RESIDENT MAGISTRATE COURT.

Westport Times, Volume IV, Issue 739, 19 November 1870, Page 2

RESIDENT MAGISTRATE COURT.

Fmday, November 18

(Before J. Giles, Esq., R. M.)

Joseph Baulty, charged upon the information of Catharine M'Cartlry, with the use of threatening language, appeared upon a warrant. The prisoner requested au adjournment for a week, for the production of witnesses, which was granted. Bail allowed, himself in £2O and two sureties in £lO each, DAMAGING PROPEttTY. Jane Johnston was charged, upon the information of J. A. M. Turner, with having unlawfully and maliciously injured a building, his property, on the 15th inst. Mr W. Pitt appeared for the informant, and Mr J. Bickerton Fisher for the defendant. J. A. M. Turner deposed that he owned the Belfast Hotel, which had been situate at the corner of Molesworth street and Avery Bow. Thomas Knowles had erected the premises, and witness assisted to build the house. The wall-plates were nailed down to the piles. Knowles had a lease of the property from Johnston, dated Aug. 15, 1869, and the lease produced bore Knowles's signature. Miss Johnston came into possession after Knowles. Mr Fisher objected to the lease being put in, unless it was proved by the attesting witness.

His Worship stated that he would take a note of the objection.

"Witness resumed : He received the lease from Johnston to Knowies when he purchased from Johnston. He knew Benjamin Balmer, who was clerk to Mr Tyler, solicitor. The lease produced bore his signature as attesting witness. After having purchased the property the witness received rent from Miss Johnston, the defendant. The rent was paid quarterly. On Tuesday morning last the witness went down to the property, aud saw the building moved off the section into the street. It was about halfpast seven o'clock. A man named Moore, another named Carr, and others were at work moving the building. The house was being re-erected on an allotment adjoining the schoolhouse, belonging to Mr Eraser. Johnston assigned the property to witness on March 27, 1869. The assignment produced was the one he claimed under.

By Mr Fisher : The rent has been paid quarterly in advance. The receipt produced is for ground rent, and is dated Eeby. 21st, 1870. The receipt dated August 25th, 1809 for £8 is also for rent of ground; and the receipt dated August 13th, IS7O for £4, is on account of rent. Witness had held other tenements on the block and still hold some. He paid rent to William Parata, a Maori. He obtained permission from the natives to move some of the houses. He was not indebted for rent. The sum of £ls would be due to the natives on Pec. 22, 1876'

Mr Fisher thought that there had been sufficient brought forward to induce his Worship to dismiss the information, as it was necessary to prove malice, and he thought that no malice had been shown. The information must be dismissed, in the face of the receipts where the term ground rent was repeatedly used, which would suffice to show that the' defendant aright have believed that it was not unlawful for her to move the building. Mr Pitt stated that the terms of the lease to Knowles, through whom the defendant claimed, expressly provided that all structures should be left on the ground at the expiration of the lease. As he relied upon the lease to rebut the inference deduced from the receipts, and as he admitted the force of counsel's objection' with respect to the attesting wituess being required to give evidence, he would ask for a postponement for a fortnight to produce the witness, who was iu Auckland.

His Worship adjourned the case for 14 days. CIVIL CASE. Hooper and Dodson v. John Harris This was an action to recover the possession of a concert hall, adjoining the National Hotel. Mr Pitt appeared for the plaintiffs, and Mr Button for the defendant. Mr Button requested that all witnesses in the case might be ordered out of Court.

Mr Pitt stated that he should prove that the defendant was a tenant at will, and that the tenancy was determined on Saturday the 12th inst. The defendant refused to give up possession and hence the present action. George Jervis: On August 18th I was present at an interview with Mr DodsoD, Mr Pitt and Mr Harris at the National Hotel, with respect to the Concert Hall. The document produced was written there and signed by Mr Harris. The document was with respect to giving up possession. It was to the effect that Mr Harris was a tenant at will, and that he was to hold the Hall so long as he held the tenancy of the National Hotel. Irecollect going with Mr Pitt to Mr Harris in July last. I saw Mr Harris on that occasion. Our object was to take possession. "We went into the Concert Hall, and there was a lot of flour there. Mr Harris said that it would inconvenience hin to move the flour, and I said that it would make no difference for a week or a fortnight. I asked for the key, and Mr Harris said there was none. I then suggested to send a carpenter down to fix a lock on the door, but Mr Harris saw no ne-i cesßity for such a course* On NO7.

12th I saw Mr Harris in company with Mr Pitt and Mr Sheahan at the National Hotel We went to take possession, but he said that he would not give it up. Mr Pitt asked for possession of the furniture and also of the Concert Hall, but ho refused to give up possession. There was a large crowd in and about tho place. By Mr Button : I'have a bet in this case with a party named Suisted. I did not know, as a matter of certainty that I should be called upon to give evidence. I was present in Mr Pitt's office when he made a memorandum on Nov. 12 of what had transpired. I am the same Jervis who was recently at the Supreme Court in Nelson when you (Mr Button) were there. There may have been something said by Mr Harris before he signed the document. I cannot remember. There was no notice given to quit. Mr Harris was claiming the ownership of the concert hall previously. I cannot Bay what inducement or consideration there was offered to get Mr to sign the document. I heard Mr Dodson propose to let the Hall for a shilling a week. There was no stipulation or agreement that I can remember. Hodson said that he would allow Harris the concert hall, so long as he held the National Hotel. I do not recollect any notice being given to quit. I do not recollect anything being said in the presence of" Mrs Harris.

By Mr Pitt: On August IS, we had a drink at the bar as we went out. I do not recollect any notice being theu given to quit. On the 12th of Nov. Sheahan was with us, and we all went to your office from the National Hotel. Tou then took a note of what had occurred, and read it to us. Mr Button: And after that you did not know that you would be a witness ?

Mr Pitt said that, as the object of the examination had been to impute unreliability to the previous witness, he would, although reluctantly, have to give evidence. William Pitt deposed that in July last he acted as solicitor for Messrs Hooper aud Dodson. About that time, a summons having been issued against Harris to obtain possession of the concert hall, and in consideration of the proceedings being stayed, Harris having undertaken to deliver up possession of the concert hall to Hooper and Dodson, Jervis and himself waited upon Harris for the purpose of obtain. lDg possession. They went through the National Hotel into the concert hall, and Harris consented to their taking possession. There was a lot of flour in the room, which Harris requested might be allowed to remain, and to this Jervis consented. On August 18 he went with Jervis and Dodson to the National Hotel for the purpose of obtaining further possession. They saw Harris, and had a conversation with respect to the concert hall. Dodson said that he did not wish to put Harris out at present, but wished to get a written acknowledgment that Harris was his tenant. Harris consented, and obtained a sheet of paper, and witness wrote a portion of the document. Harris was talking a good deal, saying that he wished to stop until after Christmas. Dodson said that he could not do anything until he had seen his partner. Harris then put the matter thus, that he understood Mr Dodson would not interfere with his occupancy of the concert hali until he gave up the tenancy of the National Hotel. Dodson replied that he would not be hard upon kirn.

Mr Button: Ifc was then after Dodson had said that he would not be hard upon Harris, and after the gene ral tendency of the conversation had been to secure to Harris the Hall so long as he occupied the National Hotel that he signed the document ? Mr Pitt: The term of Harris' occupancy of the National Hotel expired on Nov. 12th, and it was then that he was asked to give up possession. Mr Button said that he must raise a non-suit point that the Court had no jurisdiction, for the following reasons : Firstly that the annual rental of the Concert Hall had not been fixed ; and, secondly, that uuder the agreement produced Harris' occupation of the concert hall was to be concurrent with that of the National Hotel. The former was in fact an appurtenance of the latter, and the annual value of the holding placed it beyond the jurisdiction of that Court. It was shown by the agreement, and also by the evidence of the plaintiffs, that such at least was the intention of the defendant when he signed the document. It stated that he was a tenant at will, but further on it stated that he was to occupy so long as he held the National Hotel, and, if the latter clause were to mean anything at all it, could only convey that the occupation of the Concert Hali was to be concurrent with "the tenancy of the Hotel. Mr Pitt contended that the Concert Hall was a distinct and separate holding, and that under the agreement the plaintiffs were at any moment in a position to claim possession. His Worship said that with respect to the first portion of the non-suit point, he [thought that it might be a very proper question for a jury to decide, as to the annual value that might be fixed upon the Hall. There was evidence upon the point that an offer of a ehilling per week had been made, which was not, however, accepted. With respect to the second portion of the argument rained fttf a non-suit, he considered the agreement taken with the evidence was clear. The agreement expressed in the first place that Harris was a tenant at will,

but it would be impossible for his Worship in exercising the equitable jurisdiction of the Court, to set aside the following portion of the agreement which, taken with the evidence of Jervis, to his mind, Bhowed very distinctly what must have been thu intention of the defendant when he attached his signature. The plaintiffs would be non-suited with costs — £1 16s.