SUPREME COURT

New Zealand Mail, Issue 1626, 29 April 1903, Page 73 (Supplement)

SUPREME COURT

THE NEWTOWN HOTEL CASE. Mr Justice Edwards delivered judgment on tlio 21st inst. in an application brought hv Thomas George Maeartby against Patrick Wulliam Corby to rescind an order granting defendant leave to hie a defence to an action brought upon a covenant contained in a mortgage of leasehold whereby the defendant agreed to pay to the plaintiff the sum of £IOOO on the 7th January last. Leave to defend had been granted upon the affidavit of the defendant, which showed that on the 15th of January, 1902, the plaintiff executed to the defendant a lease of the Newtown Hotel for the term of ten years from the Ist of January, 1902, for a premium of £3500, of which £IOOO was paid by the defendant on the execution of the lease and £2500 was secured by the mortgage, on which the plaintiff now sucd.° It was further alleged in the

affidavit that by reason of the decision of the electors, the plaintiff would be unable to obtain a renewal of bis license, or to carry on the business of an hotelkeeper upon the demised premises after the 30th of June next. The defendant claimed that he was entitled to an apportionment of the piomium, including that which he had already paid, and to be relieved of his liability under the mortgage. He further alleged that by the > lease the plaintiff covenanted with him to commence the removal cf the building upon the demised lands before the Ist of April, 1902, and -that within six months from that date would also complete the erection upon the demised lands of a brick hotel building at a cost of not less than £4500 ; that- the plaintiff had failed to perform such covenant, and that the defendant was entitled to damages in respect of the breach of such covenant. His Honor held that the matter was purely one of counter-claim, and quoted authorities to show that where the defendant admits the plaintiff’s claim, but sets up a plausible counter-claim, there is jurisdiction under the rules to grantleave to defend. Lookiiw over these cases, it appeared to- his Honor that the Court would not set aside an order granting leave to defend an action brought under the summary procedure rules, unless it appeared that the proposed defence and counter-claim were clearly frivolous. Without expressing any opinion upon the merits of the proposed defence. and counter-claim, ho held tlie questions raised worn .now, and had arisen under very peculiar legislation. In coming to his decision, his Honor stated ho had been, greatly influenced by this: that it seemed to him that if judgment for plaintiff was entered on this action, the defendant would be estopped from raising . in. any other proceedings the questions upon which he relied, iris Honor said lie was not greatly imnresscd with the points of law upon which the defendant relied, but did not flunk he ought to debar him from obtaining the opinion of the Courts in such a form that if he succeeded he mierht have immediate relief. His opinion, he said, had wavered on the subject, but for reasons sot forth the motion would he dismissed, with costs of motion (£5 ss) to he costs in the cause. Mr Skcrrett was for plaintiff and Mr Morison for defendant. LEGAL RIGHTS OF PRISONERS. In the case of the King v. Joseph Taylor, being a motion to reserve certain questions alleged to have arisen at the trial of the prisoner at Nelson in November, 1902, for the determination of the Court of Appeal, heard at Wellington on February 13th and March 23rd, his Honor delivered judgment, refusing the application on behalf cf the prisoner. Taylor was convicted of fraud, and sentenced to two years’ imprisonment, hut during the progress of tho trial, his Honor (who presided) was asked by counsel for the prisoner to direct the jury that there was no proof that the acts charged in the indictment as fraudulent had been done while tlie prisoner was a servant of the company mentioned m the indictment. His Honor was not at any stage of the trial, or after it, during the sitting of the Court at Nelson, requested to reserve nr. y question for the Court of. Appeal. He bad not heard the application upon. its merits because be bad now no jurisdiction in the specific direction in question. His Honor doubted if he had power to reserve a case after sentence, even during the continuance of the circuit sitting of the Court-. Mr Jellicoe appeared in support of the motion. WITNESSES’ EXPENSES. In the case of Alfred William Eslick V. George T. Witt, an action brought to show whether the registrar of the Supreme Court was justified in allowing Witt’s expenses for attendance at aerial at Wellington, on a basis of residence at Hunterville, when he was acting as a commercial traveller for a firm trading in Wellington, and had been served with the writ in Wellington. His Plonor held that the test as to a witness’s expenses was the loss of time he suffered, and what expense he had been put to by reason of bis necessary attendance at the Court. A. witness would be deemed to be a residentof a placo where he was residing for the time being, and it made no difference if be happened to have any other place of residence where be might reside at other times. Defendant would have bis expenses as a witness residing at Hunterville, and also £1 Is costs.