DISTRICT COURT.

Patea Mail, Volume 1, Issue 24, 3 July 1875, Page 2

DISTRICT COURT.

Thursday, July 1. , (Before His Honour Judge Kenny.) Hawkins v Quinlivan. This was an action to recover the smn of £6O being amount of damages sustained by plaintiff through defendant’s entire colt wrongfully wandering at large, and not being in the lawful occupation of defendant. The said entire horse while wandering at large broke and entered into ; the close of the plaintiff, and covered the plaintiffs filly. The said filly at the time of the trespass being too young, to be covered with safety, and on 27th of October, 1874, in her foaling, resulting from wrongful covering, died. Mr Fitzberbe % supported by Mr merton, appeared for defendant. Tr Plaintiff conducted his own case. J. Patterson, farmer, residing at Carlyle, deposed that he exchanged a horse for a' mare with J. Quinlivan, equal in value to £SO. The mare was a full sister to the filly lost by plaintiff. He would not now take £BO for the same mare, because he valued her as a brood mare and for her working qualities. The mare has had two foals — the first was a chance one, and the second

by Baronet, a superior horse. Redding purchased the marc from plaintiff, and I bought her from J. Quinlivan. The mare, shortly after dropped a wee ioal. Witness, who has resided over two years in the district, stated that he knew of other chance foals.

Hawkins deposed—l so'd the full sister of the mare in dispute to Mr Redding, and have seen her repeatedly in the possesion offcast witness. I did not serve her with any horse before I sold her to Redding. If she was in foal, I dont know what horse could have served her. I offered the mare for sale by public auction, and I believe the reserve was £2O sr £25. His Honour remarked that it was a pity plainliff did not secure the services of a legal gentleman, although he was conducting his case wonderfully well for a nonprofeasional man. Plaintifl stated that he had been disappointed by a gentleman. Mr Fitzherbert, for the defence, contended that the plaintiff not having shown a legal cause of action, must submit to a nonsuit, on the following grounds, 1. That the Provincial Impounding Ordinance took away the common law remedy upon the trespass, and that the plaintiff had not proceeded according to the terms of the Ordinance.

2. That there was no statuary right of action. 3. That the action would not lie for a nuisance, no scienta on the part of the defendant having, been alleged, and the plaintiff’s evidence actually going to show that there was no scienta in fact. 4. That the plaintiff had been guilty of contributing negligence. Plaintiff argued that the 3rd section of the Impounding Ordinance had been repealed, and that the 13th clause provided for the present action. His Honour—You cannot avail yourself of this Ordinance, as the clause referred to provides that the action shall be heard before a Justice of the Peace in a summary manner.

Plaintiff—l cannot argue the legal points raised by counsel, and consequently must leave them in your Honour’s hands to decide. .

The Judge said that the real question was, whether a statutory duty was cast upon the owners of entire animals by the section in question, for a breach of which any person sustaining special damage might sue ? The leading case on the subject was Conch v Steel, and from it and the judgment in Stevens v Jeacocke, this principle might be deduced; that an action will not lie for the infringement of & right created by statute, where another (Specific remedy is provided by the same statute, or as remarked in Doe d. Bishop of Rochesterv Bridges, “where an act creates an obligation, and enforces the performance in a special manner,” it holds generally true “that performance cannot W enforced in any other manner.” Here a specific remedy is provided by the ■statute, namely, by impoundment, and, however inadequate that remedy might be, it did not appear that there was any other redress available. Moreover, it would seem that the statute did not vest in the Slaintiff any new right unknown to the ommon Law. The plaintiff must be nonsuited, with costs, amounting to £lB 7s, made up as follows ; Counsel’s fee, including travelling expenses, £ll lls ; five witnesses, including mileage, £4 Is ; five supoenaes, £1 15s; hearing and judging, £l. F. McGuire v McDonough. This was an action to recover the sum of £67 10s* for six months rent of Ketemarae Hotel, and nine acres of land leased by plaintiff to defendant. Mr Fitzherbcrt appeared for plaintiff, and Mr Hammerton for defendant. The defence set up was to the effect that plaintiff had agreed to lease the whole of the land, and to transfer the license or permit attached to the Eatemarae Hotel to defendant. Shortly after the defendant entering upon possession, the Licensing Commissioners refused the license, and consequently it was contended that the plaintiff had failed to fulfil his agreement. One acre of the land which the defendant alleged was included in the area leased to him, was let to Stewart and Jenkins.

, F. McGuire deposed that he had leased the building, known as Ketemarae Hotel to defendant, at the yearly rental of £135. He had walked over the land with defendant, and pointed out the boundaries of land on the plan, at the same time informing defendant that he reserved one acre for himself. To this defendant made no objection. It was only after the Commissioners refused the license that he objected to pay the rent. Agreement handed in, which went to show that plaintiff had only agreed to let the building iof the Ketemare Hotel and 9 acres of land, in consideration of defendant paying £33 6s per quarter, and to purchase all goods from plaintiff providing the same were sold at as reasonable rates as they could be purchased from any other merchant. After a lengthy cross-examination by Mr Hammerton, he stated that from the turn the case had taken he would consent to a verdict for the amount claimed, with costs, but trusted the plaintiff would allow time for payment His Honour directed a verdict accordingly, with costs, amounting to £ll 12s 6d. The Court then adjourned sime die.