; (3) to keep all buildings, gates, and other erections on the premises or to be placed thereon in good repair, and to remove none of these from the premises ; (4) generally to manage and cultivate the land in a good and husbandlike manner, and (5) especially not to take more two consecutive corn crops from it or any poriion of it, and after taking two consecutive corn crops, to take three green crops, or lay the land so cropped down in EnpjHi grass for three years. In the event of the lessees failing to keep the covenants or making breach of any of them, the lease was to become void, except as to past breaches, and the landlord was entitled to take possession of the land and premises and expel the lessees. The plaintiff mentioned that all die covenants mentioned above had been broken by the lessees, whereby his reversion was greatly depreciated, and it would require ft great expenditure of money to restore the land> fences and buildings to their proper condition. On these grounds the plaintiff sought to have the lease declared void, and further claimed compensation for the damage done to his interests as follows:£IOO for breach of the covenant relating to yearly trimming of fences and cleaning of ditches ; £IOO for bad husbandry , £loo,for breach of covenant regarding cropping : £3OO for removal of gates and' fences ; £25 for allowing buildings, gates and fences to fall into disrepair; and £l5O for depreciation of the value of the farm generally, through the breaches of the covenants. A further sum of £l6O 18s 9d was claimed for the occupation of the land and premises, or rent from the Ist July last to the day of recovery. With respect to the covenant regarding cropping (numbered 5), it was alleged that the lessees took a corn crop irom a portion of the land in 1880, and a second crop in 1881, and then only one green crop, instead of three, and in 1883 another corn crop.

The defendants denied having committed any breach of the lease, and admitted that a half year's rent was due, asserted that this had been tendered and refund, and puid the nniojnr, £BO Oh U'\ into Court as sufficient to satisfy all tho plaintiff's demands. Mr E. Denham, Registrar of Deeds, proved that Mr J. T. M, Hayhurst held a po-ver of attorney from his father, and H, J. Lewis, Surveyor, produced a rn<ip of the farm, which was divided into four paddocks, marked A B C D. J T. M. Hayhurst gave evidence to the effect that he visited the farm in October last, and found the fences along the road in very fair condition, and the southern fence, except 25 chains, in a bad state. The dividing fences were good, but gates were out of repair, ditches full of rubbish, the house in need of repair, and the roof of the stable nearly all off. Five chains of fence about the house had been removed ; crops were taken off paddock D in 1880, 1881 and 1883 ; a rape crop having been taken off in 1883 The witness then made a calculation in detail of the cost of clearing the ditches (£l4 3s 6d), of repairing the fences (£l7 16s) ; and of repairing the stables (£2l) ; total, £52 19s 6d. The damage to the land by improper cropping he declared himself unable to estimate, but assessed it rousdily at £IOO. In cross-examination by MrSlout the witness stated that before he refused the rent his fa'her intended to evict tho tenants. The present rent was 8s 61, but it would feuffi which Lad been removed had been erected by the tenants themselves. Edward Pilbrow, G. Djsoo, G. Woodhead, and W. Brogden alio gave evidence

"*V ll * ■"* of the above - The latt6r pr0 * samples or u,. . n |, ea t alleged to be . a green crop, stating that it w4s uot gether ripe, but nearly so. Mr Stout, in opening the defendant's case, said he hoped this was an uncommon kind of case in the district. It was the first he had ever acted in, and he hoped the jury would show by their verdict that landlords could not eject their tenants on paltry grounds.,..He pointed out the great discrepancy between the amount of damages sued for and the amount estimated by the witnesses for the plaintiff, and then remarked that this was not a cuse in which damages were sought, so much as the ejectment or eviction of the tenant, the landlord's motiv* probably being the increased rent—half as much more—he could now get for the farm. He would show that when the present tenant took the farm it was in a very bad state indeed, and-they made a good farm of it," and had put the fences into three times as good repair as they found them.

I After an interruption by His Honor, who said it did not signify in What state the farm was when they took it : they were bound by the lease to put things in repair and keep them so, Mr St<>ut went on to say that the gorse fences were admitted to be in a state of good repair, and there was no special covenant about stake arid wire fences, as- -there" was about the live fences. The wire fenceß could only come under the general covenants, and the law of general covenants required reference to be made to the condition of those fences at the time the lessees took possession. Mr Stout then referred to the buildings, and then proceeded to speak of the alleged breach of the cropping covenant. Dyson had shown that a portion of the 01 acres said to have been wrongly cropped was in wheat in 1880, and other witnesses that there was no grain taken off in 1881, and 1883, and that there was no grain taken off in 1882. How long was toe land to wait after two consecutive grain crops 1 The other side said three years, but the leasa only demanded a three years rest if the land was laid down in English grass. But the tenants had the alternative of taking three green crops instead of put- ' ting in grass ; no time was mentioned for taking of these, and there was no.-, evidence that three greea crops had not been taken oft. He had two defences—one that in 1881 grass saed was sown with the grain, and this not growing well it was ploughed up, and then two crops of rape were taken in 1882, giving three green crops ; the other was that after tho two crops of rape, wheat was sown and cut green, these making three green crops. He would show that a cereal crop out green must be counted a green crop* The defendants were sought to be ejeoted on technical points, and the defence might fairly be technical also. Mr Stout concluded by saying he would show that this tarm was one the best managed farms in the Temnka district, and was even better managed than the 'model' farm of MrHayhurst's on the' opposite side of the road. He then called

Thomas Trezise, one of the defendants, who stated that defendants took the farm in December, 1877. [t waa thea ia a very bad state, and they had spent a good deal or money ia improving the land and fences. There was then a boundary fence of gorse, but very little gorse along the dividing fences. The fences were all in good order in May this year and in October last. The southern boundary fence (between his farm and others) was repaired, and the ditch cleaned in July last along paddocks C and D and part of B, and was left in good condition. The fences were sufficient to keep their own cattle in, and to keep other's cattle out, ind the ditches were clear enough for drainage.purposes. All gaps in the gorse fences wore planted every year, but the plants dying th rough dry weather and the dryness of the batikf, and sheep eat. ing off the young plants, they did not grow. Witness paid half-a-year's runt on the first July last, the day it was due. A.t that time whaat was growing on the 61 acres, which was ' sown in May. It was then six inches high, and Mr Hayhurst must have seen it, but he made no objection when receiving the rent. In 1880 apart of this 61 acres was cropped the rest of it being under various roots. In 1881 the whole was cropped with grass. Grass seed was sovn with the crop of 1831, but it did not come up well, and was not worth keeping, so after feediog it off it was ploughed in and the land sown with rape. That crop was fed oft" and another sown and fed off. It was quii|faffo'ssible to get two crops of rape in- < one year. The land was again ploughed in March, fallowed, and ploughed again and Bown with wheat in May. This wheat was cut for haj, a fortnight before it waß ripe, and he held that it was a green crop. He knew when ha sowed it . that .it was against the term of the lease to take a crop of grain from the ground under grain in 1880(but this did not refer to .the portion of the 61 acres under roots th?t year), and so it was intended to cut it for hay. and the produce was being used, cut into chaff, for feeding stock at the piesent time. The wheat grown on that part of the 61 acres under roots in 1880 they intended to thresh, as they were entitled to do, but not the rest. With regard to the buildings, the witness stated that they put up the stable themselves—an open fronted shed

—and every year the roof was blown off by nor'-westers. .This year it had again b«en re-thatched—the work of two men for a day and a half. The dwelling house had been kept in good repair, but would be the better for a coat of paint. Externally three aides were weatherboarded and the fourth was of V.D.D. palings, the dirt showed through.' No gates, had been removed from the farm, and the fence which it was alleged they bad removed was only temporary one, consisting of three posts and as maDy stakes carrying, two wires, its purpose being to keep the horses when brought about the house, from getting into the crop in the paddock in which the house stood.

C. Bourn stated that he went with Messrs W. Grant, H. Ford and Guild to inspect the farm on Friday last. He saw the farm whilst in the occupation of Mr Brown, and it was then very bad with sorrel, the fences bad, and the farm thoroughly out of repair. The fences were now in good condition, and the condition of the farm above the average of farms in South Canteibury. He could not say whether the farm was in a better condition than Mr Hayhurst's opposite, but he saw one paddock in the latter that reminded him of the state of the defendants' farm in Brown's time from the sorrel in it. The gates and buildings were • such as might be expected on a farm of that class,' The banks of the gorse fences were very old and dry, consequently it would be very difficult to get gorse plants to grow on them. He examined Hwo Btacks of wheat on the f»rm. Some of the corn had matured, bat a good deal of it was more like hay. Some wheats would mature to some extent after being cut.

The witness, together with E. Pilbrow and T. Trezise, were examined at great as to whether wheat cut green could be reckoned a green crop. Both Messrs Bourn and Trezise held that it was a green crop, but Mr Pilbrow was of opinion that only cropß eaten on the ground were green crops. At this stage, 6 p.m., the Court adjourned till yesterday morning, when Boyd Thomson was examined, and Ptated that the farm and fences were in very good order. Mr Grant said the farm was mucbj r— better than before the defendants took, it. It was as good as most farms in South Canterbury. The fences were cattle proof, and the gates good. Some of the crop was cut green, more of it was ripe, and it was mixed together as it could not be thrashed clean James Guild stated that the farm was in good heart, and well managed. When the crop was cut it was not fit for grain, but it was fit for chaff. In NewZealand and wheat or oats cut green were called green crops. The witness was examined at great length with regard to what was meant by a green crop. He said a crop of wheat eaten off the land would leave more reproductive matter than it would take away. To plant three green crops in succession was bad farming. Orlando Orr Mathews gave evidence which forroborated the statement of Mr Trezise and~others as to the condition of the farm. No improvements except what was absolutely necesssary had been made in the fences since notice of the action had been given. This was the last witness, and counsel on both sides having addressed the jury, His Honor summed up very exhaustively, reading all the evidence through, and commenting on all leading features of it. He said that with regard to the fences, the stables, and thw house, the jury could luve very little difficulty. If they found for the plaintiff on these issues, the damages could not be more than £3O. As regards the green crop question, they might have more difficulty. If a substantial portion of the crop had been allowed to ripen, a breach of the l9ase had been committed, but if they believed it was sown as a green crop and cut gr«en, as such, no breach had taken place. The jury then retired, and after an absence of about a quarter of an hour returnedinto the Court with ageneral verdict for the defendants The. settlement of costs *vas deferred until this morning LEACH V. ALLAN AND STUMBLES

David Leach v. Allan and StumblesClaim £SOO Mr Joynt, instructed by Mr Austin, for the plaintiff, and Mr Harper, instructed by Mr White, for the defendant Mr Joynt, on the case being called, pointed out that Clause 252 of the Rules provided that unless the sum exceed £SOO, a special jury of 12 could not Ary the case. He objected to the tribunal, as illegal His Honor asked if he had received notice of it Mr Joynt said he got notice of a jury, but not of the number of the jury, He wanted the case tried before the judge alone. A u order contrary to rule mast be a nullity His Honor asked Mr Harper to consider seriously whether lie would inaperil the case by going on with it Mr Harper could not agree to let the case be tried by the Court. Under Hie circumstances, as they were led into an •rror, he would ask for an adjournment.. Tiie order was made under the Juries Act, and the question was whether that Act had been npcaM by the rule*. He would

protest against, the case being heard before the Court alone

Mr Joynt said he would protest against it being tried before a jury of 12

After a good deal of time had been spent in debating the point, His Honer asked whether there was any possibility of an agreement being come to Mr Joynt said he would agree to have the case heard by a common jury of 4 Mr Harper would not agree to that, but would agree to a special jury of 4

His Honor said he could not help them in that case, and after a full hour was spent in debating the matter the case was postponed, an application to be made in banco or chambers to settle the time, place and mode of trial, when it is to come on again The Court then adjourned.