LAW REPORTS.

Dominion, Volume 2, Issue 449, 6 March 1909, Page 14

LAW REPORTS.

SUPREME COURT. DAMAGES FOR WRONGFUL EXCAVATION. DIRECTIONS TO THE ARBITBATORS. With resatd to tho case of Mrs. W. H. Field v. Allen Maguire, a claim for £1500 damages for wrongful oxcavation in the bank at tho rear of tho Commercial Hotel, Mr. Justice Cooper gave his directions yesterday as to tho manner in which tho arbitratorsMr. Holdsworth for plaintiff, and Mr. Ames for defendant —should assess tho quantum of ■damages. His Honour held, inter alia, that the arbitrators must first find as far as possible the condition of plaintiff's land immediately prior to tho commencement of defendant's operations, and then what physical injury has been caused by defendant's operations up to January 30, 1909, the date of tho commencement of tho action.. They must then 'ascertain what depreciation in value of the property as a wholo had been caused by the physical damage , consequent upon defendant's operations, and that amount was tho measure of damages. They were entitled to consider how far tho injury which had been k> caused had disfigured the property, and thereby depreciated tho valuo of the property as a residential property. But they must not take into consideration the possiboity_ or probability «f any future damage to plaintiff's property which might arise from defendants past operations. If plaintiff asked the arbitrators to increase the amount of depreeia-. tion in value on the ■ground that a rouse could, but for the-injnry,,have been erected upon the piece of land actually physically injured, the arbitrators must ascertain whether, apart from any question of the city by-laws or the statnto law of the Dominion, that could" have been done with reasonable safety, '. upon lie land, also whether a house could i still be' safely'erected. In determining all i these matters, the arbitrators were to take iinto consideration the 1903 crack, and any slips which had resulted therefrom up to the dato of the commencement of defendant s operations. If they found that a' house could 'have been erected with reasonable safety up ! to the commencement' of defendant's opera-, ' tions, and that a house c'6nld'not now be so erected,:, then thoy were to assess damages i (1) on the footing that' no further house could be erected on the seaward side of the section, and (2) excluding that element, and then thoy were to state a case for tho .opinion of the Court upon the question whether if the defendant's operations had not ini jured the land another house could have been ; legally erected. The arbitrators were also not ' entitled to take into consideration any argument that tho erection of defendant's present wall might secure the plaintiff against iuture damage.. These directions were also to be observed by the umpire appointed by the arbitrators. '', V '■'':: .!'

. .-•■ IN CHAMBERS,. ~,.• t A sitting in Chambers was held by Mr. Justice Denniston yesterday .i ; - Probate of the wills of the following de- • ceased persons was granted:—Jane' Priest, .Ekotahuna; John Menzie, farmer, Colyton; Mary Ann Jones, widow, Wellington; John tSulliran,' hotelkeepor, Petone: • Cecilia TicoV hurst, widow, .Wellington: John ..Young, la-. 'bourer, Martinborough.; Minnie Ethel Symons, widow, Wellington; Mark Exten; settler, 'Alicetown; Charles Edwin Grace •Bird, commercial traveller, Wellington: Lars Nielson, 1 sailor, Auckland; Susan.Northover, .widow, Marten; Kcnyon Francis Travers, clerk, Wellington,- -Mary Anne Redpath, widow, Woodville; Robert'EldonGrinlinton, draper and cabinetmaker, Woodville; Robert Weill, schoolmaster, Opoukama: Margaret M'lteegan, widow. Wellington; Alfred Price, wicker-worker, Christchurchi ' : ■-.■'■ , ~ ,v .•' Letters of administration in respect of the estates -"of the following deceased,,,persons, wero granted:—Margaret Robertson)'Wo'dd-' ville (re^grant); Clarence Harrington Halo, commercial traveller, Wellington; Wm. Higgins Henry, draper, Wellington; Henry Warren, clerk, Waimarama; Henry.Bennett, far-' mer, Styx: Maurice'-'Ready, ex-police ;sergeant, Wellington; Jakqy, Matelyan, gumdigger, ■■Kauaraiiga; Alex.' , M'Lean, 'builder, Wellington. . . ■ . ' '"'.-t '• , An order wm made in the action or Iris . Ralston against Henry and-Aimie Butler/ of Dannevirko, amending the writ so as ,to make Palmerstori North instead of Napier the place Tor filing the statement of defence and hearing of the action. Mr. Toogood appeared in. support of the application. With respect to'the matter of -Thomas Matthew Clark, of Vivian Street, mercer, a debtor, his Honour, on the application of Mr.' Lynch, who represented Abbott, Oram ; and Co., mado an order that personal service of petition of adjudication be dispensed with and service by advertisement be substituted. The ground of the application was ; that. the whereabouts of debtor were unknown. ■ _ - A motion to set down the case of Grimmet v. Knight was then dealt with. tiff is a sub-contractor, and .defendant the contractor for the extensions to tho Newtown Library. The claim is for £400 for work done. .Mr. .Levi, for plaintiff, moved that the case be set down as an ordinary action. Mr., Beere, who represented the defendant, did not oppose the application. His Honour acceded to the request. An interesting question of,procedure,arose, in connection with the case of Harold J. E. Dutton v. Annie Breon, a claim for £351, balance of contract moneys alleged to bo duo on the erection, of a house. It appears that the Wages Protection and Contractors' Liens Act, 1908, provided a summary method for dealing with matters in dispute in Cham-, bera. No provision is made,. however ICv as,. to tho'course to be adopted in tho eventfof "the suit being contested. Mr. Dunn, for. plaintiff, moved for'judgment, buf'Mr. Beerdi on behalf of defendant, opposed on the that tho action'was defended. 1 His Hdnoiir gaid he would look into the point, which seemed to bo a new one, with a view of determining which was the best method to adopt. It was clear that it could not be properly disposed of on affidavit, and that oral evidence would havo to bo taken, SALE OF.A FARM PROPERTY. ■' When the partly-heard case'.-of Alfred Bengo v. Henry' Pearson was again called on before Mr. Justice Cooper yesterday, it was announced that'a settlement of the matters in dispute had been arrived at. This was an action by_ plaintiff to have-a contract for tho'sale of his'farm at Mungaroa to defendant specifically performed. Tho property was purchased on behalf of defendant, who resides at Nottinghom, England, by H. P. Rawson, dentist, Wellington. Defendant, who had entered into possession of tho property* had, it was alleged, refused' to complete the contract. In addition to asking that the/contract might be decreed to ' bo specifically performed, plaintiff ".• claimed £500 damages.: The defence to the action was that-plaintiff allegedly pointed out the wrong boundaries to defendant's agent, and ■ that when the '.survey camo to bo mado it was discovered that'there were only 80 acres of flat land out of a total area of 365 acres, ' instead of 165 acres, as had been represented to him. Defendant claimed a rebate by way of compensation in respect of the alleged shortage of area between tho flat land sold and tho flat land convoyed, and in addition £100 damages, or that if defendant be hold not entitled to. claim specific performance with compensation, that; plaintiff be orderqd te repay to defendant tho amount of the deposit and other moneys which ho had expended on tho property. Mr. Treadwoll, counsel for plaintiff stated that as a result of a conforenco with Mr. Bell, K.C., and Mr. Bunny, who represented defendant, tho action had been settled. He wished to point out that if the hearing had been resumed a' very considerable amount of evidence in rebuttal of the allegation that plaintiff had made fallacious representations with regard te the boundaries of the property would have been called. It would ; havo been shown conclusively, he_ added,' that plaintiff had made no misleading statements in the matter. , His Honour 'struck oirf the case. CLAIM'FOE COMMISSION. An action in which the plaintiff was Henry Adam Maokay,-. frozen meat and produce broker and land and estate agent, Wellington, and the defendant was Charles Freeling

Reeves, settler, Pohokura, near Stratford, was beard before Mr. Justice Cooper yestorMγ. 0. P. Skerrett, K.C. (with him Mr. S. A. Atkinson), appeared on behalf of tho Slaintiff and Mr. A. L, Hordinan for tho efondant.

According to tho statement of claim, defendant, on March 10, 1908, agreed to pay plaintiff £250 commission in tho event of him effecting an oxchango with ono Joseph Ij. F. Rqllet of defendant's farm for Rollct's Arcadia Hotel and certain other properties situated in Wellington bolonging to EoJloh Plaintiff alleged that ho duly effected tho exohango, and that Rollet paid dofendant £100 as a deposit on certain moneys payable as equality of oxehango. Defendant had, however, refused to pay him tho amount ''uo as commission. Defendant, by hjs statement of claim, set out that at tho time- of tho negotiations plaintiff was a clerk in the employ of H. h. Loighton, land agent. Claims had been received by him from plaintiff, Leighton, and Levien, and Shallcrass, but defendant denied that "anyone was entitled to commission. , Defendant' said that plaintiff introduced Rollet, to him with a view to effecting the exchange. Rollet told him that ono of his properties on Kent Torraco was subject to a ■mortgage- of £8000,' and that another property, the Arcadia Hotel, which was a profitable concern, was let on Icaso at £1500 per annum to a solveoit tenant, who desired to continue the lease. Belying on tho truth of the statements, defendant mado an offer in writing to Bollet for tho proposed oxchange. Defendant stated that his farm, which was situated at Pohokura, contain pd 3846 acres, and was subject to a mortgage of £7500 to the Public Trustee. In exchango for the property, Bollet was to givo him tho property in Kent Terrace, together with twelve dwellings r erected thereon, subject to a mortgage of £8000, and the Arcadia Hotel, subject to a; lease, to Patterson at a rental of £1500 per annnm, and.to a. mortgage of £10,500 to Jacob Joseph's estate, and all his (Rollet's) rights to purchaso an hotel license for £9000. Defendant alleged that subsequently ho found that the mortgage on the Kent Terrace property was to secure enly £2050, and that the hotel was not a paying concern. Rollet had then admitted his (defendant's) right ti> refuse to complete, and tho negotiations were terminated by the acceptance by Bollet of a refund of the £100 previously paid by him. After hearing evidence and argument, His Honour intimated that he would reserve judgment.' , ■ .