MAGISTRATE'S COURT

Otago Daily Times, Issue 18624, 4 August 1922, Page 3

MAGISTRATE'S COURT

Thubsdat,. August 3. (Before Mr J. R. Bartholomew, S.M.) Undefended Cases.—Judgment was given for plaintiffs by default in the following cases:—W. Smith v. William Martin, claim £lB 4s 7d for rent, etc., judgment for £l7 16s Id and costs (£2 14s); S. R. Stedman. v. Harry B. Nikel, claim £5 Is, for goods delivered and costs (£1 11s 6d); Butterworth Bros. v. J. D. Baldwin (Gore), claim , £l7 Os 2d for drapery sold and costs (£1 14s); . Briscoe and 00. v. Childs and Nikel, claim 19s 2d for hardware supplied and costs (15s); T. Sourr y.'John Duckmanton (Portobello), claim £4 9s 6d and costs (£1 3s 6d). Hunter v. Galloway.—Mr Bartholomew gav e judgment in the case of Hunter v. Galloway, in which the plaintiff, Mary Hunter, claimed to recover £IOO, money alleged to' have been lent to the defendant John Galloway, who is her father. • Defendant and his wife arrived from Scotland in 1920, and som e weeks later decided to purchase a house at Ravensbourne for £360. Plaintiff’s account of the transaction was that she offered to lend £IOO towards the purchase money of the house. . The defence was that the £IOO was a gift to the mother, and it was also claimed that it was a payment in satisfaction of three insurance premiums, and payment on plaintiff’s luggage and prospective board of plaintiff and her son. The claim. for board, his Worship was afraid, had its birth in the family feud which had since arisen. He was satisfied that when the £IOO was paid over no such matter was in the minds of the parties. On a review of the whole circumstances he thought there could be no question that the £IOO was a loan and not a gift. Defendant’s own admission was a recognition of liability to Mrs Hunter. and confirmed the evidence of Mr and Mrs James Galloway on tuis point. He was much impressed with the evidence of Mrs James Galloway, who was not cross-ex-amined. The evidence of this witness and/ her husband 'and defendant’s admisions supplied ample corroboration of plaintiff’s evidence. Judgment would be for plaintiff for amount claimed and costs (court' costs £2 12s, and solicitor’s fee £6). ' A Claim for Possession. —Thomas Smith, retired butcher, claimed from William P. Elliott, tobacconist and hairdresser,' possession of the shop at 189 George street and rent.—Mr W. G. Hay, instructed by Messrs Aslin and Brown, appeared for the plaintiff, and Mr J. I S. Sinclair. for the defendant. Mr Hay said that notice had been given to defendant to quit the premises, and he declined to. do so. The- plaintiff Smith in evidence said ho held A lease of the shop from the freeholder. Defendant had had a weekly tenancy at £2 15s a week for some years past.. Rent had been paid up to July 1. Plaintiff told 1 defendant he had not been conducting his business properly and that he declined to renew, the lease. To Mr Sinclair: He had nevet offered to give Elliott a lease at any time. Ho had seen Elliott intoxicated, and had given him warning as to his behaviour. He had certainly not consented to lease a shop in Hanover street to the defendant Elliott. He had an offer of a bonus from Mr Hazlett for the right to take over the shop. That was quite common in George street. —Charles Edward Cole, solicitor, said he had been, instructed by Mr Smith to offer to lease the premises to defendant for the balance of the term at £3. Ho had since left tho town, and the matter had been handed over to Mr Aslin.—Edwin Aslin, solicitor, said about the end of March Mr Elliott had asked him if Mr Smith was going to give him tho lease. Later he told Mr Solomon that Mr. Smith was not going to give any lease. So far as he knew there was not at any time a definite arrangement for , a lease.—Mr Sinclair contended there were no merits in plaintiff’s case. An honourable arrangement re lease was oome to, and Mr Smith should have completed it., Apparently the position -was altered in Mr Smith’s mind by the very substantial offer from Mr Hazlett for the right to lease the premises. Mr Sjtnth had admitted ho might have mentioned the sum of .£2OO. There would have been no reason to offer such a bonus if defendant had only a weekly or monthly tenanev as plaintiff contended. He submitted there was a bona fide contest as to title, and that that was all he, had to prove. If that was so the court had no jurisdiction.—The defendant. W F Elliott, in evidence, said he had leased’the shop in question for four and a-holf years, and he had never; had any sort of complaint from plaintiff. This bo~ey about drinking had been raised only since Mr Smith got the offer of the bonus. Ho was offered a lease by Mr Cole, and he accepted .it, but the lease was' not completed, and ho could not get any further satisfaction. Defendant had in conversation confirmed the arrangement made to lease by Mr Cole.-Fredenck Tanner, baker, brother-in-law of the defendant, directly contradicted plaintiffs evidence, and said plaintiff had offered to lease a shon in Hanover street to . witness, who could then lease it to Mr arguing points of law, said that a matter of title must be disclosed by the evidence, and if the evidence did disclose a matter of title then the position was that it must be raised bona fide. He held therei was no evidence in this case to support a claim of title The question of title was not asserted bona fide at all.—ln giving judgment, the magistrate said on the question of jurisdiction there must bo the assertion of facts, which, if true, would raise the question of title before the jurisdiction of the court could be ousted. . Once there was mich a set of facts in existence it was not, for the court to determine the true position. Defendant asserted that he had a lease or that bo was entitled to a lease from March or April, but rent had been paidmul-rtho terms of the old tenancy up till July 5 What occurred in March dearly .amounted to nothing more than an expression of his willingness to enter into a lease. there was no definite arrangement with regard to terms He held that there was no such evidence as would raise the question of title bona fide, and the court * ol T fo , ro , cretion —Mr Sinclair asked that his client bo allowed to retain possession as long as possible.—Mr Hav said plaintiff, was willing to allow him up to a month in which, to, move. —An order was made for possession a warrant for possession to frW 31. for rent and mesne Profits £ll 15s m. court costs £1 16s, and solicitors fee .t-2 12s. _