THIS was an appeal, both on the law and on the facts, from a decision of W. R. Haselden, Esq., S.M., Wellington. Prior to the hearing of the appeal a summons was taken out by the appellant for leave to adduce additional evidence, and the matter was argued in Chambers. The appellant was an assignee of a lease under which the respondent was the original lessee. The lease was one of premises in the City of Wellington, for a term of ten years ending on the 31st of December, 1900. It contained a covenant by the lessee that he would forthwith place the buildings in good and tenantable order and repair, and would throughout the term keep and maintain the same, and, at the expiration or sooner determination of the term, yield and deliver up the same in such good and tenantable order and repair. Through various assignments the appellant became the equitable owner of the lease in April, 1895, and went into possession of the premises and remained in possession until the end of the term. He had not the legal title to the lease, as the land was under the Land Transfer Act and the transfer to him was not registered. The appellant did not, in the immediate assignment to him, expressly covenant to perform the covenants of the lease, or to indemnify the lessee or previous assignees. The appellant committed breaches of the covenant to repair and yield up in repair, in consequence of which the respondent, as original lessee, was sued in the Magistrate's Court, Wellington, by the lessor. The lessor recovered judgment against the respondent in this action for £52 15s. damages and £7 19s. costs. In the action in which the present appeal was brought the respondent sued the appellant to recover over against him the sum of £63 17s., being the sum of £60 14s., the amount of the judgment recovered against the respondent by the lessor, and the sum of £3 3s. for the costs incurred by the respondent in defending the lessor's action. The amount claimed by the lessor in that action was £60 and costs. The respondent, by defending it, had therefore reduced the claim by £7 58. The Magistrate, in the judgment now appealed against, awarded the respondent the full amount claimed-namely, £63 17s. and costs. Other facts of the case will be found stated in the judgment of Stout, C.J. In an affidavit filed in support of the summons for leave to adduce additional evidence in the Supreme Court the solicitor for the appellant stated-(a) That James Lockie, the principal witness for the respondent (plaintiff in the Court below), had stated in his evidence that a report which he had given as to repairs required at the end of the appellant's occupation was given upon instructions that he should report as to the repairs that should be effected by the owners before offering the pro perty for lease for a new term of ten years, and that this evidence did not appear clearly in the Magistrate's notes; (b) that certain admissions and statements of counsel made at the hearing in the Court below, as to the date of a certain action in the Supreme Court in which the appellant was defendant and in which Messrs. Findlay, Dalziell, & Co. were acting for him, and as to how far they were acting for him. after the determination of that action, did not appear in the notes of evidence, and that these were material as bearing upon the question whether the appellant had notice through Messrs. Findlay, Dalziell, & Co. that the action by the lessor against the respondent was coming on for hearing; (c) that it was advisable that further evidence should be given of the condition of repair of the buildings at the termination of the appellant's occupation; and (d) that from a careful perusal of the Magistrate's notes he (the appellant's solicitor) was satisfied that a clear and complete statement of all the essential facts in the action was not disclosed by the notes, and that the Supreme Court could not fairly adjudicate upon the appeal unless such notes were supplemented and explained by other evidence. The solicitor for the respondent, in an affidavit filed in opposition to the summons, stated (a) That he considered that the notes of evidence contained an accurate and sufficiently complete and clear statement of all the essential facts brought before the Magistrate, that the notes were taken by the Clerk of the Court at the Magistrate's direction, and that counsel had full opportunity of seeing that full and correct notes were taken of any portion of the evidence that they considered important; and (b) that the case first came before the Magistrate on the 23rd of July, 1901, and was then partly heard and adjourned to the 30th of July, that on the 30th of July the plaintiff closed his case, and after one witness for the defendant (now appellant) had given evidence the case was further adjourned to the 1st of August at the appellant's request, and that the appellant had therefore had ample tim to procure whatever evidence he thought necessary. Dalziell, in support of the summons for leave to adduce additional evidence: The leave asked should be granted: "The Magistrates' Courts Act, 1893," section 161. Smith v. Douglas (1) shows that the kind of evidence acted on here was not sufficient. Menteath, contra, referred to Taylor v. Griffin(2), Beaumont v. Whitcombe & Tombs(3), and Union Steamship Company v. Hobbs (4). No reason has been shown for what would practically be a new trial. STOUT, C.J.: — This matter is of some importance, because there have been few cases decided under this section, and only one appears to have been reported. There is no doubt that the Court has power, under section 161, to take additional evidence on an appeal upon the facts. But this power should be very carefully exercised, and only under very special circumstances, as where, owing to some strain or stress, a party has had no opportunity of giving certain evidence in the Court below, or there is some other reason which necessitates an exercise of the power in order that justice may be done. When the parties have fought the case out in the Court below, and there have been adjournments, and a large amount of evidence taken, I do not think that the Supreme Court should use this power. The Legislature has provided that the case shall consist of a copy of the proceedings, and of the notes of evidence taken by the Magistrate. These are to be the basis of the appeal, and under ordinary circumstances the appeal should proceed upon these alone. I see, however, that there are one or two points as to which there appear to be omissions from the notes. I do not know whether they will prove to have any real bearing when the case comes to be disposed of; but on these I think I should be permitted to receive affidavits for the purpose simply of supplying the omissions from the notes. The notes were taken by the Clerk, and not by the Magistrate. If they had been taken by the Magistrate I might be bound by them, if there was any conflict as to what was said. The first point is as to the date of the ending of the case in the (1) 16 C.B. 31. (2) 3 Gaz. L.R. 14. (3) 16 N.Z. L.R. 133. S.C. 1901. TATTLE 2. MCKERROW. S.C. 1901. TATTLE V. MCKERROW. Supreme Court; the second, as to whether Mr. Tattle had The costs of this application are reserved until the hearing. The appeal was afterwards argued. Dalziell, for the appellant: The appellant can only be made liable for the natural consequences of his breach-that is to say, for the actual damage occasioned. There was no express covenant by the appellant, and therefore the costs of the action against the respondent cannot be recovered, and the actual damage from non-repair must be proved: Mayne on Damages(1); Short v. Kalloway(2); Penley v. Watts(3); Walker v. Hatton(4); Logan v. Hall(5). The respondent should have made the appellant a third party in the action against the respondent, as in Hornby v. Cardwell(6). As to the extent of the liability of an equitable assignee, see Close v. Wilberforce(7). And as to what is a sufficient performance of whatever implied agreement there may have been here on the part of the appellant, see Foa on Landlord and Tenant(8); Woodfall on Landlord and Tenant(9): (1) 6th ed. 102-4. (2) 11 A. & E. 28. (3) 7 M. & W. 601; 10 L.J. Ex. 229. (5) 4 C.B. 598; 16 L.J. C.P. 252. (7) 8 L.J. Ch. 101; 1 Beav. 112. S.C. 1901. TATTLE Crawford v. Newton(i); Proudfoot v. Hart(2); Harris v. Jones (3). There should have been detailed evidence of the repairs required: Smith v. Douglas(4). The appellant, not having had notice of the action against the respondent, is not McKERROW. estopped by the judgment in that action: Duffield v. Scott(5); Jones v. Williams (6). In view of the law as appearing from the cases cited, the respondent cannot recover either his own costs of defending the action against himself or the costs which were recovered against him. There was no evidence as to the costs of defending. As to the balance of the claim, there is no proper evidence of the extent of the dilapidations. There should have been a nonsuit. At all events, the case must be referred back, the Magistrate having misdirected himself as to the measure of damages. Menteath, for the respondent : The respondent is entitled as lessee to an indemnity over against the assignee: Burnett v. Lynch(7). [STOUT, C.J.-The latest case adopting that case is Moule v. Garrett(8). But that is not the point here. The question is, What is the measure of damages as between the lessee and assignee?] Moule v. Garrett(9); Humble v. Langston(10); Close v. Wilberforce(11); Willson v. Leonard (12); Wolveridge v. Steward(13): these cases show that the position of a lessee is that of a surety. The costs of defending the action against the respondent were properly allowed. There was sufficient evidence in support of the item. It was in evidence that the respondent appeared by counsel, and the Court can take judicial notice that what was allowed by the Magistrate was the proper fee according to the scale in the Magistrate's Court. The respondent could have recovered his costs as between solicitor and client: Smith v. Compton(14). Lewis v. Peake(15) is another case as to the recovery - over of costs. Neale v. Wyllie (16) was practically overruled in Walker v. Hatton(17). In that case the Judge said that if the plaintiff had paid into (1) 36 W.R. 54. (2) 25 Q.B.D. 42. (3) 1 Moo. & R. 173. (4) 16 C,B. 31. (5) 3 T.R. 374. (6) 7 M. & W. 493; 10 L.J. Ex. 120. (7) 5 B. & C. 589; 4 L.J. (O.S.) K.B. 274. (8) L.R. 7 Ex. 101. VOL. XX.-34. (9) L.R. 5 Ex. 132; L.R. 7 Ex. 101. (13) i Cr. & M. 644; 3 L.J. Ex. 360. (16) 3 B. & C. 533. (17) 10 M. & W. 249; 11 L.J. Ex. 361, |