SUPREME COURT.

Taranaki Daily News, Volume XLVII, Issue 8067, 24 March 1906, Page 2

SUPREME COURT.

CIVIL BUSINESS. Fkiday, March 23.—Before His Honor Mr Justice Edwards. DOLAN V. DOLAN. - Dolan v. Dolan—Claim £331 2s Gd, trust funds. On this case being called on, Mr W. L, Fitzherhert, counsel for the plaintiff, stated he was pleased to announce that a satisfactory settlement to both parties had been arranged, and asked that the case be struck out. Mr Robert Spence, who appeared for the defendant, concurring, His Honor struck the case out. A dissolution of partnership suit, Crantou v. Worlhiugton. was also announced as settled. Mr Quilliam for the plaintiff and Mr Malone for the defendant. Ro Riverdale Co-operative Co, (Mr .Caplon) v. Cameron, claim for £236 7s 6d trust moneys, and Bank of Australasia (Mr Quilliam) v. Pope, claim for £lO5 and interest. No statement of defence having been (lied in these cases the rules provide for the enter* iug up of judgment by default. llirill IIAK.UIAIA AXD OI'ItEUS V. K. n. GIBBONS. Riuhi Hakaraia and others v, E. H. Gibbous—claim £260. On the resumption of this case, Mr Fitzherhert called Messrs Thomas Oliver and C. W. Rowe, who, in their evidence, agreed that Mr Gibbous had grassed the property in question, in the best grasses adapted to the peculiar nature of the soil, aud that the fences that had been erected wore in good repair, aud were both cattle and sheep proof. With reference to the boundary between sections 33 and 31, they expressed the opinion that it would only be useless expense to erect a fence thereon, as the peculiar formation of the land constituted a natural boundary. They also expressed the opinion that the so-called " couch " grass was not the weed of that name, but was a good English grass, known as poapraleusis, and was, iu point of fact, the only permanent pasture that would '•take" on this properly. They did uot consider the natives had suffered any damage whatever with respect to the grassing, which was as good as any reasonable and practicable farmer could lay down.

Evidence was also adduced from Messrs A. H. Halcombe, G. B. Kyugdon, and George Pott, as to the proper methods, and the correct grasses required on these sections in question, their opinions corroborating the evidence of the other witnesses for the defence. At the conclusion of this evide.ice Mr Fitzherhert closed his case aud addressed the jury at length, commenting on the evidence adduced on behalf of both sides aud urged the jury to construe the lease as favorably as possible in favor of the defendant, seeing that he had carried out the spirit of the covenants, and impressed upon them that although the natives might have a claim for a technical breach, yet there was no equity whatever iu their claim, and that they were merely endeavouring to extract damages from the defendant on the drastic reading of very stringont covenants. He submitted that as to the grassing, the evidence clearly proved that tho defendant had done all that was possible for a practicable and reasonable farmer to do in laying down the land in the best pasture adapted to poor second-class land that this land appeared to he. With reference to the fencing, he submitted that (he amount paid into Court, namely £2O, was more than suflicient to satisfy any damages the natives might be entitled to. Mr Fitzherbert's address occupied about three quarters of an hour

Mr T. S. Weston addressed the jury for an hour on behalf of the plaintiffs, and impressed upon the jury the fact that these covenants had been entered ; into by Mr Gibbons with his eyes open , and that he must be bound liy them, and that if he committed a breach he must be answerable in damages, whether the covenants were stringent or not. He contended that the defendant had not grassed the hind as he should have done, nor had he fenced the laud as required by the lease. He aiso submitted that the damages claimed were reasonable aud that the plaintiffs were entitled to a verdict for the full amount. His Honor, in summing up, stated that the jury knew as much about the evidence as he did himself aud he did not propose to comment on it. He then addressed them on the legal points and pointed out that the jury, in assessing the damages for the fencing, were only to take into consideration the cost ofjerecting good, substantial fences suitable to the nature of the country and were not required to give as damages the cost of erecting legal fcuces. With reference to the subdivisional fence between Sections 31 aud 36, ho asked the jury to assess the cost of erecting half of this fence aud he would, when giving judgment, rule whether the defendant was liable to construct same or uot. With reference to tkc grassing he directed the jury to bring iu a verdict for the defendant if they were satisfied that the defendant had laid down the pasture to the extent that the freeholders iu the district usually did, but that if they considered that the defendant had failed to perform his covenant then they should givo ii verdict for such damages as it would cost to lay the land in the pasture it should be in according to the covenant. His Honor's summing up closed at 2.15 aud the jury returned with their verdict at 3.15. They found that the defendant had observed his grassing covenants and that, therefore, the plaintiffs wore not entitled to any damages. With respect to the fencing they fixed the damages at £3l 7s 8d or £ll 7s 8d more than was paid into court, this sum representing the half cost of fencing the sub-divisioual fence between Section 31 and 36, which His Honor held the defendant was liable to fence. Mr T. S. Weston thereupon moved for judgment, but on tho application of ' Mr Fitzherbort, His Honor postponed ' dealing with the matter until later in the afternoon, to give Mr Fitzherhert an opportunity of arguing the point . whether the defendant was liable to erect a fence on the boundary sub- • dividing the two sections leased by the ' defendant or not. ,

On the matter bciDg brought before l the Court again, Mr Fitzhcrbert intimated that his client accepted his | Honor's ruling on the point, but asked t that costs be allowed on the Magistrate Court scale only, that witnesses expenses be disallowed to the plaintiff ' tor those witnesses called to prove the > grassing covenant, and that the plaintill be allowed the witness expenses , for those witnesses called by the defendant, who proved the fiillilment of the grassing conditions. His Honor granted Mr Fitzherbert's i'ec|iiest, gave judgment for the sum of eil 7s Sd in addition to the amount of £2o,|paid intoCouri, total £3l 7s Bd, with costs on the Magistrate's Court scale, and ordered the plaintiffs to pay the expenses of the following witnesses for th,e defence, namely, Captain Wilson, and Messrs, lfalcombc, k'yngdon, and Poll, IX MYOKCK EsriXKß V. KBCIXKII. _ This was a petition by Paul "William hspiner, of Mana'a, farmer, praying for restitution of conjugial rights from his wife, Emma Fspiner. Mr W. Ij. Pitzherbert, instructed by Mr A. G. Dennett, Solicitor, Manaia, appeared for the petitioner, and Mr liobcrt Spcnce for the respondent, who had entered an appearance, . but had not filed a defence. Mr Fitzherbert intimated that lie ' proposed to shelve for the. pr.ci.eiit the question of guardianship of children, and as Mr Spenec was instructed as to 1 those questions only, he withdrew by i consent from the case. , The petitioner gave evidence that i bis wife and be were married at i Hawera in 1885, and bad lived at i Manaia together to the beginning $ t January, 11)0:4, and that there were ' seven children of the marriage. His i wife left him in January, 11)1);), giving ; as her reason that she preferred to i milk mi slwes, although, ty t'e, (

quested lief on several occasions lo return to Win. She had always flatly refuted to do so, and as late as yesterday, absolutely refused to be reconciled, and he stated that she would not return to hi in. His Honor granted the decree for restitution. BAKDELL V. IUii'DELI. William Raudell v. Frances Ellen Randell, husband's petition for restitution of conjugal rights. Mr Foy appeared for the petitioner, n brickmaker at Hiuvera, It appeared that the parties were married at Han-era. The wife subsequently left the petitioner, wont to reside at Wauganm, and refused to return home. There was no appearance on behalf of the respondent, and His, Honor granted a decree. HAIVES v. lI.LIVES. Thomas Halves v. Catherine Hawes, husband's petition for dissolution of marriage. Mr T. C. Weston appeared for the petitioner and Mr Malone for the respondent. Counsel stated that the parties were married at Auckland in 1896, and resided nt Auckland and at the Thames. Two children were born, and the wife left her husband in 1899, coming to New Plymouth, where, in August, 1902, an illegitimate child was born. His Honor had made an order, dispensing with sen-ice of the petition on the co-respondent, who was not known. Evidence was given by the petitioner, and the usual order was made. CHAMBER BUSINESS. Re Thomson to Williams, under Chattols Transfer Act, 1889, and instrument of security dated February 7th, au extension of time for registration was granted, on the motion of Mr T. S. Wcstou. I