DISTRICT COURT.

Akaroa Mail and Banks Peninsula Advertiser, Volume V, Issue 522, 15 July 1881, Page 2

DISTRICT COURT.

Tuesday, July 12. (Before His Honor Judge Ward.) MOLYNKAUX AND OTHERS V. JAMES HAY. This was a claim of £117 3s, amount of loss and damage done to plaintiff's property at Pigeon Bay by a fire caused, as alleged, through the negligence of defendant, on or about the 21st day of March, 1881. Mr Button for plaintiff, Mr Harper for defendant. In opening the plaintiff's case, Mr Button explained that tho action was taken by John Molyne.'iux, H. Goodwin, and A. Goodwin, as trustees under the will of the late E. Goodwin. The defence was a denial of all the material allegations, especially that of negligence on tho part of defendant. The following evidence was then taken Price Goodwin deposed that he was brother of the Messis Goodwin concerned in the present action. The maps produced truthfully represented the lay of the country, with which ho (witness) was well acquainted. Mr Hay occupied the school reserve marked on the maps, and that gentleman »lso oecupio.l other sections indicated. [Witness then described the position of Goodwin's property with relation to other land shown on the map] On the morning of the 2t«t M-rch he was in Pigeon Bay, at Holmes' Point, lie saw Hinoke rising over the hill marked on tho plan. It was between 9 and 10 o'clock [Position of plaintiff's farm and sections burnt described.] When witness returned at night the fire had spread over a great portion of the farm. He estimated the damage done on grot-ind in crop at about 10s per acre. In aijJition to the grass, &c, a quantity of posts and rails, some hundred cords of fire wood, and timber lor building purposes were destroyed. [The items making up the claim were enumerated, including charges for repairs, and labor rendered necessary by damage through the iire.J In cross-examination by Mr Harper, tho witness stated that he had on different occasions burnt bush on his own land. It was customary to burn bush at Pigeon Bay. The Hays and his family were neighbors. They (his brothers) rented a piece of land (about thirty acres) from Mr Hay. Din not know of any arrangements i>etween the parties to burn the wood oir for the purposes of clearing. The witness was further cross examined at coiK-<uler<ible length in relation to the terms of the agreement befween Goodwin and llav touching the reserve. Henry Goodwin said he was one of the piantiffs, and one of the trustees under his lather's will. Remembered the morning of 21st March. At about nine o'clock his brother Edward directed his attention to smoke issuing- over tho hill. They both started to see what was the cause. They both came over the hill by tho north west corner, section 10905, and saw a man lighting fires on the dividing line between sections 10909 and 10906. Recognised Mr J. Hay, the defendant, and asked him what he was trying to do—did lie intend to roast them out. Hay made no answer at the time. Witness remarked that there were bullocks in the bush, and Hay said they would clear out. Witness then returned to hia premises, by which time- the fire had spread considerably. The remainder of the witness's evidence went to show the extent of the fire and clamr.ge sustained, being a corroboration of the testimony given by his brother. Some of their sections were mortgaged, but he could not say which. James Pitcaithly being questioned as to the cause of the damage to plaintiff's property, said he had no doubt whatever that tiie fire camo from the reserve occupied by Hay. It was highly imprudent to light a fire on such a day when there was a high wind blowing. G. R Kay. C. B. Kay, William Patten, and W. Fonusten, were also examined, the iatter stating that he lighted a lire on Wilson's land on March 21st, but that it did not spread to Goodwin's land. Alexander White, and Robert, James and David Pitcaithley-, were called in oorroboration of the evidence. Edward Goodwin, one of the plaintiffs, was the last witness. This concluded the case for plaintiffs, y Mr Pitcaithley. re-called, said, in rep

to Mr Harper, that he had a portion of his fencing burnt. He made no claim. At this stage it was agreed to adjourn and take defendant's case to-morrow. The Court accordingly adjourned till Wednesday morning. On Wednesday, the hearing of the case was resumed, when defendant's case was gone into. Messrs James, Thomas and Robert Hay gave evidence to the effect that on March 21, there were fires on Pitcaithly's and Wilson's sections. August Wilson deposed that on the 21st March he lit fires on his section in different directions. Noticed a small fire on Hay's reserve. Thomas \lclntosh, Henry Piper and F. W. Williams gave evidence as to the amount of damage done. His Honor said he was of opinion that plaintiffs were not entitled to recover any thing on necount of the fence between Kay's and Goodwin's, as it appeared that the damage was owing to Wilson's fire. With regard to the other damages, he thought that the estimate of the independnnt witnesses called by defendant was the most trustworthy. He would give judgment for the plaintiffs for £33 and costs. The Court then adjourned.