AKAROA RESIDENT MAGISTRATE'S COURT.

Akaroa Mail and Banks Peninsula Advertiser, Volume 2, Issue 112, 14 August 1877, Page 2

AKAROA RESIDENT MAGISTRATE'S COURT.

Friday, August '10, 1877. (Before Justin Ay liner, 'Esq., R.M., and His Worship the Mayor.) , Civil Cases. -■';'".' f. lelievre v. j. p, mullen. This was a claim for £11 8s for damages sustained by plaintiff in defendant;breaking down two panels" of fencing,' and, stopping plaintiff's workman from proceeding with their work. Mr. Inwood appeared for the plaintiff. E. Lelievre, agent for F. Lelievre, deposed, that he went on Friday August 3, to see bow the fence was being proceeded with by the contractor. It was not a dividing fence, there was a road between, saw the defendant filling up a post hole. Asked contractor what was the matter, who said Mullen had pulled out two posts and stopped a third from being put in, went to Mullen, and asked him the reason for his act, who said he should pull out every post plaintiff put in. Then told him he should sue him for it. By Mr. Inwood : The contract was for about 20 chains at 12s a chain. The line of fence was taken "from an cd peg that had been in some 20 years, and one that had been more recently fixed by Messrs. Fenton and Townsend. Fence could not go in to Mullens land. The contractor looked to me for payment, and had been kept from tlie work a week. (Plan handed in shewing section and line of fence.) It is a straight line from peg to peg, except a -slight turn inthe road. - By defendant. You told me you would pull up every post I should put in. I said I should get Mr. Fenton to survey the line or go half expenses towards getting a surveyor from Christchurch. The road is in the right place. The pegs, are on the upper side. Contractor's name is George Kearney. , George Kearney deposed : had contract with Mr. Lelievre to fence about 20 chains at 12s per chain. The line was pointed out to me. Had'put up two chains when Mullen told me not to put up any more as he was going to pull down what had been done. By defendant: You said you were willing to submit the matter to two men. By the Bench : He pulled down two panels. Ha»*old. 11. Fenton, surveyor, gave evidence to the effect that he had been employed by Mr. Lelievre to survey a line of fence by the road, that he had done so and put in pegs. The fence was on the south, or upper, side. The line was in accordance with the Government plan and Crown Grant. (Map referred to.) Could not have been on the other side or would have been across the creek. In forming line made full allowance for the road in order to make sure. By defendant: I allude to the upper peg. Cannot say what plaintiff may have done, but I allowed well for the road. Have not seen the fence. Am quite sure the line I laid down was not on the road. Plaintiff, recalled, said : I drew the line from a peg put in by Mr. Fenton to the old peg, and allowed about two yards over not to go too close to road. Am certain did not cross road. By defendant: -I wen-t4)y the peg that has been there 20 years, and Mr. Fenton's peg. Defendant deposed that the fence was on the road, and that he had offered to submit the matter to Messrs. Roberts and Fenton but plaintiff objected. He merely wanted his rights according to his deed and tracing. J. Hartley gave evidence that he had the line surveyed by Mr. Roberts some years ago, believed the present fence was on the road. He understood that the peg by the creek was in the centre of the road. The present fence made by Mr. Lelievre took a different direction to the line surveyed by Mr. Roberts. The Bench adjourned the case to allow of a surveyor going to see if the fence is in the line laid down by Mr. Fenton. Mr. Inwood said he was agreeable to the adjournment, but remarked that defendant was out of Court in that as he merely objected to the fence as being on a road, he had nothing to do with it. The Bench considered it a question as to whether any of the public had not a right to pull down any fence that obstructed a recognised public road, but would make a note' of Mr. In wood's objections. The defendant persisted in fighting it out, when the Bench had no doubt the public would be very much obliged to him for taking so much trouble for them. JOHN GREY DAWBER V. E. W. MOREY. This was a summons for the amount of a dishonored acceptance for £25 10s. Mr. Inwood appeared for the plaintiff. There was no appearance of defendant. A set oil; had been put in for £11 rent of house and premises in German Bay. In ths absence of defendant the set off was not considered. The plaintiff dpposed that Mr. Morey had given him the note produced. He had applied for the money personally. Had received £3 10s since issuing summons. The balance owing with interest was £22. Judgment given for plaintiff for £22 with costs.

Saturday, Augdst It, 1877 (Before Justin Ayliner Esq., R.M.,) V. LELIEVBE V. J. P. MULLEN. This case had been adjourned from the day before to allow of a surveyor examining the present line of fence as being put up by plaintiff when pulled down by the defendant. Harold H. Fenton, surveyor, gave evidence to the effect that he had inspected line of fence, and measured it. It wasn'ot in the same line as that previously laid down by him, being more on Mr. Lelievre's land, and not ho much towards the road. He was prepared to state that the fencing pulled down was off the road, and on Mr. Lelievre's land. Mr. Inwood, for the plaintiff, in reviewing the case, said it had been ctearly shewn that the fence being put up by his client was not on the road, but that even putting aside this fact, arid the surveyor's'evidence the defendant had no right to take the law into his his own hands as the supposed encroachment was alleged to be on a public road, not defendant's land. He quoted authorities, showing that the defendant, supposing the fence to have obstructed the road, had his remedy in an indictment as one of the public, and in an action if personal injury was sustained, but that he had no power to interfere with the work himself. By the Bench. The damages were. merely nominal and test the case. The amount had been computed at' 19 chains at

12s per chain, and that his client had instructed him to say that the contractor would take seven day's wages at 12s per" day,-- /'■ .„••:.■ • ■ ... 7. - The >Bench ■ granted judgment for 20s damage's'and costs £4 10s. ' APPLICATION FOR RE-HEARING. E.W. Morey applied for re-hearing of the case John Grey Dawber v. self. By the Bench: He applied on the grounds that the plaintiff had come to him on the morning of the day on which the case was heard, and it had been arranged between them that the case would not be proceeded with on the understanding that he should pay the plaintiff the some of £10 on that (Saturday) morning. Acting on this arrangement, he had not attended tho Court. Defendant further stated that the note had not been presented for payment, and that he had put in a set-off. The Bench said the set-off was not considered as he had failed to be present to support it. Mr Inwood, for the plaintiff, denied having been informed of any arrangement of the kind mentioned by defendant,, and said it was a curious thing for him to assert the non-presentment of note and yet pay so much on account. The Bench declined a re-hearing on the grounds that it could make no possible difference in the judgment already given. Monday, August, 13. An inebriate, who appeared for the first time was fined 20s, or 48 hours imprisonment for drunkenness, and wilful damage to property. The fine was paid.