SUPREME COURT.

Star (Christchurch), Issue 12061, 17 July 1917, Page 6

SUPREME COURT.

JUDGMENTS DELIVERED. At. to-day's sitting of the Supreme Court, in chambers, th 0 judgments of his Honor Mr Justice Denniston in several actions recently heard by the Judge were, read. QUESTION OF EVICTION.

In the matter Martin Moir (Mr Alpers) v. Allele Evan Maepherson (Mr Sargent) the plaintiff sued to recover £IOO 18s 4d rent accrued Mnder an agreement of lease. £24 os rates paid on defendant's account and £lOl 9s Id for breach of covenant, in lease.

The facts, declared his Honor, were hardlv disputed. The parties on May 22, 1910, signed an agreement for a lease, of certain farm lands for seven years, at a yearly rental of £-103 J3s (id, payable i'» advance quarterly. The lessee was to pay all rates, etc., personally reside on the premises, and before the expiry of the term sow a sufiicient quantitv of good permanent English grasses. ' The defendant paid the first three quarters' rent, and then notified that he had lost money and wished to give up the lease. The plaintiff refused to accept the surrender, but agreed to accept £2OO to make the release. Eventually the defendant left the property, and claims that ho was evicted, the plaintiff claiming that ho re-entered on breach of covenants. In either case the plaintiff was entitled to recover the rent due before any entry was made. The defendant admitted his .liability for rates paid.

His Honor, continuing, said that the only other question was the claim for breach of covenants. The acts of the plaintiff amounted to an eviction, and a lessor who evicted his tenant beforean undertaking could bo reasonably complied with could not sue the lessee for damages for non-performance. The defendant could not be held liable under the condition on which he is siyed. Plaintiff wo\dd have judgment for £IOO 18s -Id for the. quarter's rent due on February 17, 1917. and £2l os for rates, with costs. Defendant to have the costs of witnesses called by him in respect of the items on which he had succeeded. INTERPRETIXG A WILL. In the case of John A of the will of John Carroll, deceased, v. John Carroll and Patrick Francis Carroll, defendants, the question of the interpretation of a clause in the will referring to a mortgage over ]>ortion of the testator's landed property was the issue. At the date of the will there was a mortgage existing over two parcels of land; at the date of testator's death such mortgage was not. existing—there was only a new and separate mortgage over one of the properties. His Honor was asked to hold that there was evidence in the will as a whole that the testator intended that the language which accurately described the joint mortgage covered and included the second one. He saw no ground whatever for such a contention. The testator by his will was severing the title, and ownership of two separate parcels of land included in a joint mortgage over both. His Honor hold that the Redcliffe property of 100 acres was not liable to be charged with the payment of any part of the sum secured by the mortgage of £750. The solicitors for the plaintiff were Messrs Hamilton and Fitch, and Messrs Ongley and Cunningham for defendants. LEGACY INCREASED. In the case of Honora Carroll v. John Andrews and John Carroll, plaintiff, a daughter of the testator, asked that she should receive a sum in addition to the provision made for her under her father's will. The testator was a farmer, and left an estate valued at somewhat over £2OOO. He divided his landed property between his two sons, subject in the case- of one ofs'he devises to a life interest to his widow and to the payment of a mortgage of £750 and three legacies each to three daughters of the testator, two of whom were married, the third being the plaintiff. His Honor held that, taking all the circumstances of the case into consideration, a proper order would be to increase the sum bequeathed to the plaintiff by £3OO, to be paid in equal shares out of the interests of the brothers.

Mr Hunter was for the plaintiff, and Mr Hamilton for the defendants. MTDDT.K PARK ROAD. In the matter of the chairman, councillors, etc., of the Waimairi County, tile Mayor, etc., of the city of Christr church. and the Mayor, etc., of the borough of Riccarton v. the chairman, councillors, etc., of the Paparua County, the main question was whether the cost of certain alterations and improvement on part of the Middle Park Road were properly attributable to tho maintenance of tho road, and as such payable proportionately by all the local bodies, parties to the suit. His Honor quoted several decisions, and said that in his opinion " maintenance " could only mean the preservation of tho road the subject of a warrant, as in this instance, in tho same condition it. ivas in at the rlate of the, •warrant. Jt. excluded anything in the naturo of construction or reconstruction, unless the latter became necessary to restore tho original condition. In this instance a part of what was a country road was raised to the status and with the equipment of a city street.. Tt was absurd to call that " maintaining''' the road.

His Honor, continuing, declared that the summons asked for tho direction of tho Court as to three questions: " Whether upon the true construction of 'sections 109 and 120 of the Pjublfts Works Act, 1908', it was competent for the Governor to constitute a commission to inquire and report with a view to determining the proportion of the cost of maintaining, etc., Middle Park Road, in the County of Waimairi, which should be |>rinted and paid by each local authority whose district is benefitted by the existence of the said road." He had indicated his opinion that Section 109 only warranted a, direction to inquire into the cost of constructing and maintaining. >\s, however, the warrant only dealt with the apportionment of the cost of maintaining, the question put was an abstract one, to which he declined to give a formal answer.

The second question wns: "Whether upon the true construction of the warrant of the Governor, dated Juno 24, 1915. made a pursuance of the recommendation of the commission referred to in the first question, the chairman, councillors and inhabitants of the County of Paparua are liable to contribute in the proportion specified in the said warrant to th B cost of the following works on the said Middle Park Road-; that -was to say, asphalting footpaths which theretofore had been shingle, footpaths, concreting water channels which theretofore had been earthen channels, lighting the said roads by electric light." The answer is: iNo.

"To the third question: 'Whether the obligation of the said chairman, councillors and inhabitants of the. Countv of Papßvua. under the said warrant of June 24. 191' i. is confined to the obligation of contributing the proportion of the cost of repairing the said Middle Park Road, or. whether they must contribute to the cost of maintaining, repairing, improving and reconstructing the said road from time to time so far as may ho necessary to maintain the said road in a state of efficiency, having regard to any alterations in standard effected by lapse of time and change in character of the

obligation under the warrant is to ' maintain.' The Court was not asked to express any opinion as to the statfement of the chairman of the Waimairi County Council that the Paparua County Council contended that it was not bound to anything beyond road repairs without regard to footpaths or ohannelings. The defendants would hare the costs of the summons as in an action on the lowest scale. AWARD UPHELD. In the matter of George Fisher and Alice Fisher (Mr Beswick) v. 11. Matson and Co. (Mr Alpers), which was a motion by the plaintiffs to adopt, and one by the defendants to set aside, an arbitrators' award that the defendants were not entitled to certain sums of money, being interest on mon-ey advanced. The arbitrator held that-there was no contract icgarding interest on the money advanced, and no amount as interest- could be awarded. His Honor, alter reviewing the facts said that the debt of G. Fisher to the. defendants, in the absence of any reference to the subject, should not carry interest, and it was one for the arbitrators to decide. The refusal of interest by the arbitrator could not lie termed "misconduct'' even in the most technical some, and it was clear that lie could not l>c called upon to state si ease after making the award. The reference to the arbitrator was in a suit for accounts, and he was directed to find "an accurate and first account, in all respects between (he parties." That did not give him authority to decide the matters on what might be termed equitable groundsHis Honor concluded that there was no evidence of " misconduct " on the face of the award lo justify him referring if back to the arbitrator. This decision was come to with regret, as were it open to him (his Hnnor) to consider the evidence, he would have held that Hie interest on the purchase moo?v should have be'.:n allowed. The order asked for by the would he refused' with costs, and the order asked for by the plaintiffs would be allowed with costs.