RESIDENT MAGISTRATE COURT.

Westport Times, Volume VII, Issue 1084, 27 June 1873, Page 2

RESIDENT MAGISTRATE COURT.

(Before Joseph Giles, Esq., E.M.) MTERS AND SOLOMON T. ROWLANDS AND MINDERMANN. The legal argument in this case, as heard on the 17th instant was as follows: _ Mr Eisher, for the defendant, said his Worship would recollect that the deeds which had been put in had been accepted by him save all post exceptions. He had now to urge with reference to the original lessor that it should not be received, inasmuch as it bore no stamp. The lease purported to have been made and executed on the 21st December, 1966, but the tenancy commenced on the Ist Jan., 1567, the day on which the Stamp Act of 1866 came in force, he submitted that the document was on the face of it a palpable attempt to evade the Stamp Act. He had no authorities on the subject, having only just noticed the matter, but he would submit the point for the consideration of the Court. As to the assignment to Eowlands and Mindermann, he submitted that it ought not to be admitted,- on two grounds. Ist, the

attested witness had not stated his residence and occupation. The Conveyancing Ordinance of New Zealand, session 2, No. 10, expressly requiring the names and residences of two attesting witnesses. The Amendment to that Ordinance of ISCO, after reciting the section of the former Ordinance, simply enacts that " every deed shall be attested by at least one witness." He submitted that the requirements of the first Ordinance as to the residence and occupation of the witness had not been done away with. 2ndly, if it then was a good deed within the Conveyance Ordinance for the purpose of passing the interest in land it was only good to that extent, and would not endure as a good deed of covenant for guarantee and indemnity, unless it was executed according to the requirements of the common law, unless it was sealed and delivered. (Addison on contracts 43 and 48). This is an executory contract to indemnify the lessee against a possible call to pay rent growing due in the future, and does not come within the Conveyancing Ordinance (.Rhodes v. Eobinson and "Wilkin p.p. 133 &c. &c. New Zealand Eeports). Another objection was that they were only bound to indemnify the plaintiff's against legal payments of rent. There can have been no legal payment made of this rent. The land is washed away. There is no tenure, the term is finished.the possession and re version forfeteidto title paramount, andthe Admiralty and imperlum. The Crown has taken possession, (Stephens commentaries p. 110. Attorney General v. Chambers, and Hull and Selby Eailway Company). Foreign ships may fight within 3 miles of the shore without any breach of international law. Would the commanders be bound to come ashore and make enquiries before engaging whether the foreshore was that upon which the tide now ebbs and flows, or if it commenced half a mile out to seaward I The public have a common law right to pass and repass in carts and carriages, and ships also may sail and fisherman set their nets upon the foreshore, (Crawford andLeCreu New Zealand Eeports p. 127). Could they be held bound to make enquiries whether the Crown was in possession, or whether they were trespassing upon private property in passing over and using this land which now forms the foreshore ? There is sometimes as much as 16 or 18 feet of water on this ground. Could any one be found to argue that in case a fine vessel worth £50,000 should be stranded on and become firmly embedded in their land that the defendants or their assignee could seize and hold the vessel as a fixture to their freehold ? The Governor may also deal with this land as foreshore under the Public

Act ISsl*. Again there cau be no rent recovered under this lease. Rent is defined by Wharton to be profit issuing out of the land. It must issue out of" the land. Nothing issues or can issue out of this land, but Harbour and light dues, and other such profits accruing to the Government of the country. Then again rent is incident to the reversion. When the reversion is destroyed the rent is extinguished, (Clairs case— Moor's leading cases on real property p. 272). Supposing this lease to have been for 999 years, are the defendants to pay rent, their heirs aud assigns to pay rent, aud their estates to be kept in administration during all that time because the blood sucking landlord insists upon having the rent of the 999 th year, under a covenant which never contemplated such a set of circumstances as the present ? The Act of God has terminated this term and rendered occupation beneficial or otherwise utterly impossible, and the maxim actus Dei nemini facit injuriam applies, (Brown's legal maxims p. 229). These covenants are dependent. The lessor under the applied covenant undertakes to keep the defendant in possession. The lessees or assignee in consideration of possession for a term of 14 years, undertakes to pay an annual rental for each year of possession. It is idle for the plaintiffs to say that the defendants have varied the covenant so that they only covenant against the acts of themselves, and those claiming through them. Since they cannot deny the under lessees or assignees right to payment to the original lessor; and the principal upon which that is declared is clearly laid down in Wheeler v. Eranscombe, 5 Q. B. 273, viz., " that as the landlord of the original lessee expressly or impliedly undertakes to maintain him in possession, he, by implication, authorises him to apply his under rent in paying the original landlord." The case of an assignee is not mentioned, but he, the learned counsel, apprehended that the same principle would apply. The defendants are not liable as having assigned before rent became due. They are not assignees in possession, (Woodridgo v. Steward, Burnett v. Lynch 5 b and c 589), and defendants are only liable while their possession continues. Even supposing defendants are liable in the rent, they are not liable in the costs incurred by the plaintiffs in defending the claim of the original lessor, for if the claim for rent is a good and legal one plaintiffs ought to have paid and not incurred costs in defending. They cannot make us liable for their laches (Rosenberg v. Faulklaud Islco Company, and Beech v. Jones). Lastly the plaintiffs, by charging us with tho costs, have given us an opening to try the whole question. They made no demand upon us aud gave us no notice to pay before proceeding to

defond the action, (Smith v. Crapton 3 B and C.) The Court now adjourned, and upon resuming Mr Shapter rose to reply, when his Worship intimated that ho should not require counsel to address himself at all to the question of the lease requiring a stamp, or that the assignment Was not sufficiently executed. Mr Shapter : The covenant to pay rent is a covenant in gross and not conditional (Addison on contracts, p. 307). The covenant for quiet enjoyment is specially qualified in deed, and limited to acts o*' lessor and persons claiming or acting through or under him. The fact of the laud being washed away cannot be referred to such a person. The assignee, by the assignment deed, gets rid of his liability to the lessor, but not of his express covenant with his assignor (the plaintin's)—(Woodfall 20S and 109 Walker v. Beeves.) The covenant for indemnity specially includes costs consequent on nonpayment of rent, and the costs are charged as such. He would point out that the Courts of law and the Legislature have always recognised a material difference in a parol contract and one made by deed. By 11 Geo. 2 c. 19. s. 14 it is enacted that where the demises are not by deed, it shall and may be lawful to and for the landlord where the agreement is not by deed to recover a reasonable satisfaction for the land tenements or hereditaments held or occupied by the defendant in an action on the case for use and occupation ?of what was so held and enjoyed. This enactment is confined to actions " on the case," i.e. assumpsit for use and occupation. In 1841 it was finally settled that by the common law an action of debt for usaand occupation was maintainable even where there was a demise not under seal at a certain rent (Gibson and Kirk, Q B. 850). The distinction in England between assumpsit foi 1 use and occupapation, and debt for use and occupation, was in effect abolished by the Common Law Procedure Act, 1852, 152, 16, Vict. c. 76. s.s. 3, 41, 91. Before the Statute 11, Geo. 2. then if a demise at a certain rent was proved, the plaintiff was nonsuited ; afterwards unless the demise was by deed it was no longer fatal to the action. What then is the special value of a deed, and what special duty does it create ? The rule is " That if a party, by his own contract creates a duty on a charge upon himself, he is bound to make it good, if he can, notwithstanding any accident by inevitable uecessity, for if he had chosen to guard against any loss of this kind he should have introduced it by way of exception." This rule is stated in similar language in Woodfall's Landlord v. Tenant, 370, and the attention of the Court is particularly directed to the case of Baker v. Holstappel, 4 Taunt: 45, where the premises were destroyed by firo during a tenancy under a written agreement, not by deed, and rendered no longer habitable, the landlord was held to be still entitled to recover rent accruing due after the fire, in an action for use and occupation ; also to the case of Lyon v. Gorton, 5, Bing. N.C. 501 where a tenant from year to year of a second lloor, under a parol agreement, was held liable in the same form of' action. In the latter case, at any rate the tenant must have lost all " actual and beneficial occupation." And the principles laid down in these cases have been recognised in Hari v. Windsor, 12 M. and AV. 68, and Surplice v. Earnsworth, 85, Scott. N. B. 307, and Carter v." Cummins, where a wharf demised was swept away by the Thames, and the lessee still held liable. It was formerly held to be a good defence to an action for use and occupation, thai the defendant had not any beneficial occupation of the premises during the period in respect of which the rent was claimed, but this was in an action for use and occupation, when as we have seen the demise could not have been by deed. But all such decisions have been overruled, (Hart v. Windsor, 12 M. and W. 68, 87. It should be remembered that a contract for payment materially differs from a contract to leave in repair, for the latter may be rendered impossible by the' act of God. The other can only be rendered " difficult." Eor instance, supposing I am a man of large property, and covenant to pay another an annuity, the fact of my losing the whole of my means, would not discharge me from the performance of my covenant, although it might render that performance difficult, but contra if I had made the payment of the annuity depend upon the continuance of my means. "Where the demise is by deed it is necessary to declare specially for rent upon the demise (Gudgeon v. Besset, 6 E. and B. 986) and such count will compel the defendant to plead specially, an eviction or surrender or other determination of the term, by mutual consent or otherwise, before the rent claimed became due. Eviction may be either by act of the landlord or by title paramount. Now what will constitute an eviction by the landlord which will operate as a suspension of rent ? To effect this it is necessary that there should be an actual physical expulsion from any part of the premises; but any act of a permanent character, done by the landlord or his procurement, with the intention of depriving the tenant of the enjoyment of the premises as demised, or any part of them will operate as eviction (Upton v. Towend Upton v. Greenless 17 C. B. 30, 25 L. J. C. P. 44. Has there been any such intention in this case ? Certainly

not—and there has been no surrender. Is it an eviction by title paramount ? or in other words, can the lessee show that the title of the lessee has expired; for in that cUse alone can he dispute his landlords title—Neave v. Moss 1 Bing 3G3. And let us remember that the assignee is in the same position as to disputing his landlord's title as the lessee (Taylor v. Weedham; 2 Taunt. 278). It matters not whether the land is covered by water to the depth of 2 inches or 20 feet if the title still remains in the lessor. The only authorities for the defendants are " remarks ". nlade by Wood-fall and Browne in their respective works, based, apparently upon some remarks made in Bacon's abridgments and iibt upon the decisions of any Court, and such remarks are considerably qualified when the context is taken into consideration, and we find the " rule " I have before stated as to the " duty " created by a contract distinctly laid down. . Mr Williams in his Principles of the Law of Real Property says: " Th' 6 Crown is presumptively entitled to the sea shore up to the high water mark of medium tides —Attorney General v. Chambers 4 DeGex M and G 206. The Queen v. Gee* and Ellia v. Ellis, 1068."—but the presumption in this case is rebutted from the facta as proved and the lease in evidence, and farther on we find " A »udden irruption of the sea gives the C*owh no title to the lands thrown under water " but if the sea, or an arm of the sea by gradual and imperceptible progress, encroach upon the land of a subject, the land thereby covered with water belongs to the Crown. In re Hull and Selby Eailway 5 Mee and "W. 327. But where the Queen can step in jure corona, and dust the subject the gradual and imperceptible progress must be such that it cannot be observed when actually going on. Surely the encroachment in this instance has been by such " sudden irruption" as to be patent to all observers. The title then still vests hi the lessor who has not been - -ioted; there has been no eviction than '? \q lessee by title paramount, and* * irruption of the sea is a misfortune which could have been provided against in the contract. Judgment was reserved: