WANGANUI SITTINGS

Wanganui Chronicle, Volume L, Issue 12145, 29 August 1908, Page 5

WANGANUI SITTINGS

FRIDAY, AUGUST 28, 1908

Bl°an. WiS 3lol^ur Chap-

UENDELL t. BLAKE

PLAINTIFF NON-SUITED

The Court resumed at 10.30 a m yesterday, when His Honour gare theiof nmsaj <>t the abore action: The first &^^^en— ff •fi • il rhat tne lessee 'will insure' hJl^ mortgaged the reversion and had to imnr. f or tho b^efit of the

into a lesso?'* ?r • €mpt *° turn'it ance shall in SS °n+ Ti S"°h iMslp" age by fir 6 \ a f , Or dam" This i 8 ifaStlJ? a i?" -°r Protection of t^ l^r r'f" f°r of convenience 1 f'' rule ho showS a tack «J enantj beca"se £200 but Th ODIyJ?c msurable for bettaX. \S2SLB? r * t g° SS* 4 answers itself Tkll g c ? Uestjon fails lhls course of action

S2 2*^ °4s ,rz al t s instrument, or agreement shall be deemed to be due and payable undo? & e? meiJ.t and shall or may [i S talA tb6 «**■=•• P- Blake from e*<?ry. such payment » accordingly." o^milk fGrS T+ to- theP Pa+a *me»t for BUp gpfi-ee £,+!?■ 11 >xt hare no effect the^aS g °f th& Plaintiff u^er ' ♦ ■^^''i?\ to the instrument-of. eecun■Jy, which Iwsars. the. same date, it ron?aina a clause not uncommon in such W^V*^ by *W^ of amplffict twn and extension of the covenants of ffe Bage£ in J he ™» schedule to Si t A^ ransfer A? fc: 1889, there M^ll + be added a special clause. The Statutory covenant is not to do any act whereby the chattels may become prejudicially affected,-and; e^es^so ;:f Wyall rents froiri time talmeS d"e^n respect of ■ lands on? Vhich the chattels are. situated. "The special diall.be,lawful for but not obligatory upon .the grantee. to 5 pay the same and all moneys expended and costs and exlen^mcurred^by^the grantee in. so fping-shitll forthwith be repaid by the grantor to the grantee, and in the ;'m^tnne_BhaU;be s* charge upon the saxd and chattels included in |JH3 security." It is doubtful whether the oorenant has any relation -to the case of a mortgagee who ie also lessor, as it is presumably intended to protect him from the rick of distraint by a leesor^ If it hao any such; relation ib must hare the rery opposite effect to that sagiest^d by the pleadings ; It is, howej^r, argued by i£e plaiiititt s counsel that there was an express agreement that, the rent should be capitalised, and treated as part; of the principal| sum owing, but not'yet payablo «nde r the security...ln thelirst fife* 1/ 0" n«t think I ought to have admitted evidence of such an agree- ™"+- i.l*!^ in the statement of claim, though another parole agreement to reduoe the rent for the +^9^r,° £ -th 6, from,£2s7, 10s to £232 15s is alleged. Further, it is not only not proved, but- it is negatived, -by the evidence arid documents. ±he defendant seems to have Wished to capitalise it and sought to get a document signed by the plaintiff acknowledging that it was secured. To this the plaintiff refus-d to assent and no agreement-arose. If the parties had agreed m this, way, I do hoi think S?! mA he evpnt of Pontiff' s; bank- * y xhe securit 7 would have been good. It is true that the instrument covers further advances, but these are expressed to mean and include all sums advanced and paid, including debts for goods supplied, bills and notes discounted and paid, "and for other loans credits and advances, et''"--.lt is to my mind very doubtful whetfter this includes any sum which the parties may agree to treat as an advance. Any agreemont which defendant was willing to make depended on the assumption that it could legally be made, but as I am satisfied that no mutual agreement was ever made I need not. decide this;, "The fast ground of complaint fajls under, several heads. With'respect to distraimivrupon a cteim for tormuch rent, that does not give rise to a right of action uness more goods are seized than will satisfy the - actual claim (Crowden v. Self 2 M. and R. 190). StJTfiif 6 al ol^ was not nearly satisfied. Then as .to. the suggestion of an improper ekle. ' The fridence KT\l S tha t of the.plaintiff,, who says that the goods sold were, worth double ae^money, and an expert witness ealllte?N^ b goods,as auctioneer and whose fairness is in lio'wav S^ 1 wi lo. Ba7 s that the *2 edTor 7- and fair^ attendthat +!,« T ,S ™all a and say, +w ?V. ICeS W6re fair P"bes- He SSiJ'f-vS- c Pfesence of the pT a i ntiff any l^5 lddmg w:? s.*he only thing in 'SSL / operating against • higher faS. *tai^ from bidding in the interest of a- person ■ whose goods are ■JeinesQld,^ J^an only say that if a Terdict..wer,e,giy.en which ignored this Jv&il^^JfZ^ of the VGrv -™ak evid«ic e > ; of the-'.pladntiff himself, it wouJor:i^v^Jtw6be::6et ?srde, I th-re-tore.sthji.tok^tllatvrit .would be an idle |°^ fe^# IW\, the question to the +;^ he"-^ s "^ h^ seizure of the plaintiff s milk cans, etc. No damage whatever ensued; A tenant is not entitled to protection from distress in: respect otall took of trade-he may happen to Possess. It is quite clear . that, more than enough was left to satisfy the X- ri?aaS °f A 7 of the Stress Act 1880. As to the particular things to be taken or left, the plaintiff gave no aasifitance to the bailiff by claiming any particular thing, but 'really a£ quiesced in-the telection made while

relying on the impression that the distress was altogether unlawful. Ine last point is that which arises upon the action of the bailiff in leS IK++J IS> I Inde«tand,1 nde«tand, conceded tnat this was a trespass though prely r^^ff with a bofiafide ojoject. I was at first inclined to think this gave rise to a claim for nominal damages.. It could not be suggested that it gave nso to anything more. It j Si ,?m'i an i^g^arity or unlaw--1? «f +i *£? .class cover*d by section IRRfi tj? Distress and Replevin Act, 3868, which entitles the party grieved t fT c- for the Lage Siq of 101^ 1 • ac*l<>n l of trespass, etc. I K 6,? to think that this enabled the plaintiff to recover nominal damages, but I am now satisfied That the very purpose of the section was to provide for damages caffing fof for ISno Ctn? n in T the »lar «»» «S l^elV^arkJ^S^L.^.^ The defendant moved for judgment to ? °f Pen f°r him to do Sor to move for a non-suit, but as he did not distinctly renounce his right to 2 inJ tT Cc m the eVent of hi^otion tailing the proper course is to order with costs as per scale, witnesses' ex penses, a nd disbursemeAts to be fixed oy the Registrar. fofa IRi"tchi1 R i"tchis f on ' fo" Plaintiff, ask ed Snin^-ff +y Proceedings to enable plaintift to consider the question of appealing. After argument as to a stay of proceedings in the non-suit, and as to the counter-claim it was agreed that the matter should be mentioned on Saturday "iKmia De