DISTRICT COURT.

Tuapeka Times, Volume II, Issue 79, 14 August 1869, Page 3

DISTRICT COURT.

(Before Wilaon Gray, Esq.) Tuesday, August 10th. Mouat t. Brough. — This was an| action brought against Mr. Brough, Solicitor, under the following circum■tancei :— ln March laat Mr. Mouat ; received a letter from the defendant containing the following request — *' Before leaving town I gave my acceptance to Williams of Dunedin for JS3O, and I am not quite certain whether I made it payable here or at the Bank of N.S.W. Lawrence. It is due on the 4th prox. If you will be good enough to lee the Bank agent at Lawrence and make the necessary arrangements, in the event of its. being pre- ' sented there, I shall be glad if you will do so, and when I am in Lawtence, or before if necessary, I will let you have a cheque for the amount. Please attend to this, as I would not on any consideration have the bill dishonoured." The defendant pleaded in ' defence that at the time when the said , bill of exchange became due and pay- ! able the said John Mouat had effects i of the defendant to more than the amount of the said bill. This plea was objected to by the plaintiff as bad, and no answer to the plaintiff's claim. Tho objection was- upheld, and the defendant was allowed by the Judge to substitute a plea of set-off, and tender a statement furnished by the plaintiff to the defendant of moneys received by him as clerk to the defendant. Objection was taken to this course, as exceeding the powers given to the Judge by the Act, which only permitted a plea to be amended, and not allowing a new plea to be substituted. "The objection was overruled, theplainr^siating that he should ask a case to be stated on this point. It was further contended by the plaintiff that the moneys alleged to have been received by him were subject to certain payments made by him as clerk to the I plaintiff, and also to a lien for salary to more than the amount. A letter in j reply to the plaintiff's request for pay- . ment was given in evidence, and it was contended that the defendant had used, or tried to use, his position as employer in order to extort money from the plaintiff. | His Honour strongly recommended both parties to endeavour to come to some settlement of all the claims on both sides, but the plaintiff refused to make any compromise, as the defendant having previously broken faith, could not again be trusted. Judgment for amount claimed, less a portion of the set off.

M'Kinnon v. Constable Daily, Waitahuna.—Claim, £75, damages for ; having unlawfully, whilst executing a i warrant of distress, broken open the J door of his house and turned his child out of doors, and since keeping possession of hiß furniture. Mr. Keen for plaintiff. The circumstances of the case were as follows: — Peter Cook, storekeeper, Waitahuna, had some time ago obtained judgment against plaintiff for £5. In July a warrant was obtained and executed. The constable who was entrusted with the sale posted notices on the house that the same was to be sold. On the day of , sale plaintiff fastened his back door, J and locked the frontdoor, and took the ! key with him, leaving some children ] inside with instructions to open the ! door to no one. The constable demanded to be admitted, and on being refused, he put his hand in through a window in the' back door, on which there was a calico screen, and broke and undid the fastenings and opened the door. Such was the evidence for the plaintiff. Defendant's evidence went to show that although the constable did put his hand in at the window, it was only for an instant of time, and that he could not possibly have broken any fastenings ; that he was standing some yards from the door when it was opened ; that the door was opened by the children, and that the constable had'nothing at all to do with the opening of the door. As respects keeping the furniture, it was proved that the plaintiff could hare it at any time he would ask for it. The Bench remarked there was no question that the .weight of evidence 4JM in favour of defendant; and it appeared that the constable did not in any way exceed his duty in the business. He would therefore find for the defendant, plaintiff to pay costs of Gout and expense* of witnesses.

Wednesday, 11th Atjctost;

Perry and others v. Fowler.-t-rGlaim,' £92, being amount for occupancy of a piece of ground belonging to the trustees of the Congregational Church, Peel-street, Lawrence, since 1863.' Mr. Keen appeared for' plaintiffs; Mr. Mouat for defendant.

i "William Tolcher,. being swora; de-. posed — I have lived In the district 1 since 1863. I. am one of the plaintiffs in this action. I recollect a sale of town sections in 1863. I know Thomas Perry. I was not present at the sale. There was a chapel' on the ground at the time. The price was £4 or £4 10a, It was bought in his name and mine. Fowler waa- not -.here then. About twelve months afterwards I saw: a blacksmith's shop" Tjeing erected. Mr. Herbert told me who was the person erecting the building. TbJB took place in April or May, 1864. I went to the shop and saw the defendant. I asked him if he was aware he was building on land belonging io a church. He said no. I told him that I was one of the purchasers, and that he would be called upon to pay for occupation. He said, "Very well, I am quite willing to pay a reasonable rent." I told him that I would not name any amount then, but for Borne time the amount would be merely nominal. I remember, in November, 1867, giving you (Mr. Keen) instructions to demand the amount of £10 for past rent feom Fowler. That £10 was for over three years' rent — about a shilling a week. I instructed you afterwards to demand 20s. per week from that time forward. The ground is next the Victoria Hotel. He occupied the front of the section. I believe he occupied the whole of the section. My demand is for £92, being £10 for rent, and £82 for 82 weeks at 20s. per week. Mr.~ Fofcts had a livery-stable on part of the ground. .This was an advantage. tovhim._ The; site is worth 20s. per week.

Matthew Hay; * being sworn, deposed — I am the City Valuator. I have been in..l*awrence between five and sir years. I know the section in dispute. Fowler was carrying on business on it then— at least I think so. He has been occupying the ground until lately since November 1867. The portion" occupied by Fowler would be worth 4s. per week. I have put down tlje rent knowing that he was lial)le to be removed at any time, and consider- 4s. per week the value. . For the defence, it was stated that the late Mr. Potts was very anxious to purchase the allotment, and that ho invited the defendant to come and locate himself on it, and leave on no account. He fixed the blocks on which the building was erected. There was a chapel on it, which was removed, and the ground left vacant, and that Fowler was. merely the agent of Potts; therefore, an action for occupation cannot be sustained against the defendant. Eobert Fowler, being sworn, deposed — I am a blacksmith. I know the piece of ground for which this action is brought. Mr. Potts commenced to build the shop. There was another party commenced to build on the same ground. It was a portable house. Mr. Potts pulled it down and carried it to the street. Mr. Potts said he had some houses built on the ground, and he would stick to it. Major Croker said he was quite right. Potts commenced to build, and did build, and he holds it yet. I have nothing to do with it. I remember November, 1807. I got a notice. I had a conversation with Tolcher. I showed the letter to Pott?. I told him I had nothing to do with it. He gave me a bill for £10. I told him I had nothing to do with it. None came to me for rent. I took no notice of the letter I got.

Cross-examined by Mr. Keen — I recollect Tolcher coming to me and telling me I was building on land belonging to the church. This took place a long time ago. I told him I had -nothing to do with it; Mr. Potts wSS'the man. I believe he told me that I would have to pay rent. My reply was that Mr. Potts had buildings on it, and it was his. I erected the building by instructions from Potts. I was a stranger here then. He said he had possession of it, and he would keep it. He was to charge me no rent for it. The building was mine. I bought the timber. Potts put in the foundation posts. The business waa mine. I never was Potts' servant. I was not his agent. I put the building up on my own account, I think in September five years ago. I do not know what would be a fair rental.

Cross-examined by Mr. Mouat — When I got the notice, I could get a piece free to shift the shop on. I don't suppose that I would have to pay much for a site in 1867. John Donovan, being sworn, his evidence went to show that in 1863 he was about taking possession of the same ground, when another man came with the side of a house on his back and laid it down on the ground. Mr. Potts objected, and threw the material on the street. The police were brought to settle matters, but Potts was left in possession, and the shop was erected ; he said that the blacksmith would be a great acquisiton to his .business, and that he" would not allow it to be removed for £3 per weak. A fair sum for ground rent under all circumstances ; a pepper corn rent would be ample, but say 2s. or 2s. 6d. per week. Verdict for £26 165. ; one witness 205. ; plaintiff £2 and costs of Court, 27b. ; hearing and order, 20b,