SUPREME COURT.

Globe, Volume I, Issue 47, 24 July 1874, Page 4

SUPREME COURT.

SITTINGS AT NISI PRIUS

Thursday, July 23

[Before his Honor Mr justice Grcsson and a Special Jury.] RHODES AND ANOTHER V ELLIS.

Counsel for plaintiff, Mr L. Harper, with him Mr Geo Harper. Counsel for defendant. Mr Garrick, with him Mr Cowlishaw.

The hearing of this case was resumed at 11 a.m.

Lewis Powell was the first witness, and gave evidence as to the character of the land, and also as to the fire on the 10th February. John Mullins deposed to having gone over a portion of the Carlton run on the afternoon of the fire to ascertain what damage had been done.

Robert Wilkin gave evidence as to a valuation made by Mr R. L. Higgins, but which, being inaccurate, had not been used. The witness was then examined and cross-ex-amined at some length respecting the connection of the late Mr McMurdo Thomson with Rhodes Bros and Wilkin. This closed the defendant’s case. Mr Garrick then addressed the jury. He first contended that there was no evidence to go to the jury that the defendant, either by himself or by his servant, lighted the fire causing the damage. Secondly, that the plaintiffs were only entitled to nominal damages, because the Waste Lands Regulations under which the plaintiffs’ license to occupy was issued gave no right to the soil or timber thereon, and therefore the plaintiffs could not sue for damages to the herbage. Further than this, from the proofs put in by the plaintiffs as title, it was proved that the present plaintiffs in this action had no title in the locus in quo of the action, either in the run held under license or by freehold. [Authorities cited—l Taunton, pp. 183,193; Main on Damages.] It was impossible under the conditions proved by the plaintiffs by their muniments of title for the jury to apportion the amount of damage to all those persons shown by the plaintiffs to be entitled, either as remainder men or by way of reversion, to recover damages against any intruder. All the plaintiffs had proved was a right of commonage, and they should have claimed for a disturbance of easement for the disturbance of their exclusive right of pasturage of their sheep (B & Q 285). He contended that he was, for reasons he had stated, entitled to his Honor’s direction to the jury that plaintiffs had no other claim but to nominal damages, and this because the jury were unable to apportion the damages to the several legal interests raised by the muniments of title put in by the plaintiffs. The moment the plaintiffs put these muniments of title, which showed other legal interests existing, and put them out of title, they were at once precluded from claiming substantial damages. Mr Garrick said that having now argued the legal points of the case, he proposed next day to address the jury on the evidence. The Court then adjourned till 11 a.m, this day.