SUPREME COURT

New Zealand Times, Volume XXXIII, Issue 7915, 26 September 1911, Page 2

SUPREME COURT

GOESE OF ANCIENT GROWTH. WHO SHALL ERADICATE IT? S 3 Broach of covenant in two respects and failure io pay rent were the causes of . an action heard by tho Chief Justice, Sir Robert Stout, yesterday morning. , Plaintiff was Charles Hayward Izard, ’ barrister, and Francis William Scott, of Tawa Flat, farmer, was defendant. George W. Dickinson and William Edward Dickinson were joined as a third party in the action, and the Hurowlienua Meat Co. as a fourth party. , In opening the case for the plaintiff ! Mr Bunny said that by deed dated April 1 Stli, 1905, the defendant Scott leased 100 - acres of laud (section 23 in the Porirua district) for a period of ten years at a rental of AGO per annum. Under the , deed of lease defendant covenanted to ) repair and keep in good and substantial ’ repair all buildings, fixtures and fences , on the ’property and to cut down and eradicate all gorse, briar, tauhina and ■ other noxious growths. Defendant com mitted a breach of this covenant, allowing the fences to become dilapidated and ■ the gorse to grow and spread. ( Ho failed to comply with a notice calling upon him 1 to repair the fences and eradicate the 1 gorse. Damages amounting to Altitl were ■ claimed for these breaches of covenant, ' in addition to A3O for unpaid rent for •the half-year ending July Ist, 1911. Scott 1 had assigned his lease to Dickinson Bros., and a subsequent assignment to tho Horowhenua Meat Co. had taken place. These parties were joined as third and ’ fourth parties to the action. The statement of defence put in by Mr Jellicoe, counsel for the third parry (Dickinson Bros.), set out that defendant could not at any time eradicate tho gorso, because there were ’ existing on tho laud latent roots of gorse of “a considerable and ancient growth and strength, which it was and is impossible by any known system or process of agriculture to eradicate or wholly destroy.” Further, the original fences were old and unsubstantial; but defendant had kept them in repair, having due regard to that original state. Mr Bunny led evidence by Keith Izard, agent and attorney for his father Clias. Hayward Izard. This witness produced correspondence dating from March 30th, 1911, onwards, between himself and Scott, and stated that about that time ho inspected the property and found it in a very bad state; the land covered with gorso and tho fences out of repair. Cross-examined by Mr Williams, the witness admitted that he knew nothing personally of the two assignments of Scott’s lease.. When Scott first occupied tho laud tho fences were in a much better state of repair. There was gorso on tho land when defendant went into occupation, but it was nothing like so bad as at present. He could not from observation or inspection describe the state of the land at the time of the assignment. A considerably less rental would have ■to bo taken for the laud in its present state. Tho-. Charles Coruford, who had inspected tho property, reported the gorso on tho land to be very bad. Eight and a half acres would cost £5 per acre to clear, 35 acres A 3 per acre, 17 acres 10s per acre, ami 40 acres 5s per acre. James Walter Nairn, J. W. Jack,' and F. T. Moore also gave evidence, closing plaintiff’s case. The defence was a general denial of the allegations of plaintiff. Defendant's counsel further argued that, hy signing the consent to" the assignment of the lease, the lessor had absolved defendant Scott from liability for breach of covenant. After hearing argument and evidence on the point his Honor intimated that he would reserve his decision. IN .CHAMBERS. LAND PURCHASE AND A WITNESS IN PALESTINE. A summons taken out by Romanos Karooz (Mr Jellicoe) was heard by Mr : Justice Edwards. By tho summons plaintiff sought to procure the removal 1 of a caveat lodged 'by his wife, Mary ’ Karooz (Mr Rix), prohibiting his dealing with a section of land, situate at Crosby 1 terrace, Wellington. 1 Plaintiff alleged that though the title ; was taken out in his wife’s name tho property was purchased with his money. \ Subsequent to the purchase Mrs Karooz transferred to her husband and then lodged a caveat by which she alleged j that the purchase was a part of her t separate estate. i In a filed affidavit Mrs Karooz con- 1 troverted her husband’s statements. c

Plaintiff stated his willingness to have the dispute settled by an ordinary action, and tho summons was adjourned by his Honor to enable the parties to proceed in this manner. A request by Mr Jcllicoo for summary hearing in chambers was refused, his Honor stating that lie would hear the case only in open court. Mr Dix explained that the action could uot bo proceeded with immediately, as the evidence of ja witness from Palestine would have to bo taken. ADJUDGED BANKRUPT. Acting on a creditor’s petition Mr Justice Edwards adjudged as bankrupt Mrs Ellen Cockayne, of the Trocndero. When application was made previously to his Honor Mrs Cockayne’s counsel, Mr Levvey, objected, on the ground that the petition, being signed by Samuel Tansley,- agent' for the Official Assignee, was not in order. Yesterday his Honor ruled against this obiection. Mr H. E. Evans appeared for the Assignee. A LIBEL ACTION. The libel action Major v. Blundell Bros, was mentioned by Mr H. D. Bell, K.C., counsel for defendants. He asked that the case be dismissed for want of prosecution unless it were set down for argument within seven daysMr Jollicoe. counsel for plaintiff, consented, remarking that it would give Ills client an opportunity to have the case set down for hearing if he wished. An order was made in accordance with Mr Bell’* request, with costs .£2 2s.