RESIDENT MAGISTRATE COURT.

Westport Times, Volume VII, Issue 1086, 4 July 1873, Page 2

RESIDENT MAGISTRATE COURT.

(Before Joseph Giles, Esq., E.M.) Monday, Jitlt 1. civil cases. myers and another t. Rowlands and another. The Magistrate gave judgment in the above case as follows: In this case, Myers and Solomon and Rowlands and Mindermann defendants, claim is made for the sum of £23 2s 2d, which is made up of the following items:—£lo for rent which the plaintiffs, as lessees of certain premises in "Westport, have been compelled, by the judgment of the Resident Magistrate's Court at Nelson, to pay to Samuel Anson Joseph, and £3 10 costs received in such judgment, and paid by the plaintiffs. There is also the further sum of £9 12s 2d, being profesional costs, incurred by the plaintiffs as they allege by reason of the non-payment of the rent by the defendants. These sums the plaintiffs claim under a covenant given them by the defendants in a deed dated the 20th July, 1868, by which the plaintiffs assigned their term to the defendants. By this deed the

defendant's covenant to pay the rent, and to keep the plaintiffs indemnified " from and agaiDst all actions, suits, and other proceedings which shall be commenced or prosecuted against them, and all costs, charges, damages, and expenses which they shall respectively incur, or suffer by reason of the non-payment of the said rent." The rent now in question became due on the 31st day of December 1872. It was not paid either by the defendants or by the parties to whom they had in their turn assigned; and in March last an action was commenced in the Besident's Court at Nelson by the lessor against the present plaintiffs. In that action the defence set up was that the land had been lost by the encroachment of the sea, and that about the month of July. 1872, Messrs Whyte and Pirie, the assignees of their term, had to leave the premises and remove the buildings. The action so brought resulted in a judgment for the plaintiffs, the defendants being held liable nder their covenant to pry rent. They now seek to indemnify thmselves by coming to their assignees, the present defendants, and claimiug re-imbursement of the sums paid nnder the covenant in the deed of assignment. The defence in the present case, independently of some technical points, which I have already set aside, is substantially the same as that raised in the Eesident Magistrate's Court at Nelson. It is said that the rent is not payable, the term having been brought to an end, and the tenant evicted by the encroachment of the sea. It is further alleged that even if the rent were legally payable, the costs incurred by the plaintiffs are not recoverable, because in that case they ought to have paid it without resistance. Now with respect to the rent, it appears to me that the general question which has been argued as to the liability of a tenant to pay rent on his covenant under the peculiar circumstances of eviction, by the encroachment of the sea, is not properly before me for decision in the present case. This is not an action by a landlord against a tenant for rent under the terms of the lease, but an action by a party who has incurred certain damages and expences, against another who has agreed by covenant to indemnify him against them. The plaintiffs have been adjudged by a Court of Justice to pay the rent, and they seek indemnity from the defendants on their covenant. In this case I am of opinion that the defendants cannot ask me to say that the plaintiffs were wrongly compelled to pay, because, I believe I have nothing to do with the merits of the case as between the landlord and his tenant as they may be affected by the sea encroachment. And with regard to the costs incurred by the plaintiff's, I think they stand ®n the same footing as the rent itself, and that if the covenant makes the defendants liable to one, it makes them liable to the other also. It cannot be said that the defendants had no notice of the action, for the proceedings were the direct consequence of their nonpayment of the rent, and it is moreover proved that they knew of the action, and were applied to for papers to assist the defence. I think the plaintiffs were right in presuming from the non-payment of rent by the defendants, that the latter intended to contest the question, and I further think it would be a very inequitable conclusion to come to, that the lessees should be held liable, and their assignees not liable, and I am of opinion that the plaintiffs are entitled to judgment upon the defendant's covenant to indemnify them against all expenses incurred by them by reason of the non-payment of rent.

Wardrop and Brown v. Gill, an insolvent. Interpleader summons. Mr Fisher for plaintiffs—Mr Shapter for defendant. In this suit a horse and pack saddle had been seized in execution, and was now claimed as the property of James Findlay and Alexander McGilvary. George Carruthers, bailiff of the R. M. Court gave evidence as to having seized the property on the 24th June last. Findlay afterwards claimed the horse and bridle, and McGilvary the saddle. "When the property was seized it was in the possession of Gill. By Mr Shapter: Wardrop had never told witness that anyone else claimed the horse. Witness had heard Gill give evidence in the Bankruptcy Court that some horse he was using was not his own, but witness did not know that the horse seized was the one referred to. E. N. Gill said: The horse belonged to James or Alexander Findlay, who had purchased it for £ls from Frank Cox, and had as an old friend lent it to witness to enable him to carry out a packing contract for the mining party in which Findlay worked. By Mr Fisher : Findlay gave Cox an 1.0. U. for the horse and bad since taken it up. There was a tacit understanding that witness should become possessor of the horse whenever he could pay Findlay the purchase money. Had about Christmas last offered Findlay £5 on account, but he refused it, saying he would have all the price or none. Witness did not recollect stating in the bankruptcy Court that a party had bought the horse for him. Had iiot told Franks or any one else at Christmas that he could not pay money owing to them by reason of having just then bought a horse. Had not owned a horse for five years past. Had paid Mr John Hughes, as agent for a third party, £5 towards the

purchase of a horse, but the bargaiii was not completed, and witness did not know whether the £5 was still kept as part pa; tt-mt, or Whether it was considered as rent for the use of the horse. Had sold the saddle and also a weather board cottage for £7 10s to McGilvary in September, but had since Used the saddle by McGilvary's permission. James Findlay corroborated Gill's statement as to purchase of the horse from Cox and the subsequent use of it by Gill. Witness had offered to sell the horse to Brown, one of the judgment creditors, in April last, Brown having asked hini to take it from Gill and give him, Brown, the packing. Had never charged Gill anything for the use of the horse but merely stipulated that he should not lend or ill use it.

Edward Peters, one of party oil Find.ay's claim, had paid for the horse with money given him by Findlay. and received in return from CoxtheT.O.C produced in Court. Thomas Wardrop : Had known the horse for 9 years past. Gill had told him that the horse was his but that he dared no own it as he owed people money. Had received no notice of change of ownership in the horse until after Gill's bankruptcy. In the District Court had heard Gill say that the horse was purchased for him by one of the party in the claim who had stood security for him "to the seller. Cross-examined by Mr Shapter • Witness could not give the exact words; but merely the import of Gill's statement on this particular point. Joseph Brown corroborated evidence of Wardrop as to Gill's statement that the horse was his but he was afraid to own it. He, witness; had never asked Findlay to sell the horse; nor had Findlay ever told him that he bad paid £ls for the horse on Gill's account and had not been able to get«« the money from Gill. Joachim Franks: Had asked Gill for money at Christmas, and Gill; as an excuse for not paying; had said k be had then bought a horse. Gill had before that been working a chestnut horse formerly the property of witness; and the horse now in dispute was; as witness thoughti the one Gill had purchased at Christmas. John Potter : Had formerly a half share in the horse with Cox; Gill had come to him to purchase it: After that the horse was sold by Cox who had received in payment the 1.0.U; given by Findlay. Alex McGilvray corroborated Gill's evidence as to sale and purchase of saddle, and the subsequent use of it by Gill. The Court, after hearing argument of counsel, made an order that the' bailiff should Abandon seizure. Costs ail owed defendant: _