District Court of Marlborough.

Marlborough Express, Volume III, Issue 133, 29 August 1868, Page 3

District Court of Marlborough.

CIVIL SITTINGS. PICTON.—TUESDAY, AUGUST 25th, 1838. [Before His Honor Judge Ward.] HELLISH V. OWEN AND KBOLI. This case was before the Court last February, when the plaintiff, as Sheriff of the Province of Marlborough, sued the defendants for £25 14s. for poundage and expenses for arresting one Pearce, under a writ of capias ad respondendum (to hold defendant to bail), to plead to an action brought by the defendants against Pearce. Mr. Conolly appeared as counsel for the plaintiff, and Mr. Nelson as counsel for the defendants. The latter submitted that no poundage was provided for the Sheriff unless the body was taken in execution, which he contended was nob so, when arrested under acapaisadrespondandura, and that he only saw that plaintiff was entitled to recover a fee of 10s. and expenses, which he had lodged into Court. His Honor now • delivered judgment for the plaintiff for the amount paid into Court, £4 25., inasmuch as the execution of this writ was not, he thought, taking the defendant’s body in execution, but holding him to bail; the Legislature had made no provisions for this, he would only give j udgment for plaintiff' for amount paid into Court, each party to pay their own costs. MESSRS. KEENE V. MESSRS. SULLEN-.

This was an actioti which stood over adjourned from the last sittings in “June. Mr. Gouolly, as counsel for the plaintiff stated their case. It was an action brought to recover the sum. of £lls Bs., for two years interest on the cost of erecting a dividing fence by the plaintiffs, between their run and that of the defendants, at Kaikouras, and o£ which the defendants had made beneficial use. Mr. Nelson stated that he had been instructed to appear for the defendants through Messrs. Izard and i’harazyn, bub his brief had .nob come to hand when he left Blenheisn, owing to the Falcon being wind-bound 'at Wellington; r, - V His Honor thought Mr. Nelson should state

tie defence ho, prepared to set up, as no defers had been tiled. Mr. Conolly objected to Mr. Nelson appearing, as the defence had not be,n tiled. . Mr. Nelson submitted he had a right to appear, as he was instructed by one of tne defendants who sat beside him, and although till this moment he was unaware of the nature of defence, he was willing to go on His Honor ruled that the defendants had a right to appear and instruct counsel. Mr. Nelson then stated the defence he intended to set up, wheu Mr. E. G. T. Gooch, examined by Mr. Conolly, deposed :—1 am the manager for plaintiffs at Swyncombe The plaintiffs run and that of the defendants join. The river Kahautura divides them, which is not a sufficient protection against the sheep on either run trespassing on the other A fence was erected under my inspection, and completed in December, 1865. It is a good fence (seven wires) with intermediate wooden posts. The standards were nine feet apart ; some wire was No. 2, and some No. 6. The fence is 4ft. Gin. high. The plan I produce is a tracing made by me. I have laid down on the plan the position of the fencing, and the length of it. Mr. Nelson objected to the plan being produced, and the Court ruled accordingly. Examination continued : I have measured the length of the fence 1 cannot say exactly the length. It cost about £l2O per mile. It is more than four miles long There are 80 chains in a mile 1 have the exact distance in my ledger, but it is not here. I cannot be certain of the exact distance. His Honor asked Mr. Conolly if he had any other witness to prove the distance. Mr. Conolly ; No, your Honor. Mr. Nelson then applied for a non-suit. Mr Conolly said he could not go on with the case, as he sued for interest on six miles of fencing. The case had been adjourned from June last, then Mr. Gooch could have from his memory proved the length, but now he relied on the map to refresh his memory, and he could not without it say the exact length ; as we have no other witness, I must submit to a non-suit. The plaintiff was accordingly non-suited, and ordered to pay defendants’ costs, as settled by his Honor. ROBINSON BROS. V. SUPERINTENDENT OF MARLBOROUGH. Mr. Conolly, for the plaintiffs, said he had to make a complaint to the Court, of the negligence of the bailiff iu v\ ellington in not serving the summons which had been sent to him in sufficient time. After keeping it several days, Mr Brown sent a telegram to say he thought the Superintendent, as a member of the General Assembly, was privileged. He (Mr. Conolly) had replied to the effect that he was not; and after this, the bailiff was unable to get the summons served in proper time. He thought the conduct of the officer was most reprehensible ; in consequence, his clients would lose all the costs they had been put to in instituting the action, besides being now obliged to bring the case before the Supremo Court, on account of the abolition of the District Court, the cost of which iu any event would be considerable ; whereas, before this Court, they could have the case tried at inconsiderable expense. His Honor thought Mr. Connolly had much to complain of, and the conduct of the bailiff was quite beside his province. He would now make an order that all costs made to this Court be refunded. Mr. Conolly said that would be but a very small proportion of the costs incurred, besides the hardship of being forced into the Supreme Court. His Honor regretted that he could do no more in the matter, Mr. Nelson had instructions to defend the action and would have consented to waive the objection about the service, but Mr. Conolly, relying on the service being bad, was not prepared with his clients to go on with the case.