S.C. 1902. LAFFEY บ. PETERS, In re LAFFEY. And also contained a power of re-entry as follows: Provided always, and these presents are upon this express condition, that if and whenever any part of the rent hereby reserved shall be in arrear for twenty-one days (whether the same shall have been legally demanded or not), or if and whenever there shall be a breach of any of the covenants of the lessees herein contained or implied (other than their covenant for the payment of rent), or if there shall be a breach of any of the covenants of the lessees contained or implied by a certain deed of lease bearing even date herewith, and made between the same parties, of part of Section 8, Block XXXIX., Town of Dunedin, or if the lessees, or either of them, shall be convicted of any offence against the licensing laws for the time being in force, then and in any such case the lessor may re-enter upon any part of the said demised premises in the name of the whole, and thereupon the term hereby granted shall absolutely determine; and it is hereby agreed and declared that if this lease shall be determined by re-entry under the foregoing power, or if possession of the said premises shall be recovered by the lessor by process of law, the lessees shall pay a proportionate part of the said rent from the last date of payment down to the day of such re-entry. On the 6th of December, 1901, the defendant Alfred Isaac Peters, the holder of the licence for the hotel, was convicted under "The Licensing Act, 1881," for refusing to admit without any unnecessary delay a constable in the execution of his duty demanding to enter in pursuance of section 185 of the said Act. The right to recover possession was admitted. The other facts are sufficiently stated in the judgment. The action and motion were heard together. Sim and Stilling, for the plaintiff :-. The only question is as to mesne profits. The conviction took place on the 6th of December, and the plaintiff is entitled to mesne profits from that date till the date of judgment. Hosking and Hanlon, for the defendants: The plaintiff is not entitled to mesne profits, as such mesne profits imply wrongful possession; but by virtue of "The Land Transfer Act, 1885," section 92, a lease was not voided in any way until there was actual occupation and possession. [WILLIAMS, J.-Supposing forfeiture is decreed, if possession is rightful until the Court says it is wrongful there would be no mesne profits.] Section 92 of the Land Transfer Act provides that the estate of the lessee is to cease and determine on notification in the register. [WILLIAMS, J.-Surely the plaintiff can recover somehow?] The defendants are entitled to get rid of their liability for rent, otherwise they might be sued hereafter for rent. Let the plaintiff amend his pleadings, and claim for rent. Sim, for the plaintiff : We are not bound to amend the pleadings, and decline to do so. The plaintiff's rights are clear, and the question of which way he is to enforce them is immaterial. The Land Transfer Act was never intended to alter the rights of the parties as to mesne profits. WILLIAMS, J. :— I do not think that the Land Transfer Act alters the case, Mr. Hosking. It seems to me that if the plaintiff recovers judgment in the present action it shows that at the date on which the breach of covenant was committed he had a legal right to take possession of the premises, and to turn the lessee or his representatives out of the place. The notion of the law of mesne profits was that mesne profits were given to the landlord after his right to re-enter had accrued—were given to him, in fact, from the moment at which he had a right to take possession. I do not think that the Land Transfer Act alters that, or is intended to alter it. The existence of the covenant in the present lease for payment of rent up to the determination of the lease may cause a possible inconvenience to the lessor, but that is not likely. It might be a condition of allowing mesne profits that the landlord should waive his rights under this covenant. The Court, in giving mesne profits, could impose this condition. Hosking.-Perhaps your Honour will make an order to that effect. WILLIAMS, J.-Yes; when are they up to? Hosking.-Up to to-day. WILLIAMS, J.-Just so. Judgment for plaintiff for possession and mesne profits at the rate of £7 per week from the 6th of December to date, on condition that the plaintiff waives any claim for rent under the covenant. Costs on the highest scale, as if £1,000 was claimed; disbursements and witnesses' expenses to be fixed by the Registrar; second counsel certified for. Hosking and Hanlon, in support of the motion: The Court is asked to adopt the construction of section 25 suggested by Denniston, J., in Hammond v. Mangham(1)— (1) 17 N.Z. L.R. 24. S.C. 1902. LAFFEY v. PETERS, LAFFEY. 1902. LAFFEY V. PETERS, In re LAFFEY. 66 S.C. viz., that relief may be granted if the breach happened without fraud or gross negligence irrespective of accident or mistake. If this construction is not adopted the words "without "fraud or gross negligence" are meaningless. A fraudulent accident or mistake is impossible. The section ought to receive a liberal construction: Lawson v. Douglas(1). If the Court will not adopt this construction, then we say that the breach happened by accident. "Accident here means “without design or participation": Murray's Dictionary; Webster's Dictionary: The Century Dictionary; Hensey v. White(2); Pomeroy's Equity Jurisprudence(3); Spence's Equitable Jurisdiction of the Court of Chancery (4). In equity relief may be granted irrespective of anything fortuitous for non-payment of rent, in the case of penalties, and when redemption of a mortgage is claimed. Further definitions on the same lines are given in Stephen's Digest of Criminal Law(5) and in the Encyclopedia of English Law(6). Here the licensee had gone to bed and was asleep. The barman was properly in possession of the key. The licensee cannot be always on the spot and awake. There was no evidence of design on the part of the barman. In all the New Zealand cases only the conduct of the lessee himself was considered, and in all there was not wilfulness or gross negligence on his part. In James v. Patterson (7) there was no real attempt to find out the truth. Patterson v. Murray(8) was a case of gross if not wilful breach, and does not apply to this case. Further, the covenant was not broken even if there was unnecessary delay: Searle v. Weaver(9). The licence was not endangered. The duty imposed by section 185 is not on the lessee, but on the licensee. He was asleep, and there was no evidence that the refusal to admit was not accidental on Mrs. Peters's part; and neither the refusal to admit nor being convicted was a breach of covenant: Searle v. Weaver(9); Bryant v. Hancock(10); Buckeridge v. Tucker(11). No damage has ensued, and whether there will be a renewal or not cannot be determined till the poll in June. The breach, if any, can be compensated for in damages. [As no decision is given on this point, the argument is omitted.] Sim and Stilling, to oppose: The applicants must show accident or mistake, and without fraud or gross negligence. The only authority for their argument is Hammond v. Mangham(1), but at page 43 of that case Denniston, J., states and adopts the other view, and Lawson v. Douglas (2) is based on the other view. The matter is set at rest by Nash v. Preece(3), where the conditions of relief are indicated at page 153. In Hammond v. Mangham(1) Prendergast, C.J., took this view (see page 28). The onus is on the applicants to prove that the breach occurred by accident without fraud or gross negligence of either of them. The conviction connotes-1, A demand to enter; 2, communication to the licensee or some person authorised to open the door; 3, lapse of a reasonable time for compliance; 4, refusal to comply. It is absurd to talk of accident in connection with such a conviction. If accident had been proved there would have been no conviction. The licensee would be liable at criminal law for the act of his servant, and the rule is the same here: Bond v. Evans (4). The case is made stronger by the presence of Mrs. Peters, one of the tenants. [The argument on the question of compensation is omitted, for the reason already stated.] Hosking, in reply: In Nash v. Preece(3) the question involved was not discussed, and the terms of the section were merely quoted. As to accident as ground of relief in the case of an act of a servant: Buckeridge v. Tucker(5). WILLIAMS, J.: — This is an application, under section 25 of "The Supreme Court Act, 1882," by the lessees for relief against the forfeiture of a lease after a recovery in ejectment by the lessor. There is a condition in the lease that if the lessees, or either of them, shall be convicted of any offence against the licensing laws for the time being in force the lessor may re-enter. This condition was broken by the conviction of Peters, the licensee of the premises, who is one of the lessees, of an offence under section 185 of "The Licensing Act, 1881." By section 184 of "The Licensing Act, 1881," any constable may, for the purposes therein mentioned, at all times enter on any licensed S.C. 1902. LAFFEY V. PETERS, In re LAFFEY. S.C. 1902. LAFFEY v. PETERS, In re LAFFEY. premises. By section 185 any person who by himself or by is expressly made liable to be convicted for the act or omis-. |