THE NODINE STRUGGLE

Dominion, Volume 4, Issue 972, 12 November 1910, Page 3

THE NODINE STRUGGLE

ANOTHER STAGE. A CLAIM FOR £676 FOR RENT. CASE COMING ON. Yesterday morning, in Chambers, before the Chief Justico (Sir Robert Stout) an application was made concerning a fresh action to be commenced by James A. Hannah against Charles Nodine. A claim is made for £676 17s. 4d., ,as rent, alleged to be duo from January 1 to November 5, 1910, for premises in Lambton Quay, leased by defendant Nodine.

On Thursday Mr. Nodine applied for further time to file a statement of defence, or, as an alternative, to have the trial of the action deferred till he is liberated from prison. Mr. A. Dunn (counsel for Mr. Nodine), in an affidavit made in Mr. Nodine's behalf, stated, inter alia, as follows:—

"(1) That tho defendant has been for about a month in custody, under an order committing him to prison for three months by reason of his refusal to execute a certain leaso in pursuance of the order of the Court.

"(2) That I am informed by defendant, and verily believe, that he is anxious to defend this action on certain legal grounds, and, further, he proposes to set up in answer to the action a counter-claim-for damages for misrepresentation and for breach of contract, and that he is desirous of having both action and counter-claim tried by a jury.

"(3) That I am instructed by the defendant that he will be prejudiced in his defence of the action and in presenting his_ counter-claim unless further steps in tho action aro postponed until he regains his liberty.' ''(4) That I am instructed by the defendant to apply for further time in which to file his pleadings, and also to WW for an order that the trial of the action be postponed." Mr- Hannah's counsel (Mr- A. W. (it . mat^e tho following reply:— It is true that defendant is in custody, but it is open for him at - any time to regain his liberty upon comply1Dg { with tile order of the Court. m , . Paragraph 2of defendant's affidavit, I say from a knowledge of the whole of the proceedings that defendant s alleged action for counterclaim is merely advanced for the purposes of delay, and is not bona fide. , fy* P ara S r aph 3of the affidavit, the defendant is in possession of premises belonging to the plaintiff, and lent amounting to £15 7s. Bd. per week is accruing and due under the lease, but no rent has been paid since tho commencement of the tenancy on January 1, 1910. The said rent amounted, on 5 last, to the sum of £676 17s. 4d.

• Further, as to Paragraph 3, I say that the plaintiff' has never been applied to for any reasonable extension of time for filing the defence, and 110 objection would have been made to an additional week's extension, but • that if tho action is not heard at the present sittings, injustice will be done to the plaintiff. "The plaintiff is quite willing to. agree to the case being postponed for any reasonable time, if the defendant finds security for the amount due and to accrue until the case can be heard." When tho matter was before the Court yesterday morning, Mr. Dunn dealt with the position as given in his affidavit.

His Honour remarked that Mr. Nodine was in prison voluntarily, and could obtain his liberty at any time by complying with the order of the Court. •

Mr. Dunn replied that the plaintiff had issued a new writ, and that these were quite new proceedings. His Honour: I am not going to discuss that. Tho questions which arise in this new writ can be tried at tho proper time. The defendant gains nothing by remaining in prison, as, I understand, the Act of George IV is still in force, and the registrar can, after a certain period of imprisonment has been -undergone, execute the lease on behalf of tlie defendant. It is no. Use your asking for an adjournment of tho trial, but if you ask for a reasonable extension of time to plead there can be no objection to that." Mr. Dunn contended that on account of his being imprisoned; the defendant would be prejudiced and hampered in the preparation of his defence. "If he choso to set aside the law of the country," replied his Honour, "he did it at his own risk." Tho time for filing the statement of ■defence was extended to Wednesday, November 16. The application for postponement of tho trial may be made at the civil sittings, which commence on November 21. Plaintiff was allowed one guinea costs.