SUPREME COURT

New Zealand Times, Volume XXXVII, Issue 8361, 22 February 1913, Page 11

SUPREME COURT

LETTERS PATENT. The bearing of the case of Frederick John Northcott v. Henry Hughes, Ltd., patent agents, a claim tor i-ooU damages as the result of alleged negligence regarding an application for letters patent on a milking appliance, was continued yesterday before nie Honor Mr Justice Chapman and a special jury. Mr A. W. Blair appeared for plaintiff, and Mr T. Young for defendants. The issues put to the jury were (the answers being given in parentheses): (1) Were the defendants specially instructed to proceed under the International Convention ? —(No.) (2) Was it left to them to exercise their judgment?—(Yes.) (3) Did they exercise their judgment negligently ?—(No.) (4) If there was any heghgenco on the part of the defendants did the plaintiff thereby suffer any damage in consequence?—(No.) . (6) Would the details of the invention published in the abstract in the New Zealand. ‘ c Gazette d’ of J uno Ist, 1911, if seen by skilled workmen well versed in the milking machine business be sufficient to enable them to understand the invention and construct the machine ?—(No.) (6) At. what amount, if any, do yon assess the damages, if any ?—(Nil.) Judgment was entered for defendants, with costs on the highest scale, costs of commission and second day's allowance for the special jury. CHANGE OF VENUE. His Honor gave judgment in the case of the C. A. Edgarton Manufacturing Company v. Macky, Logan and Co., an application for a change of venue to Auckland. The action arose from the sale of suspenders under a trade-mark, and Mr Blair, on behalf of defendants, contended that the case should be heard in Auckland, as defendants’ head office was there and a great number of the witnesses were in that city. Mr Young, for the plaintiffs, submitted that as the sale of the suspenders took place in' Wellington a largo quantity of the evidence must necessarily be obtained here. His Honor granted the application, and costs of the application were fired at £3 3s, and made costs in the action. GOODS SUPPLIED. In the case of William Nicholson, accountant, of Wellington, v. David Taylor, butcher, of Wadestown, a claim for £4lB 16s 2d. for goods supplied, his Honor allowed the name of the plaintiff to be amended, and gave judgment for him, with costs according to scale. However, in view of the amendment, the defendant was allowed £2 2s coists, to be set off against the claim. Mr Von Haast appeared for plaintiff and Mr Wilford for defendant, Mr P. W. Jackson, who represented Mr Wilford, yesterday applied for leave to appeal His Honor said he could appeal by giving security, and leave was not required. ENCROACHMENT OF TREES. His Honor Mr Justice Chapman gave judgment in the case of John Rose and Isabella Rose v. the Equity Boot Company, Ltd., and William Hannafin, an action for damages as the result of trees encroaching on their property and roots blocking their drains. Plaintiffs also applied for an injunction to have the nuisance removed. His Honor thought that so far as the branches of the trees were concerned the plaintiffs had made out an actionable wrong. They extended over the honse, brushed against it and disturbed the plaintiffs in their sleep, besides probably contributing to the leaves which blocked the down-pipes on the honse. It was true that the defendants had no right to go upon the plaintiffs’ land at will to cut the branches, but if they had asked leave and that had been refused the refusal would have shown acquiescence on the plaintiffs’ part. ■As Mr Dunn complained of the nuisance as early as June 28th, more than three months before the writ was issued, that of itself was an invitation, to remedy the evil. Reverting to the subject of the roots, he could find no precedent for such an action as this, but he did find Wills J. in Smith v. Giddy saying, “I have a strong feeling that it is highly desirable not to establish new causes of action if it can possibly be avoided.” Roots were not like brandies. They extend everywhere uncontrolled and usually unseen. He did not think, however, that the question really arose. The large root which did the main damage by heaving up the branch drain and breaking a pipe was as thick as a man’s arm, and must have existed a number of years before either of these parties came into possession of their respective properties. Prom it sprang a root as thick as a lead pencil, which must also have been some years old. This had got in at the break and extended a yard or more along the drain, spreading fine rootlets from its sides and end. The most that could be said was that to an unascerkainable degree these rootlets had ’grown during defendants’ occupation. That did not assist the plaintiff, as he was satisfied that the real mischief was done at an earlier date. It was true that for some months after plaintiffs’ occupation there had been no breakdown of the drainage, but a witness said that the mass of rootlets was choked with sewage matter, and it was probably to this condition rather than any new growth that the stoppage was immediately attributable. On the part of the case respecting overhanging trees he would award £5 damages. As to the costs, he could only allow them on the scale allowed in the Magistrate’s Court. He would allow the expenses of witnesses, save those exclusively applicable to the question as to the drain, and disbursements save as to those witnesses. These expenses would be fixed by the Registrar. Mr A. Dnnn appeared for the plain, tiffs, and Mr C. P. Skerrett, K.C. (with him Mr T. 0. A. Hislop) for the defendants. nr.ATM UNDER A MORTGAGE. The case of John Bateman Harcourt and Charles Stanton Harcourt v. Elizabeth Green, a claim for £242 2s, alleged to be due under a mortgage, was set down for hearing yesterday. However, owing to another case occupying the attention of the court, and to the fact that his Honor Mr Justice Chapman leaves for Nelson and Blenheim to-day, the case was set down for hearing on Tuesday before his Honor Mr Justice Sim.