SUPREME COURT.

New Zealand Times, Volume XXIX, Issue 4156, 16 July 1874, Page 3

SUPREME COURT.

CIVIL SITTINGS. Wednesday, July 15. (Before His Honor Mr. Justice Johnston.) LYON V. BIIUOHAN. Mr. Brandon for plaintiff, and Mr. Travers for defendant. By arrangement the case was tried without a jury. ' In this action the plaintiff appeared in tho capacity of trustee, under will in the estate of John Eoy, late of Wellington, and sued the defendant, who was a tenant of certain property of the estate, for the balance of money duo as rent. The case was a somewhat complicated and curious one, involving some nice law points, which were discussed at great length by the learned counsel and His Honor. The plaintiffs case was briefly as follows In February, 1870, the defendant gave a promissory note, by which he undertook to pay the plaintiff, on demand, the sum of £l7O sterling, or such part thereof as should not be realised by the sale of a distress levied by the latter on the station occupied by the former at Kuataniwha. This promissory note was supported by an agreement virtually to the same effect, but more elaborated. The distraint mentioned was made ; the sale effected, and tho gross proceeds shown to be £2OO 15s. 7d., leaving £3O 15s. 7d. surplus on the amount due for rent. A heavy account, however, was rendered for expenses, which actually left, according to the plaintiff’s case, an amount of £63 10s. 3d. still due ; and which was the 'cause of action. The case for the defendant, as argued by Mr. Travers, may be condensed into the following particulars :—The charges for expenses were far in excess of the amounts allowed by the Statute, -thereby bringing tho defendant still in debt, notwithstanding the surplus which resulted from the distraint sale; whereas a balance was actually due to the defendant after deducting the proper Statutory charges. The agreement put in by the plaintiff had not been entered in the pleas, and was consequently clearly inadmissible as evidence. The rent due was £170; the gross proceeds of the sale, £2OO 15s. 7d ; and the charges allowed by the Statute as follows : —Auctioneer’s commission on the sale at 5 percent., £lO os. 9c1.; levy, £1 ; man in possession, thirty-one days at 4s. per day, £G 45.; making a total of £l7 4s. 9d., which, deducted

from the gross ])roeeeds, left £lB3 10s. 10d., from which was to he taken the amount of rent due, £l7O, thus leaving a balance of £l3 10s. lOd. in favor of defendant. In reply, Mr. Brandon contended that plaintiff was entitled to the charges made by virtue of the agreement, which set aside the Statute by allowing any charges necessary for the disposal of the property named, by a sale, to the best advantage. His Honor, after a short adjournment, went through the arithmetical particulars of the case, during which several deductions were made, and after a lengthy review of the whole proceedings gave a general verdict by consent for plaintiff for £44 13s, 3d.; with leave reserved for counsel for defence to move that the verdict be set aside, and one entered for defendant for £l3 10s. lOd. The Court then adjourned, sine die.