Supreme Court.

Taranaki Daily News, Volume XLVII, Issue 7854, 21 June 1905, Page 2

Supreme Court.

———•— CIVIL CASES. The Supreme Court sitting at New Plymouth was continued on Tuesday ' before Mr Justice 'Edwards. I —A Poiint of Practice. — ( In the'case of P. W. Watts v. James | Hawkins, a claim for £IOO comniisI sioa (removed from the S.M. Court, New Plymouth), Mr W. Fitzherbert, who on 1 Monday obtained an -adjournment on behalf of the plaintiff, gavn notice of, discontinuance of action. i Mr O. Samuel, for tha defendant, raised the question of whether the case could bo discontinued after it had been called on, appearance made and an adjournment granted. It was he said, a question of practice, whe- ! ther the calling on of the case, and the adjournment,, did not constitute the case having come on for trial. He contended that if the plaintiff was not prepared to continue, the defendant was entitled to a nonsuit Vith costs. Mr Fitzherbert submitted otherwise. He relied on the authorities in support of his contention that the discontinuance l was in order. In answer to his Honor Mr Fitzherbert stated that should the docisßon ot the Court be against him he would accept a nonsuit. His Honor said that the point was a new one and he would look up the ; authorities quoted by counsel. He therefore reserved his decision. —Disputed Boundaries.— Alfred Bayly, settler, of Stratford, sued Alexander Campbell, of Toko, ' on a claim for spccilic [Krfornuinee ' of an agreement. Mr Malone appear- ' ed for the plaintiff, and Mi' T. S. Weston for the defendant.

The facts, as explained by counsel for the plaintiff, were that plaintiff was owiier of 1000 acres of land in the Ngoire—Toko district. Some time ago the plaintiff made what waa known as a compass survey to divide tho property into farms, the subdivision being then for private convenience only and not for purposes of sale. One of these subdivisions, situated in the corner of the block, was bounded on two sides' by the Toko Road and Mr Eagle's farm respectively. This subdivision was occupied for some time by Albert Symes, who milked for the plaintiff on tho share system. Some two or three years ago there wuss a land slip on Synies' boundary, abutting on Eagles' property. Tho originul fence, on the survey line, was carried away and-in order to safeguard the fence in future it was re-crocled l 'inside the survey line, thus cutting out about'on." acre. By arrangement with Symes, Bayly also fenced off a watering site (or stock. On August 24 Jast the defendant entered Into an agreement to purchase the property (containing 173 acres 1 rood H* porches) occupied by Symes, at £l3 per acre, on cash and mortgage. As the compass survey was not sufficient fer land transfer purposes, plaintiff had a plan ceparrd by .Mr H. W. Climie, authorise surveyor. Defendant was noticed of the area under the new plun, and though the lagrepmcnt was signed-, he rniSKil objections against tho boundaries. He wanted both the land slip and the water hole site excluded from the area he purchased. The plaintiff was willing to accede to the latter being excluded, but not the former, holding that defendant must ibide by the surveyed plan. T>efonlant had been in possession since September, and had made no payment.

Plaintiff then gave evidence ib support.

His Honor : Wli-at is the area in dispute ?

Mr Malone : 1 aero 1 rood 10 per-t ehes.

His Honor : Then at £ls per acre you are moving the wholo machinery of this court for an- amount involving £lB. I think you might hava come to some agreement, if only by tossing up a coin. Mr Weston, for the defendant, said he had tried hard enough for a settlement. Evidence was also given by Arthur Symes, and H: W. Climie, surveyor. Mr Weston said that it was coni tended for /the dofkjnee that' neither the water hole nor land slip w;as included in the land defendant bought, but that if one was included then both must be as a matter of course. Defendant in evidence said that when he inspected the farm he was not told that the fence he saw at that time was a divergence, and naturally assumed that he was purchasing ®nly the land within the boundaries then fenced. He t'hereflore objected when it was sought to include the land slip site. He had always been quite willing to complete the purchase, excluding the site. He was not treated fairly in being asked pay for that useless piece. The dispute had ibeen so long pending, that it hail retarded his work for th'roe

or four months. David L. Astbur.v, farmer, of Mahoo, staled that It wouki be a na-

tural inference to assume that the divergence in the fence was the au-

thorised boundary, in view of the steep hill and land-slip which it skirted. The hill was likely to continue slipping down.

Counsel then addressed the Court. Mr Mialone, in concluding his argument, submitted that if a decree was given tor performance of the agreement, interest since occupation was also duo to plaintiff as an inherent right. His Honour was of opinion that in-

terest was only recoverable if included in the clialm, which was not done. He reserved judgment. —A Postponed Suit,—

On tho motion of Mr Malone, acting for Mr Barnicoat, of Wangnnui, tlio impending notion, McGregor v. Van Asoli, a claim for ama pes for alleged standee, was adjourned toj the September session. —An Action Discontinued.—

Notica of discontinuance of action was filed in the case of Cossey v. I'ey, a claim for £SOO damages) for alleged misrepresentation respecting the sale and purchase of a leasehold property. —lii Chambers.— Re Mary A'pflerson Ifardpn, deceased, late of Fitzroy. On tlie motion of Mr Mulone, a grant of Urtiters of. administration on the usual terms was mUde to Sarah Annie Harrison, the eldest child and one of the next of kin of the deceased. >