AKAROA RESIDENT MAGISTRATE'S COURT.

Akaroa Mail and Banks Peninsula Advertiser, Volume V, Issue 471, 28 January 1881, Page 2

AKAROA RESIDENT MAGISTRATE'S COURT.

Bisfouk Justin Avlmkr, Fsq., PM

Ti'KsiUY. Jan. 25, 18S1

CIVIL CASKS

V. an 1 W. Masefield v. Harper ; claim, £100, for damages done to plaintiffs' land by the negligence of defendant's servants.

Mr Joyce appeared for the plaintiffs,and Mr Si ringer for the defendant.

Mr .Joyce called defendant, who de- , posed to being a surveyor. He bad 1 certain men in bis employment. He had I never given bis men instructions to set I fire to the bush. Their contract was to , cut the lines, not to bum them. By Mr Stringer—He estimated the quantity of bush burnt at fifteen acres. John Frank, huslunan, deposed that he I was working for Messrs Masefield. On sonic day in November ha was al work in , the bush. Defendant's men were on the line At about 11 a.m. saw a fire start. The fire started on the track. The wind was between N. and N.W. Between 25 and 30 acres were spoiled by the fire. ByMr Stringer—Was between eleven and thirteen chains away from the line. The line was a'-out East and West. When he saw the (ire it was on the line. Ilfcd known a fire in run 100 yds in two minutes. It took him about a quarter of an hour to get up to the place. The fire might have been burning an hour then. When he got up there defendant's men were laughing. Mr Masefield, one of the plaintiffs; deposed Ihat a line was being cut through his land by defendant. No sellers lived within two miles and the line ran through dense bush, leading nowhere but to the cliffs. He bad had a conversation with one of the defendant's men. who told him that they had put a fire in the line to clear the rubbish. He further said that he did not think it was that fire which burnt tho bush. He (witness) estimated ' the d-unage done at £100 at least, Th" fire started on the line. Several attempt;; ! had been made to start fires, but the/ bad not succeeded. Mr Joyce asked whether Mr Harper's . men had fired other lines. 1 Mr Stringer objected to the question as 1 irrelevant to the present case. Mr Joyce wanted to show connivance on the part of defendant. After argument by counsel, the Bench sustained the objection and unallowed tho .question. James Taylor, who described himself as '• anything," said he was working for the plaintiffs. The day before the fire he cautioned defendant's men to be careful about fires. Saw smoke about 1! a.m Went up about 5 p.m. and saw the fire. Ii had been lighted along the lino. By Mr Stringer—When he first saw the smoke he could not fell to a chain or two where the fire slarted. John Martin, assistant surveyor to defendant, deposed that on the day in question he had no fire on the line. Had lighted a billy lire off the line. R'-meiii-bered having a conversation with Mr Masefield. Told him he (witness) had lighted a lire. Did not call it a billy lire. Mr Joyce— ' Have you been in the habit of'firing lines? " Mr Stringer objected to the question,and the Bench disallowed it. Examination continued—Did not toil M< Masefield that he lit the lire to clear away rubbish. i By Mr Si ringer—Had instructions from defendant not to light fires. Lit the billy fire on his own account. When he first saw the fire it was about three or four chains away from the line on Mascfndd's section Heard sounds like, someone using a bill-hook. Immediately afterwards saw smoke. The fire had been burning about two hours when witness lit the billy fire. The fire stopped them from working. Fires were a hindrance to (heir work. The other men were not of witness's sight that day. James Dalglish corroborated Mr Ma:e field's account of the conversation between him and the witness Martin. The latter had said that a fire was kindled to clear the line but that the fire which did the damage broke out a chain or two off the line. George La Coste knew (ho line referred to. On the day of the fire saw smoke rising. Had been on it since the lire, and chained it. Fires had been lit on various places along the line. Estimated tlie damage done at £2 an acre for 25 acres. F. W. William estimated the damages done at £24, viz £1 an acre for 24 acres. Etienne Lelievre said it would cost £2 an acre to clear up the ground. The fire might make a difference to the land of a sheep to the acre for ever. This was the plaintiff's case. Mr Stringer would submit tint plain tiffs must be nonsuited. No evidence had been adduced that defendant's men had lit the fire. Martin had been called by the j plaintiffs and his learned friend must : accept the evidence of his own witness, j .'-Y-conclly ho would contend ihaj. a. !r :! l! ' for liio sake oi; argument tint defendant's 1 : men id: the lire. still defendant was not ; i resnonsiblo. The act had been done not ' i only wh.hoiH 1 . his .'n-.thoniy, but contrary t> bis authoiity Furiher it was an act - beyond (he ordinary scope of iheir em- i piuynoui, and therefore I be master was ] ii.,i liab!'. As :i. g'-ner--d rule he admitted ,- i!:m|. a nia cr v.-.n; liable- civilly for the t

rule had its limitations, and this was one of them. He quoted a number of cases showing that where the act done was beyond tbe ordinary scope of the servant's employment the master bad been held not to be liable. Mr Joyjo replied briefly on the nonsuit point. His Worship said ho would make a note of the objection raised, but would prefer to hear the evidence for the defence. For the defence— Mr Stringer called Henry Hart, Thomas Peed, and William Farrell, who with the previous witness, Martin, formed the party in defendant's employ. They all swore that none of them lighted the fire in question, that the fire originated in defendant's bush, that it impeded thorn in their work, and that they had strict injunctions from defendant not to light fires. Hart admitted that be and Martin ha 1, on the day before the fire, attempted to light a fire to get rid of some obstructive " lawyers," The lawyers however were too green and -would not burn. Reed and Farrell denied ever having seen Martin fire the line. Mr Stringer submitted that on the merits of the caso the weight of evidence was entirely in favor of Ids client. No direct ev.dence as to tbe origin of tbe fire bad been adduced hy plaintiffs, while if His Worship accepted the hypothesis of tho plaintiffs he must believe that four mem who had no interest to serve in doing so i hail deliberately perjured themselves. Mr Joyce said the only question for-the Bench to decide was the amount of damages. His clients did not desire to make money out of the case, and whatever was over after paying expenses they would present to Ihe hospital, Mr Stiinger characterised this as a wretched ad misericordiam appeal. Continuing—Mr Joyce contended that there was no doubt that the fire which the witness Hart admitted having slarted on I he previous day had been smouldering, and Ihat the north west wind had caused it to break out. The Court bcie adjourned for an hour, and on resuming His Worship said he should reserve bis decision till Tuesday. February 1. Meech, Creditor's trustee in the estate of W. Kearney, v. G. Black. Mr Joyce, for plain till stated that defendant bad paid a certain sum into court which they were willing to accept. Rodrigues v. O'Reilly. Mr Joyce for plaintiff, Mr Stringer for defendant. Mr Joyce said plaintiff had made a series of blunders. Tho re-hearing ought to have been applied for on the second case. He and defendant's counsel bad gone into the papers, and he did not intend to call upon his friend to answer I he present case. Mr Stringer contended that Ihe re hearing ought not to h've been granted at allHe admitted that Rodrigues was an injured man. O'Reilly had had the money and ought to pay it. At the same time there should le some finality in such proceedings or the result would he endless litigation. The only ground on which a re-hearing ought to be granted was that plaintiff had fresh evidence to produc c which h" could not get at the time of the former trial. He had no right, having found out the weak points in his own, o r his opponent's case, to seek to patcli i. up by obtaining a re-hearing. Case struck out; the parties lo take such fu! lire proceedings as they might be advised. Paget v. Porteous. No appearance of either party. Case struck out. G. J. Back v S. Johnson; claim, £11 Bs. Mr Stringer for plaintiff, Mr Joyce for defendant. Defendant pleaded bankruptcy. Plaintiff deposed that he had never received notice of the bankruptcy, and th«t subsequently defendant told bin: that he had not put his name on the list of creditors, as he intended to pay his and oilier small accounts in full. Mr Stringer could not dispute the certificate of discharge, but would ask the Court not to give costs. Mr Joyce asked for the usual costs, and characterised the ease as a " tvy on." Judgment was given lor defendant, with costs. J. Brown v T. Brooks and S. Lee, treasurers of the Head of the Bay raves. Mr Joyce for plaintiff, Mr Stringer for defendants-. Mr Joyce said, this was a claim for the sum of £14 ss, being the net amount of a prize «-on by his client's horse in a race. Plaintiff'deposed that he owned a horse named Hollyhock. It ran a race called the Publican's Purse. A horse named Dick came in first. His horse ran second lie entered a protest against Dick on various grounds. One was that be was not en'ered in time. Cautioned tbe stewards not to pay the money to any j body but himself. With regard to his ■ protest they '-chucked it out." Before going any further, Mr Stringer i for defendants claimed a nonsuit on the 1 ground tint one of tho rules under M-bi.-h 1 the races were run was that the decision I of Ihe stewards was to be final. I Mr Joyce bad authorities to show thai i where tho stewards had not done their I buy, a court of lav could interfere. If I Llis Wot : ip would hear the evidence, ncl reserve (he point, he would be happy o .-end him down ibe authorities. His i

His Worship entered up a nonsuit with solicitor's fee, £1 Is. Callaghan v Gorman. Mr Joyce for plaintiff, Mr Slringer for defendant. This was a claim for£t I ss, commission 0 i some land alleged by plaintiff to h-ivo been sold for defendant through his instrumentality. Plaintiff having been examined, Mr Joyce called Patrick Gorman, a lu-other of defendant. This Witness bad beard plaintiff and defendant and his brother talking about, some land, but had not taken notice of what they said. Had his own business to mind, and bad not "taken notice." All tbe ingenuity of counsel failed to elicit anything more from the witness than this. Mr Stringer, addressing Mr Joyce— " Have j-ou any more witnesses ? " Mr Joyce—"Yes, another one just tbe same." The " other one," Win. Gorman, proved if anything more obdurate than bis brother. He knew that his brother had some land, and that he had sold it to Thacker. Knew nothing about an}' bargain. Knew nothing about commission. In a general way knew nothing at all that counsel wanted him to know. A. I. McGregor was called, but his evidence was unimportant. Defendant gave a version of the affair entirely different from that of p!aintiff,and tho Bench gave judgment for defendant, allowing £1 Is as solicitor's fee. Rodrigues v O'Reilly.—By consent of counsel this case was now taken. The facts are briefly these :—T. 11. Worsley gave defendant a promissory note for £25, which plaintiff discounted. The. note was dishonored, and plaintiff consented to take a fresh one in lieu of the one dishonored. The fresh one was made direct from Worsley to Rodrigues defendant endorsing it. This was also dishonored. According- to plaintiff's statement he at once showed the notice of dishonor to defendant. Defendant denied this, and in the action that ensued, plain. tiff was nonsuited on the ground of want of limely notice being .given to defendantSubsequently plaintiff sued Worsley and obtained judgment. lie alleged that defendant had promised if he (plaintiff) would get what he could out of Worsley. he (defendant) would make up the balance. This statement was corroborated by Mr G- W. Nalder. Vvdiat plaintiff: could get out of Worsley proved to be what mathematicians would call the minus quantity of seven shillings. He therefore now sued again on the original unsatisfied bill. • For plaintiff, Mr Joyce contended that there was evidence of notice having been given to defendant and even if this had not been done, his subsequent promise to pay acted as waiver of notice. For defendant, Mr Stringer argued that the caso bad been settled in his favor twice Six months had since claused, during which time plaintiff b n d allowed his claim to sleep. It was not fair to his client that it should now he brought up again. If such things were permitted a man wilh a judgment in his favor would still never be safe. His Worship gave judgment for plaintiff for the amount of the bill. £2fi, with costs and solicitor's fee, £2 2s. The Court adjourned at 5.30 p.m.