Magistrate's Court.

Manawatu Herald, Volume XXVII, Issue 3547, 15 July 1905, Page 2

Magistrate's Court.

FOXTON THURSDAY, July 13,1905

Mr A. D. Thomson, S.M., held a sitting of the Court on Thursday. t f NOEFEND£D CASES.

Judgment was «nte»' e< t for plaintiff* in the following cases >— P. Hennessy and Ccb Yt W. Gi Edwards, £2 13s; Cnmmerimlci Spring v. Frank Spiers, £4 and posts; Walter Baker v. Samuel Dawsorfy A®

!nd costs ; same v. Wm, Anders/ 111 1

£3 and costs; same v. W, Wallbutton/ £3 and cost; same v. Arthur Wail-' button, £ 1 and Costs; W. Andrason and Co. v. Chas. Phillips, £4 6s 6d and! costs ; Shadbolt and Howan v. Henry McKennie; £2 14s xrd and costs; Mary Ann Gibson v. Fred Robinson* £5 5s and costs; Thos. Henderson v# Henry McKennie, £g 10s and cos|s# Art hut 1 McKegney v,. Wm. W. Youtig# £g 12s and cods; Witt. RoberstOn v# Wm. W. Young, £g 123 afld costs. A FENCING CASE. This was a case in which Fr SJ Easton, for whom Mr Harden ap« oearad, sued Sidney Easton, repre* seated by Mr H. G ( Moore, for pai| cost ot erection of U boundary fence. Mr Moore submitted that the court had no jurisdiction in this case as tbero had been no proper notice given,' by the plaintiffs to the defendant. Mr Harden pointed out that there bad been an agreement between the parties to erect a certain fence, but Mr Moor# contended that even in such case it was necessary that statutory notice as required bv ’the? fencing Act should have been givea first. Mr Harden said the plaintiff was not proceeding under the Fencing Act; he was simply suing on a contractu He had agreed to do certain work, loff which defendant had agreed tef pay half the cost. Mr Thom on considered he had jurisdiction, hut said he would reserve bis decision for argument. Evidence could be taken, however, to save time* . Mr Harden called Frederick S. Easton, who stated! that he and defendant were neigh* hours. There was an old fence be* tween their properties, through which stock were continually straying. _ He spoke to defendant two or three times about it, and then they came to a verbd agreement to put up a nC# fence, witnessing undertaking to fix it up and his brother promising to pay his “whack.” The actual cost of th# fencing wa.s £j ras gd, and witness did not claim for any time ot his owa or for carting material. , Mr Moore i ed witnessoo the c-.'Sl of various materials used* The work was done during the month of March.

To the Court: Defendant had seen the fencer at work, and on one occa* sion sent a boy to help him by hold* ing battens. The price was a reasonable o'ie, as extra work was entailed through having to pud down some df the old fence and splice in fresh wiffe in places. At this point the case was adjourned to August 10th.

A HOItSE CASE, The ca=e Lennox v. Johnston, acl* journed from last court day, was re* sunied. Mr Harden appeared for the plaintift and Mr Moore for defendant. Charles Smith, who was employed casually by Johnston, stated he re* membered seeing Lennox’s horse brought in. and taken out to the paddock by Marsh, the stableman. Next morning witness got up and attended to the coach horses. These were in a different paddock to that in which Lennox’s horse was put. There was one other horse.—a coach horse-—in the paddock besides Lennox’s, and when witness went across at about fi.3o or 7 a.tn. he found the coach horse, and nothing else. Witness valued the horse at £6 or £7. The horse would not go away of its own accord.

Cross-examined by Mr Harden: Marsh took the horse out toward the paddock across the road. To the Bench : Witness did not see the pony in the paddock, as he did not go past 1 it; he slept that night in the stable room. The coach horses th-it night were put in the paddock behind the stable, and next morning the outward coach horses came from the some paddock. Charles F. Johnston, the defendant stable proprietor, stated he drove the coach to Levin on the morning Lennox’s horse disappeared. He did not see the horse about the stable.

His Worship said he was not satisfied that any negligence had been, shown, and judgment must go for defendant. No costs were allowed.

A FENCING CASE.. This was a case in which Frederick William Frankland (Mr K. Moore) sqed John A. Perreau (Mr Harden) for half cost of erection of a fence between adjoining properties of the parties. Mr Moore briefly stated his case, and then called, Walter Alzdorf, surveyor, Avho gave evidence as to having surveyed the land and marked off the boundary line as shown in the certificate of title, tor the erection of a fence. Frederick Martin, labourer, gay# evidence ot having erected the fence for Mr Frankland. Witness’s account for labour was £2 9s, including a piec* across Watson street. W’itness de> tailed materials used in (he construction ot the fence.

Frank Whibley, clerk for P. Hen* nessy and Co'., identified an account [produced] as that sent to the plaintiff for fencing materials, supplied. The prices were the usual ones charged, and the account had been paid. This was the plaintiffs case, and Mr Harden called. John Alfred Perreau, defendant,. who stated he signed the agreement [produced], and a tag attached there-; to. Provision was made for a right-of-way to property belonging to Rev. Duncan. An option was given to plaintiff to purchase an adjoining, section, though this was not subsequently completed. Witness did not ( consider he was liable at all in regard' to the fence, as Mr Frankland ;had | specially stated that he preferred to

•erect the fence himself 3 witness i simp)v ■specified thatitslUmlci be suf ficient to satisfy -hiifo Witness con's'idered the aftfuimt charged for material and labour was excessive. John 'Oimemn, auctioneer, gave •evidence of having inspected the fence ■which formed the subject of the action, considered three days sufficient titne to do the whole of the labour of erection.

Mr Harden contended that in the terms of the agreement the defendant should not he called ih,p6A to pay for the fence.

Mr Moore sftbMled that whatever may have hc#u the intention of the parties the words of the agreement distinctly provided that the tencing should be carried out jointly; otherwist; the plaintiff .would not have Served a notice of intention to fence on the defendant, and if he had in such case the latter would immediately have disclaimed liability, which, however, he had not done until now this action was brought.

His Worship said he could only construe the terms of the agreeittftht including conditions in an indorsement thereto as applying only to the second piece of land, and therefore plaintiff was entitled to halt the cost of erection of the fence, being £4 4s fid, and court cos's 13s, solicitors’s fee £1 6s, and witness’s expenses xos.

WANKLYN V, TAX’LOR. This was a. claim for balance of board due tuid one week’s board in lieu of-notice, Mr R. Moorfe, who repressed the plaintiff, Said the amount was small, but th® action was brought to establish at principle which wa§ of some importance. Plaintiff was a boardinghouse keeper and defendant a Commercial traveller; The latter was living at the boardinghouse silt n weekly sum, and went away for swine days. On returning he Stayed 'again at the house and thbtt left, paying half a week and not for the days he was absent. He then: left, and plaintiff claimed the amount of a week’s bwi’d in lieu of notice. Mr Moon* quoted authorities on this point. Hec/alled, .Agues Wanklyn, who detailed the feircuinstances under which defendant boarded at her house. He came at *OS a week, and witness expected him <to ]»y that, although he was away .for a day or two/ That’ was the usual Tttle. ,

Cross-examined by Mr Reade (for defendant): When defendant paid witness on June 23rd he said it “ squared them np to last sight,” and' shte' asked if he deducted for time he was away. He replied “ yes,” aiad she said she could not agree to that, alshs kept what money he hadgiven her. Witness provided good accommodation, and: fifes whenever required* When defendant was leaving after paying witness 10s for the half Week, she told him he would have tfo pay 4s fid per day for broken time. He said ho had paid her up in full, but witness said she did not agree that this was so. Mr Reade stated that his client’s reason for leaving the house was lack ot accommodation.

The defendant, Frederick Taylor, gave evidence of having stayed at Mrs Wanklyn’s boardinghouse, the terms being £i per week. On June 23rd witness tendered her £\ in payment of board to date. She said “ I suppose that’s in consideration of the two days you were away.” Wit ness said “ yes,” and nothing further passed between them, Mrs Wanklyn retaining the money without demur. Witness spoke of lack of fire which caused a good deal oi discomfort, and said he eventually was practically frozen out and had to leave in self-defence.

To Mr Moore; Witness did not think he was hard to satisfy. He had in the last eight years been travelling and had stayed at many places and never ha’d trouble before. He considered he had paid very handsomely for the accommodation he had had in this case.

William Kennedy, labourer, who lived at the boardinghouse, was called and did not remember Whether there was fire provided during the time under review, except on the Sunday, when he saw there was one.

His Worship held that when a parson took board and lodgings tor a weekly payment he was entitled to ba treated as a 'weekly tenant, and entitled to give and receive notice of termination of such lease or tenancy. In this case defendant was not entitled to deduct for the time he was away. Judgment would therefore be for plaintiff for 30s and costs. F. S. EASTON V. F. WHIBLEY. This was an action for £$ damages sustained owing to the defendant trespassing on the 14th June on !; the Moiijoa Estate and shooting pnkakfs. Mr Warded appeared tor the plaintiff and Mr Reads for the defendant. The former deposed that on that day be t overtook the defendant, who was accompanied by Bernard Spelman, jnr., on a public road, Both badguns, hut no dogs. He asked defen. d»nt where he wa* going, and received a vague reply. Witness cautioned him «ot,to shoot anything on the’ estate, • and kept behind them ' for about a f quarter of a mile till they arrived at a i cross road. A pukaki got up and the j defendant fired both barrels and it: dropped. Witness saw him fire sit 1 another pukaki which was sitting j amongst some fescue, hut could not say whether it was killed or not. The reason for action was not for heavy damages but to put a stop to the indiscriminate tresnassing that had been going on lately to the detrinient of his company’s stock. He left them afterwards, going on to his mill, and up till Sunset saw them firing, but at What he could not say. Cross-examined, witness was positive that Whihley shot one pukaki. and fired at the other, even after his caution. If anything was sworn to the contrary it was not true. For' the defence the defendant swore that he did not fire at a pukaki all the afternoon. Whilst Mr Easton was giving his horse a drink about 20 yards away, he fired at a lark sitting on the ground and missed it. Afterwards he and Spelman amused themselves by shooting at the empty cartridge cases. Coming home they

put up some pukakis but did not fire at them. They had intended to go to Paiaka, but owing to so much water being on the road they turned back. B. Spelrnan, jun., corroborated defendant’s evidence, and further added that he had a few shots himself; not at pukaki, but at a log and somfe cow clung. Both.wjtueMeS 'toeife cross-examined at length by Mr Harden, but without any contradiction of the evidence given.

His Worship, in giving judgment, said that except for some immaterial discrepancies in defendants' evidence, he was satisfied that they had ttdt concocted a Story-. Both corroborated the shooting of the lark anti under the Circumstances he Would nonsuit the plaintiff; WffhfioSts 2s, witness expenses 4s, abd solicitor’s fee ars. HALL V. HAMER. This was an applibUlibn by Mr R. Moore, fpr defendant, for a new bearing and stay of execution. An affidavit was filed setting forth that judgment had been given at Levin by default owing to the defendant being unable through illness to attend the hearing-, and intimating the grounds of the proposed dufenCS; The application was granted.