SUPREME COURT.

Press, Volume XLV, Issue 7140, 30 August 1888, Page 6

SUPREME COURT.

!; IN BANCO. Wednesday, August 2£>. . [Before bis Honor Mr Justice Wart.] His Honor sat in banco at 11 a.m. ' BARRETT (APPELLANT) V MCDONALD (RESPONDENT). This was an appeal from a judgment of the .Resident Magistrate, in which the, appellant Was lined for having incited a man to drink in his licensed house contrary to the Licensing Act. Against this decision an appeal was lodged. On the appeal coming on for hearing, Mr Martin, who appeared for the respondent, obtained ,an adjournment on the ground that the barman and the man alleged to have been incited, who were necessary witnesses, •could not be found. Warrants had been issued for their arrest, but they were not j -available. 'The case now came on from last hearing. Mr Holmes for appellant, Mr Martin for .respondent. Mr Martin said that this matter stood over a month ago to enable him to find witnesses. He had not been able to do so. Mr Holmes—Then, I apply formally for the quashing of the conviction. His Honor—l suppose, Mr Holmes, it will go with the consent of the respondent? Mr Martin—Yes, your Honor, I think I may say so, because we are unable to procure the evidence of the witnesses we require. Hid Honor —Who are the witnesses. Mr Martin —The barman, who was the principal offender, and ihe person whom ie was alleged had been incited to drink. Mr Holmes—That is the informant, and the person principally implicated. ' Mr Martin—We have made diligent search for these men, and are unable t<» fiud them. Mr Holmes—l wish your Honor- fco understand most fully that we had nothing to do with the absence of the barman. At the Licensing Committee meeting we were, asked " Why do you keep the barman t" An adjournment was made, and the Committee then expressed their opinion that the barman should not be retained in Mr Barrett's employment, Acting qq that, the barman was discharged. Had it not been for this the barman might have been here now. Mr Inspector Pender was present, and would testify that this was iviifitiiad taken place. 'tlis Honor Can you give ixs> any news, AiTi- Inspector fender Well, -eour ££onor Mrwnnlp ftMPIHOIiP he is gone to Australia. i£is Honor—Bot Jfcia.ve 70a any informs- ; tion as. to why he went ? Mr inspector Fender—He was so much involved in the case, youjc Honor, that I understand be thought ie best to leave. His Honor-Well, as there is no evidence oflered In support of the conviction it will .be quashed. Mr Holmes applied for costs.

After some argument, his Honor, granted £2 2s coats. & ! BAYNES AND ANOTHER V JOHNSTON AND.. ANGTHEB. This case stood over by consent untif next Banco day. HINDLEY AKD OTHERS V DRANBFIELD. In this case*'on the application of Mr Stringer, his JSonor granted an interlocutory decree on an affidavit of service being filed. OFFICIAi ASSIGNEE V DEAL AND MANNING AND CO. In this case,-which had been before t> ie Court on several former occasions, "jjis Honor delivered judgment. The cast? wa s one in which, under a covenant e,t the lease of the Kotheriield Hotel frona "Deal to Dunbar, ie -was arranged that a»'» buildings erected during the tenancy o't Dunbar should be paid for at the end ist the term at a Deal advanced certain nxoniesj fco- Imnbar and the la'.ter was also mdebfed him f or ren t &n fr rabeg , D un . £»T mortgaged the lease r jr the hotel to Manning, and Co., am?, subsequently became bankrupt The /Official Assignee in his estate then appU.ed for ; the value of the buildings erected l>.yDuubar. Manning and Co. also claimed tinder their, mortgage, and Deal claimed to set off the amount diie : for : advances, rent ami rates. A triangular.action was therefore brought, and a special case submitted for his j Honor's decision. His Honor now gave judgment as follow^ :—The facts of this case and the questions to which an answer is required from the Court are fully stated in the special case, and need no recapitulation. The first point to decide in whether the re-entry of-Deal on tlie premises demised to Dunbar, and the consequent forfeiture of %he lease, operated as a tetal avoidance of the said lease, and consequently of the covenant for payment on a valuation of the buildings erected during Dunbar's tenancy "at £W expiration or sooner determination of the for which the premises were demised. No doubt, if the valuation had been provided for solely at the expiration of.the term" a forfeiture of the lease for non-payment of rent would put an end to the tenant's right to valuation

and payment. But it appears to mc that theabove words"or soouerdetermination " must be taken to i-£fer to the de- j termination of the lease in any I of the various ways (other than, effluxion of time) specified in the contrn'jt, between the patties. It was urged t'aat the words in question might refe? to determination by consent, but there would be no need for their insertion tn meet a case which usually takes place on special conditions. I am, therefore, of opinion that the covenant was not rendered void by Deal's re-entry. The Oft&ial Assijznee has not disclaimed the lease, and therefore stands, in respect to the £950 claimed from Deal, in the same position as that which Dunhar would hare occupied had he not become bankrupt. As between the Official Assignee and Deal alone, therefore, there ca,n be no doubt .that Deal would be 'entitled to set off against the £950 claimed from him all that is due to him; from Dun bar for advances,'rent, and rates. With regard to Manning and Co., it is quite clear that if they are entitled to recover Deal is entitled to set-off against the £950 the rent and: rates due; as with respect to the mortgaged leasehold they must take the positicfn of the lessee. But the £500 advanced by. Deal to'Dunbar appears to have been a mere loan, made without the assent of the mortgagee, and not In any way secured on the leasehold.: As. between the mortgagee and the landlord, therefore, this araouut cannot be set-off., The remaining question is whether Messrs Manning and Co. are restricted by the Laiid Transfer Act to the mere exercise of certain rights deSned by that Act,-or whether they are entitled, subject to its provisions, by a mortgagee. Therestrictlvewordsln tha ■ Land Transfer Act are contained in the 94th clause, which enacts that a mortgage under the Act shall have effect a& a security, but shall not operate as a transfer of the estate charged. Doubtless a. mortgagee can only exercise the statutory powers, vested in him in manner prescribed ; by the statute, but with respect to matters therein unspecified and not referred to it appears to mc that a mortgagee is entitled to all that the words of tV , deed would , usually be held' to. coore' . and therefore with regard to matters dehora the legal estate, and, by its passing or not passing, I am Of 'jTjinion that a mortgagee under tb* said Act is entitled to all benefits ati*' ug f rO w or ou t of'the mortgaged eve n 'if accretions to his orlgU^- interest 8a in this case. I liave cor*; e to this conclusion with; considerable " e i uc tance, inasmuch as Deal will In be compelled bo pay twice over jo' th " c huiidings erected by Danbar.

2 U \ ue should have prptccteu himself by .Uβ lease. His present plight i* the result of his own bad bargain, agaiast which no law can profcecb him. ; Judgroent will be in favor of JVlanninj? and Gβ. for the sum of £G63135, being the agreed value of the buildings erected by Dunbar, less the amount of rent and rates ducat the date of re-entry by DeaL Costa according to agreement. Mr Stringer, on behalf of Mr Deal, applied for a stay of execution for fourteen days in order that notice of appeal might be given. ~ His Honor granted the application. The Court then rose. Mbs Lanotet's Rancßß. —The London Correspondent of the Manchester Courier -writes:—"Mrs Langtry, I learn from a private letter, has ended her season, and returnwl to New York from San E'wncisco, but she will co back almost immediately to California, -where she intends spending the summer in farming and hunting. The estate which the "Jersey lily' has recently purchased is called lAngtry Farms,, and not Sandringham. It comprises 4500 acres, in a valley of the beautiful Howell Mountains. Mr Gebhardt has bought tib* adjoining farms, and between, then tbey own the entire valley. On the Langtry farms there are 83® bead of cattle, 500 swine, thirty wodfe aorsee and mules, besides other thoroughbred stock, and bares, granaries, and wine-presses. Mrs Langtry is now the most wealthy actress in the world, and her ambition is to become manageress of a metropolitan theatre. Her life, ebe says, is to be divided between the stage and the ranche.