SUPREME COURT.

Press, Volume XLVI, Issue 7258, 18 January 1889, Page 3

SUPREME COURT.

SITTINGS AT NISI PBIUS.

Thttrsday, January 17. {Before his Honor Mr Justice Ward.l The sittings were resumed at 10.30 a.m. MACKAY V ORAM. The hearing of this case was continued' The evidence for the defence was gone on with, the witnesses examined being Messrs M. Hart and T. PapprilL The commission to examine Mr A. D. Stone in Auckland not having been received, the further progress of the case was adjourned until the arrival of the commission. MERCANTILE FINANCE COMPANY V MARKg. In this case the Mercantile Finance Company were plaintiffs and Hyman Marks defendant. The plaintiff company held a bill of sale over the effects of one H. S. Austin, and put in a man in possession. At the time Marks held an agreement to purchase the house and land in which Austin resided, with a clause enabling him to enter upon the property and distrain for interest on purchase money due and payable. Austin owed Marks £103 odd for interest, &c, and he distrained. The plaintiff Company also distrained, and disputed the right of Marks to distrain, and it was agreed to state a case for his Honor's decision, the plaintiff Company paying the amount of Marks' claim into the- hands of Messrs Holmes and Loughrey, to abide the result of this action.

Mr Russell appeared for the plaintiffs, and Mr Holmes for the defendant.

All the facts were admitted, and all that was in dispute was whether Marks had power to distrain or not. Mr Russell now submitted that in order to enable Marks to distrain on the goods there should be an actual tenancy created between Marks and Austin, or that there must be privity between the person whose goods were seized and Marks. His Honor would see that Marks simply held the property in trust for Austin, as the latter held an agreement to purchase, with a clause giving Marks power to enter and take possession of the goods. He submitted that there was no tenancy created, and no demise interest which would create the relation of landlord and tenant. He further submitted that the Company, not being privy to the matter as between Marks and Austin, were not bound by it. He desired to quote the case of Pulbrook v Ashby, 56 L.J., 377. In this case there was an agreement for the letting of a public house whereby the tenant agreed inter alia not to take or sell any malt liquors or mineral waters other than such as should be purchased of the landlord. It contained a proviso that if during the tenancy any sum or sums of money should be due from the tenant to the landlord in respect of any malt liquors or mineral waters supplied by him to them, and such sum or sums should remain unpaid for the space of twenty-four hours after a demand in , writing for payment thereof had been left upon the premises, it should be lawful for the landlords to enter and distrain upon the premises in respect of the amount due. It was held by Denman J. that the agreement required registration as a bill ol sale. Mr Holmes contra submitted that the power to distrain granted to Mark? was similar to a rent charge and that Austin had power to grant such a rent charge. Austin was in possession under an agreement to purchase and Marks had power to enter upon the premises and distrain for arrears of interest on the purchase money, which meant that he had all the powers of a landlord. Having these powers Marks could exercise them, though there was a bill of sale over the goods. [The learned counsel cited several cases in support of his contention.] He pointed out that in sec 6 of the Bills of Sale Act the Legislature specially dealt with the point of license to distrain. His Honor called Mr Holmes' sttention to the case cited by Mr Russell. He confessed that had it not been for that case he should have held with Mr Holmes. Mr Holmes said he had not come across the case before and as the case was new to him he would ask his Honor to reserve judgment until he had time to look into the matter. After argument, Hie Honor said he had no alternative but to give judgment for the plaintiff for £110 "judgment accordingly for JBIIO and costs.