MAGISTERIAL.

Ashburton Guardian, Volume VII, Issue 1855, 31 May 1888, Page 3

MAGISTERIAL.

ASHBUIiTON— THURSDAY.

(Before Captain Wray, R.M.) DBONKENNESS. Charles Johnston was oharged with having been drunk at tbe Railway Station. A fine et 20s and costs was inflicted, with the alternative of 7 days imprisonment. A first offender for drunkenness was fined 5s with the alternative of 24 hours imprisonment. A YOUTHFUL BUBGLAB. George Neil, a little boy of about Beven years of age was oharged with breaking into the place of business of J. 0. Duncan, and stealing therefrom penknives, pena, watchains and a quantity of other artioles, It appeared Mr Duncan left his office for a short time and during his absence the boy entered the the place and stole the articles, giving most of them away to playmates. — The boy admitted the offence and the polioe did not wish to proceed with the oharge, which was one of felony, against him. — The boy's father stated that he looked after the boy as well as he was able,- an£ it was through the influence of bad companions that he committed the theft. — The polioe said that when the boy was oharged with taking the goods he admitted having done so, and did not seem to have any idea that he had done anything wrong. — The Magistrate warned the father to look after the boy, and dismissed the oase. HORBE_.BEAKI.NG IN A STBEET. Henry Mutton was oharged with breaking m a horse jn a publio plaoe, namely East Street. The case was not a very serious one and a nominal penalty of Is was imposed. AT LABGE. Thomas Totty for having allowed a horse to wander at large was fined ss. CIVIL CASES. ABhburton Publishing Co. v P. Willmott, claim £4 12s 6d. Judgment for plaintiff by default. W. J. Hayes vA. Proctor, claim £64 10a on a dishonored bill, Mr Caygill for plaintiff. Judgment for plaintiff by'default for amount. J. Moison v P, Twomey, olaim £1 9s Od for goods supplied and for interest. Defendant admitted the debt but objected to the oharge for interest. Judgment for the amount, less interest oharged. H. Atkinson v Ashburton Woollen Manufacturing Co. Case adjourned for a week. Qr. J. P. Lublow v J. Fitzgerald, olaim £3 ss. Judgment for plaintiff by default for amount olaimed and oosts. W. Baylis vW. T. Harrison. Judgment summons £3 5a Bd, Mr Cuthbertson foi i plaintiff. Order made for amount to be paid on monthly instalments of 10a.

John Loder vA. Makey. Case adjourned for a week.

Wm. Meharry v F. Lowe olaira £2 12s, and Lowe v Meharry, claim £6 17s 6d. Mr Outhberson for Meharry, Mr Crisp for Lowe. Meharry sued for £2 12a work done on a road oontraot, and the oross-aotion was for the rent of a dray lent to Meharry. After hearing evidence the Magistrate said there waß not much to choose between m the oases. He gave judgment for an equal amount m each, thus squaring the matter.

Smithers v Druey olaira £6 2g 7d, and Druey v Smithers claim £IQ. Mr Crisp for (■jmithors and Mr Cuthbertson for Druey. In Smithere, claim judgment was given for plaintiff, the money to remain m Court till next stiting day when the cross-aQtion will be hea^d,

P. H, von Sohoeneberg v Chas. Lawrenoe, olaim £21. The plaintiff conduoled his own oase, Mr Purnell appeared for defendant. This was a new development of the camera front case which has been before the Court on two successive Bitting days. The claim was for labor, etc, aud wus exaotly Rimilar to that made on last Court day, when judgment was given against plaintiff, the dofon. dant having paid £1 into Court m full settlement of the claim;— Schoeneberg now stated he had ; some fresh evidence to lead.— The plaintiff examined a number of witnesa but not a single freßb relevant faofc waa elicited.— : Plaintiff then wanted an adjournment to call a fen more witnesses, but tbe Magistrate did not see the slightest reason to grant the Srequeßt. Judgment would be given for defendant, plaintiff being ordered to pay Q.QBtM§3fl2«, „..-*#

D. Wilson v the inhabitants of the Wakanui Road Distriot and tho Board thereof, claim £20.— Mr Wilding for plaintiff, Mr White for defendants. - This was a claim for damages sustained by plaintiff through an overflow of the Ashburton river, -whereby plaintiff had a quantity of soil washed off his land and his fences swept away, the loss being alleged to bo due to the aot of defendant Board. The plaintiff alleged that through the formation of a road and the erection of oertain fences the overflow of Btorm water was prevented from following its natural course, and he further alleged that m consequenoe of tbe wrongful end negligent aot of the Board lowering the road and cutting a channel, water from the river when it overflowed m July, 1887, was diverted on to his property, whereby, iv addittion to a number of fenoes, he lost three acres of valuable land. — Mr Wilding stated that the case was of a nature that was generally dealt with by the Supreme Court, but m the present instance both parties had come to the conclusion that the case had better be heard m this Court, but if any point arose which might seem to render such a cause desirable, the Magistrate would, doubtless, give leave to appeal. Mr "White argued that the claim had been wrongly brought. Application should have been made for compensation under the Publio Works Aot, and he Bhould not have brought an action for damages. He asked for a nonsuit on this ground, and quoted several olauses m the Aot m support of his contention. He argued, furthermore, that the plaintiff's olaim under the compensatory olauses waß now debarred, as. it had not been made within twelve months of the construction of the work out of whioh tbe alleged damages bad arisen. — The Magistrate thought the plaintiff relied on the faot that work had been done m July last whioh had oaused bim the damage now olaimed for. — Mr White said that m that oase the plaintiff would be within his rights m applying for compensation under the Publio Works Aot, but m any oase be oould not bring an aotion for damages. — Mr Wilding replied, submitting that Mr Wilson was follow- I ing the proper course. He quoted the oase Scott v EUesmere Board, m whioh it was held that a Road Board having by negligence oaused damaged was liable m an ordinary aotion of tort at common law. If the Board had aoted within its statutory rightß, and had not been guilty of negligence then it would not be liably m an aotion for damages, but the claim if made would have to be brought under the compensatory clauses of the Aot — The Magistrate was inclined to think Mr Wilding's distinction waß right, but made a vote of Mr White's objeotion. — The following evidenoe was taken : — David Wilson stated ha was the owner of certain sections -m the Wakanui Raod distriot, Till the formation of the road no water oamo into tbe gully on his property at the po ; nt where he lost the land, and till the Road Board made the outting he had never suffered any injury. There was never any scour m the gully till the outting was made by the Board. Iv the ordinary oour3e of things, no overflow of water from the river would find its way into the gully witness had referred to. There is a well defined depression from the point of overflow to certain gullies Bhown on the plan (produced). The road, called Wilson's road, was formed about nine or ten years ago. The formation of the road and the ereotion of fences had the effeot of preventing the water following its natural course along the dep?ession,and it followed the road. In! July last the Road Boards maintenance man lowered the road, and out a ohannel aoross, intercepting the water at the point marked on plan, and throwing it into the gully witness bad spoken of. There was a tremendous body of water ; it damaged witness's orop considerably, washing away the aurfaoe from a pieoe of land that had been ploughed. There was about an acre and a half of good land out of a pieoe of three acres completely Bpoiled ; the remainder was out off and so the whole was rendered valueless. The land was worth £16 an acre. Witness had his fences washed away m two or three different places. He had sustained damage greatly m excess of the amount he claimed. The whole of the damage was oaused through tho outting exeouted by the Road Board throwing the water into tho gully. When the cutting was made he gave notioe to the Board, and he also told Mr Fooks, who seemed astonished and repudiated having instructed the maintenance man, Kilgour. Witnooa did not know of his own knowledge who instructed Kilgour. At a meeting of the Board the Chairman told witness that the Board admitted sesponsibility for Kilgour's aotion. The overflow from the river oould have been prevented from flowing on the road if the fenoes along the line of the natural depression had been opened, and if there had been fords across the road. — Mr White submitted that tbe Board was not charged with negligently ommitting to pro* vide fords.

(Left Bitting.)