LAW AND POLICE.

New Zealand Herald, Volume XXX, Issue 9221, 8 June 1893, Page 3

LAW AND POLICE.

SUPREME COURT.CiviI Sittings. • • Wednesday. : : [Before His Honor Mr. Justice Conolljr.] Power of' Distraint. — In the action, Alfred Win. Reid v. James Stewarb Cockerton, the plaintiff sought to recover a sum of £50 damages for illegal distraint. Mr. Mahony appeared for the plaintiff, and Mr. Cooper, instructed by Mr. Johnston, for the defence. Mr. Mahony, in opening the case, read the pleadings. The statement of claim set our that the plaintiff was a newsvendor, residing in Parnell, and the defendant a gentleman residing in Hants, England. Plaintiff w/is a tenant of a cottage * at Parnell, and defendant, through his ; agent, Sir Win. Wastneys, seized the plaintiff's goods by distraint for an amounb for £2 2s due for renb. Plaintiff denied tliab he ever was a tenant of the defendant's, and stated thab he was a tenant of the trustees under the will of Henry Richards, bub he was compelled bo pay the amount of £2 2s and 13s expenses to gob rid of the bailiff, and had been pub to great inconvenience. He therefore claimed the sum of £2 15s, so paid by him, and £50 damages. The sbatemenb of defence denied that the plaintiff was a tenant under the trustees in the will of the late Mr. Richards, deceased, but that he was , the tenant of Mrs. Hannah Richards. He admitted that the bailiff had bean put in to distrain for rent, bub denied that he was put in illegally, stating that he was entitled as the attorney of Hannah Richards to distrain. For a further defence a copy of the will of Richards was attached, giving Mrs. Ricjiards a life-tenancy of the property* also a deed of mortgage by which she mortgaged her interest in the premises to Cockerton, and appointing him her irrevocable attorney until the mortgage was paid. - He served notice qn the plaintiff that he was ' to pay the'ronb to Sir Wm. Wastneys, the defendant's agent, and to no one else. On the 15th November, £2 2s was dua,jfor rent to Cockerton, as attorney for Mrs. Richards. Mr. Mahony pointed oub thab tho real defence was that Cockerton was in the Same position as Hannah Richards, and therefore entitled to distrain. The plaintiff in his evidence said he took the house from Mrs. Richards, to whom he paid the rent until he received a notice from Mr. Cockerton on the 3rd October thab he was to pay the rent to his agenb. On receipt of this notice he went to I Mrs. Richards, and askod her who he was to pay the rent to. She told him to pay the renb to Mr. S. Y. Collins, one of the trustees under her husband's will. He also received a notice from Mr. Collins that he was to pay the rent to him, and to no one else. He had paid the rent regularly to Mr. Collins, and did nob owe a penny renb on the 15th of November, when tho bailiff was pub in. The bailiff/ was in the house two days and ono night, and when ho was about to cart away the furniture, he paid the amount claimed for rent, and 13s expenses, under protest. He had been 33 years in Auckland and never had a bailiff in his house before. In cross-examination the witness said he had received a further notice from Mr. Cockerton, through Mr. Johnston, that unless the rent was paid proceedings would be taken for its recovery by distress or otherwise, but ho did not communicate with Mr. Johnston. It was from Mrs. Richards he took the house, and he paid the renb to her up to tho 3rd of October. In answer to His Honor, ho said ib was when he received the notice from Mr. Collins that ho went to see Mrs. Richards, as he did nob know between the two notices to whom he was to pay the rent, and as he had taken the house from Mrs. Richards, he went to ask her. Mr. S. Y. Collins, Registrar of Electors, and one of the trustees of Henry Richards, deceased, acting under probate of tho will (produced), deposed that for years witness and his co-trustee permitted Mrs. Richards to receive the rent, and never interfered with the estate until the notice was received from Mr. Cockerton, dated on the same date on which he sent notices to the tenants. He then found that the houses had been allowed to go to decay, some to such an extent as to be uninhabitable, and the insurances had been allowed to lapse for several years. The borough rates had been allowed to be in arrears £50, and the Council got a judgment for that amount. Mr. Cooper submitted that this evidence was irrelevant, bub Mr. Mahony contended that it was relevant, as tho trustees had a duty to perform in regard to the property to keep it in repair out of the rents. His Honor admitted the evidence. Witness said when he received tho notice from Cockerton he gave a notice to all tho tenants, including Mr. Reid, to pay their rents to him, and since thab he had been collecting the rents. There were five tenants bub the property was considerably to the bad financially. Deceased's son was his co-trustee, but he did not ever take any active parb in the matter of the trust. He did nob know that his trustee was opposed' to the position witness had taken, and did nob think he was opposed to it. Mr. Cooper called Mrs. Hannah Richards, who stated that she was tho widow of Henry Richards, formerly bailiff of tho R.M. Court. On the 14th November, 1888, the mortgaged her life interest in the property to Mr. Cockerton, to pay a debt that she owed to Mr. Cohen. The consideration was £90. The interest was now two years in arrears. She paid for threo years. She knew Cockorton'e agents gave notice to hor tenants in October laab to pay tho rent to them. Mr. Reid was one of the tenants, but Mr. Reid did not visit her about that notice, it was Mrs. Reid who came bo her, and she told Mrs. Roid that she could take no more rent from her. She did not tell her to whom the rent was to be paid, and she had never told Mr. Roid to pay the rent to Mr. Collins. She had never spoken to Mr. Reid on the subject. In cross-examination witness said she bad not paid the interest for two years, because she had not the means, and some of the cottages were unoccupied, and for the samereasonshohad not paid the rates and insurance. She had too many children to support, and the interest which she did pay was paid nob oub of rents, but out of her children's earnings. His Honor drew the witness' attention to Mr. Reid's evidence, stating that she had told him to pay the rent to Collins, and she said ib was nofc true. Sho did nob speak to Mr. Reid then. She was informed by Mrs. Reid thab Mr. Reid had received a notice from Mr. Collins as well as from Mr. Cockerton. Mrs. Reid did ask her who they wore to pay, and she replied that she could not tell her. His Honor considered Mr. Reid ought to be recalled, for there was a direct conflict of testimony. Mr. Mahony pointed out that Mr. Cooper had not cross-examined the witness on the subject. His Honor said if Mr. Roid was not called by counsol, he should do so, for both could nob bo telling tho truth. Witness,. on being recalled, said, he was wrong in saying he had seen Mrs. Richards personally ; ib was his wife who saw her; bub he afterwards saw her at his own house. At the time the bailiffs were in the house Mrs. Richards came across to the house, and both witness and his wife were speaking to her about tho case. They discussed the matter, and she led him to infer that Mr. Collins was the proper person to pay the rent to, as he was tho trustee. His Honor said ho thought it would be an important question if the plaintiff was mislead by the mortgagor, who would bo supposed to know all about it, but now there was no evidence to that effect. Mr. Cooper said thab being so, the defendant was entitled to judgment. Mrs Richards had power to mortgage the property, and therefore tho trustees had no power to interfere, and under the Settled and Act, 188G, she had even power to sell the property, subject to certain restrictions. She created the tenancy, and she had the right to distrain, and had power to appoint an abborney, and Mr. Cockerton had been appointed her irrevocable attorney, and had the power to distrain. He quoted authorities in support of his argument. Mr. Mahony replied, contending that there was no statutory power in Mrs. Richards to create such a tenancy, as that which existed with plaintiff, and that she had nob the power of distraint. He quoted authorities in support of his contention that she had no power to distrain, although she had power to receive the rents as the nominee of the trustees, who were bound to conserve and keep the property in repair. His Honor said he would consider the case, in order to look into the authorities quoted, but he might say that at present he was of opinion thai the defendant was entitled to succeed. , - . John Dawson v. George Sage.—This was an action brought by the plaintiff against George Sage at executor in the will of Agnes Sage (deceased) to recover a sum of £170 15a 6d, being balapqe ot money

advanced on mortgage and interest thereon. Mr. Cotter appeared for the plaintiff, in* structed by Mr. Hammond, ana defendant appeared in person. The sU-iemenb of claim Bet out that by deed of mortgage made between Agnes Sage and George Sage, ' her husband, in consideration of £250 advanced by the plaintiff Agnes Sage conveyed to him certain property in Mount Eden. The interest was payable quarterly. The fee simple vested in Agnes Sage, and she was the. mortgagee. There had been paid £18 12s as interest, and when foreclosure took place the property only realised £100. Plaintiff therefore prayed fair judgment for £17015s 6d, being the balance due on the/mortgage. In his pleas the defendant admitted the mortgage, and alleged thab the inter6?'j being paid quarterly as specified the principal did not become due until,.June, 1894. The interest was to be 8 per cent., but at that time the Slaintiff claimed 9 per cent. Defenant offered the whole amount of the mortgage, bub plaintiff declined to deal with him. A further defence was that in exposing the property for sale the mortgagee was guilty of negligence and secrecy in nob describing the property, so that it should be properly recognised. The property he alleged was worth £400, and he had been offered £350 for it. He did nob sell the property as alleged in the statement of claim, and plaintiff was not entitled to recover. For a further defence it was set out that Agnes Sage had no separate estate, and that defendant having bought in the estate the defendant was precluded from suing for the balance. His Honor said that was nob law. It was decided otherwise. If he was liable at all, the facb of plaintiff buying in the property did nob preclude him from recovering the balance. Mr. Cotter said that the mortgagee was willing to treat this as an action, and have it referred to the Registrar to ascertain what was due.' His Honor said he considered the further defencein regard bo thesale of theproI perty, the alleged secrecy and buying in by | the mortgagee, should be a counter claim. Mr. Cotter said they werequite willing if Air. Sage paid the principal into Court, to leave it to the Registrar to say what further sum he should have to pay, and on payment his client was willing to hand back the property. The sale was conducted by the Registrar of the Supreme Court, and after the sale, on the very day of the sale, this offer was made to Mr; Sage, and he read the letter. Mr. Cotter called the plaintiff, who deposed to the mortgage, and he said thab the interest had nob been paid, and he foreclosed. Ho gave the dates on which interest was paid. The defendant gave evidence on his own behalf as to the payments made, and as to his endeavours to obtain a satisfactory interview with Mr. Dawson. He also gave evidence as to payments of interest. In cross-examination, the defendanb said ho had previously tried to see Mr. Dawson, to come to an arrangement with regard to the interosb, but Mr. Dawson, although in the office, would never see him, and only sent Mr. Hammond to him. Ha was always willing to pay the 8 per cent., audi had offered to pay the principal and interest at that rate, bub plaintiff during his illness sold up tho property. The only difficulty was the difference between 9 per cent, and 8 per cent., and Mr. Hammond's costs. He never made a definite offer of any particular sum. His Honor called the attention of the defendanb to the offer that if he paid £250 principal into Court, and agreed to pay such other costs as the Registrar may allow, the property would bo handed over to him. Defendant asked to fix the costs. His Honor declined to fix the costs, and gave judgment for the amounb of tho claim, with costs on the lowest scale, execution to be stayed for a month. The Courb was then adjourned till 10 o'clock next morning.