SUPREME COURT

Globe, Volume VIII, Issue 1043, 29 October 1877, Page 3

SUPREME COURT

CIVIL SITTINGS. Monday, Ootobbe 29. [Before his Honor Mr Justice Johnston.] The civil sittings of the Supreme Court reopened at 10 a.m. WASCOB Y SCARBOROUGH AND OTHERS. _ In this action George Wascoe, claiming in right of his wife Sarah Wascoe, was plaintiif, and George Scarborough and C. S. Saxon defendants. It was brought to recover the sum of £SOO for use and occupation of a certain portion of property in Akaroa by way of compensation for such occupation from Ist January, 1871, to Ist January, 1877. It appeared from the declaration that one Charles L. Haylock was possessed of certain property in Akaroa which he devised by will to his wife, Sarah Haylock. Shortly after the execution of the will the testator died, not having revoked or altered the will. A portion of the property of the testator adjoining that devised to Mrs Haylock was sold by a son of the teslator to the defendants in the present action. Mrs Haylock afterwards married the present plaintiff, Wascoe. The defendants erected their brewery, &c., upon the land purchased by them, and the plaintiff alleged that they had by so doing encroached upon the land of the plaintiff. Application was made to them at various times for compensation for such encroachment, but payment was always refused. The present action was therefore brought to recover the amount computed as compensation for~ the use and occupation of the piece of land said to be encroached upon for six years, viz., from January Ist, 1871, to January Ist, 1877. Mr W. W. Cobb was chosen foreman of the special jury. Mr Joynt appeared for the plaintiff; Mr Garrick for the defendants. The following were the issues submitted to the jury: 1. Did Charles Layden Haylock, in the declaration mentioned by his last will and testament in writing, duly executed and bearing date on or about the 28th day of September, 1860, give and devise unto his wife, Sarah Haylock, a certain messuage or dwel-ling-house situate in Akaroa, in the said district, with the garden attached thereto, for and during the term of her natural life F 2. Is the said will in the possession of the plaintiff ? 3. Did the said Charles Layden Haylock, shortly after the execution of his said will, depart this life without having altered or re voked the same, and was the said will duly proved in the Supreme Court of New Zealand, at Christchurch, on or about the 19th of June, 1861 ? 4. Did the plaintiff, after the death of the said Charles Layden Haylock and prior to the Ist day of January, 1871, intermarry with the said Sarah Haylock, and is the said Sarah Haylock, now Sarah Wascoe, still living Y 5. Have the defendants, from the said Ist day of January, 1871, up to and until the time of the commencement of this action, with the permission of the plaintiff and his wife, used and occupied a parcel of land, part of rural section No. 514, together with certain buildings thereon, and is such parcel of land the parcel of land so devised by the said Charles Layden Haylock to his said wife as aforesaid ? 6. Is the said parcel of land more particularly delineated on the plan thereof drawn on *he declaration and therein coloured pink ? 7. Have the defendants paid to the plaintiff or to his said wife, the said Sarah Wascoe, compensation for the use and occupation by by them of the said parcel of land and buildings ? 8. Have the defendants refused and do they still refuse to pay the same ? 9. What sum of money, if any, is the plaintiff entitled to recover from the defendants in this a<;tion ? Mr Joynt, having briefly opened the case for the plaintiff, proceeded to call evidence. A large quantity of evidence, mainly with reference to the boundaries of the section referred to, was taken. At the conclusion of the evidence, His Honor directed the jury that the action had been wrongly brought. It should have been one for trespass instead of for use>nd ■occupation. The jjory then returned a verdict on the issues as follows : Nos. 1 ,2, and ii, admitted. No. 4, yes. No. 5, no special permission, but the holder was not interfered with. No. 6, yes. No. 7, No. No. 8, yes. No. 9, not in this action.