SUPREME COURT.

Globe, Volume I, Issue 44, 21 July 1874, Page 2

SUPREME COURT.

SITTINGS AT NISI PRIUS.

Monday, July 20. (Before his Honor Mr Justice Gresson and a Special Jury.) The Nisi Prius sittings of the Court opened yesterday at 11 a.m. RHODES AND OTHERS V ELLIS. Counsel for the plaintiff, Mr Leonard Harper, with him Mr George Harper. Counsel for the defendant, Mr Garrick, with him Mr Cowlishaw.

The following gentlemen were sworn as the Special Jury : Messrs M. P. Stoddart (foreman), J. Brabazon, H. Hawkins, J. Townsend, J. T. Matson, W. D. Carruthers, E. H. Ensor, B. M. Templar, W. Langdown, J. Beaumont, E. Pavitt and C. A. Pritchard.

The action was brought by Robert Heaton Rhodes and Robert Wilkin, trading as sheepfarmers, under the firm of Rhodes and Wilkin, and holding a certain station in the Oxford district known as the Carlton station, against Thomas Ellis, residing at Ashley Gorge station, contiguous to the said Carlton station. The declaration set out that on or about the 29th January, 1874, the defendant, by his servant, lighted a fire upon his premises, which file extended through the adjoining farms to the run of the plaintiffs, destroying grass, fences, and sheep; wherefore the plaintiffs sought to recover from the said defendant the sum of £IOOO as damages. The following were the ISSUES.

1. Were the plaintiffs at the time of the alleged grievances in the declaration mentioned lawfully possessed of the close and premises therein mentioned ? 2. Did the defendant by himself or his servant negligently wrongfully improperly light and keep lighted in and upon his close in the declaration mentioned certain fires at the times and in the manner in the declaration mentioned ?

3. Did the said fire by reason of its being so negligently lighted and kept as aforesaid, spread and extend to the close of the plaintiff's and burn, consume and destroy the grass, post and rail fences, live fences, wire fences, sheep yards, stockyards, gates, gate posts, and certain posts and rails, and also certain sheep and lambs then possessed by the plaintiff and being thereon ? 4. Are the plaintiffs entitled to any and what sum by way of damages, by reason of the alleged injuries occasioned by the said fire, as in the declaration mentioned? Mr George Harper opened the case by reading the declaration and pleadings. Mr L. Harper then shortly stated the case, and evidence was led to prove the allegations in the declaration. The first witness was Mr Robert Wilkin, who deposed to his being a partner in the firm of Rhodes and Wiikin the plaintiffs, and also gave evidence as to the situation of the Carlton Run, which it was alleged was injured by the five stated to have been lighted on the defendant's run. The deed of the partnership of the firm of Rhodes Bros and Wilkin was then put in. Mr Harper then put in license to depasture, whieh was objected to by Mr Garrick, as not having been set out in the declaration under Rule 76 of the Supreme Court. After a lengthy argument between counsel, His Honor allowed the objection.

Mr Wilkin then proceeded to give evidence as to the Carlton estate being a sheepgr.iziug run, as to the nature aud extent of the fences, and subdivisions of the estate, and generally |as to the arrangement of the various paddocks. The witness then went on to describe the state of the run as seen by him in April last, when he visited it, when he noticed that a number of the fences, &c, had been burnt, the grass destroyed, and also that a number of sheep had been burnt. At his visit before the one in April all the fences, &c, were in good order. So soon as information reached town of the fire, application was made by the witness to the Commissioner of Police to hold an enquiry. Valuations were made by Mr St George Ryder, manager of the station, and by Mr J. T. Ford. Application was then made, through the solicitor of the firm, to the defendant for compensation, aud the present action was the result.

On cro'S-exaraiuation by Mr Garrick, the witness stated that the fire had not been a great improvement to the herbage.

At thig:stage the Court adjourned for half an hour.

On resuming. His Honor said he had more fully considered the point raised by Mr Garrick against the plaintiff proving his freehold title to the land, and had come to the conclusion that he should be allowed to do so. The depasturing license and deeds as to the freehold property would therefore be admissible as evidence. After the evidence of Mr Davis and Mr Blanchard as to survey made of the run had been taken.

Mr Wilkin was re-examined, and put in deeds of freehold property and licenses to occupy, j-.ining part of the partnership's property of Rhodes and Wilkin. Mr Garrett contended that this evidence was inadraissable, inasmuch as it went to prove a larger interest than was affirmed in the declaration, which was simply a possessory interest, and requested that his Honor would take a note of his objection. Mr Ryder, manager for Rhodes and Wilkin, was the next witness, and gave evidence as to the relative positions of the runs of the plaintiffs and defendant. In February he saw a fire in Rhodes and Wilkin's ram paddock. On his way to the fire the witness met the defendant's manager, and asked him if he knew how the fire originated. At this time the fire threatened the station buildings, and he returned to save them, and also to get the sheep out of the reach of the fire, but the fire passed through the paddock in which the sheep were before he could reach them, and several—l69—were burned. The witness then proceed to give evidence as to the origin of the fire on the run of the defendant on January 31st. Between the 31st and the 10th February he noticed fires on Mr Stubbs' land, and also on Mr Ellis's. The witness then proceeded t« detail the circumstances attendant upon the fire on the 10th February, and its coming upon the Carlton run. It became necessary to remove the sheep on the run to Kaiapoi in consequence of the feed and fences being destroyed by reason of the fire. The witness then gave his valuation of the damage done by the fire to the fences. &c, in the various portions of the estate as follows :—Woolshed, paddock, fencing, &c, £24 14s 9d ; sheepyards, £2 178 2d ; stockyards, £1 14s 6d : damage to rails and posts, cow paddock, £1 19s 9d ; fencing destroyed and gorse burnt; cattle paddock, £8 Is 7|d ; home paddock, £lOl 7« 6d ; fencing, gates, and, gorse destroyed ; road paddock, £22 18s 9d ; southern fence of road paddock, £53 4s ; ram paddock, £3 3s lOd ; Stubbs' boundary fence, £25 68 : Widdowson's, £ll 3s 6d ; do fronting Oxford road, £B6 10s ; Bennett's paddock, £lOl Is 4d. In addition there was 16s lOd for rails destroyed, £42 5s for 169 sheep destroyed, and £lO 5s for 41 sheep dying from result of fire. The witness then detailed the facts connected with the inquest held on the fire, and also gave evidence as to the weather during the month of January being very dry.

At the close of the. examination of this witness the Court adjourned at 4 p.m. till 10 a.m. this morning.