SUPREME COURT.

Taranaki Daily News, Volume LII, Issue 335, 10 March 1910, Page 2

SUPREME COURT.

NEW PLYMOUTH. WEDNESDAY. (Before His Honor, Mr. Justice Edwards). The Supreme Court resumed its sessions yesterday. ' QUEEN STREET ASSAULT. | John McCarthy., alias McArthur, was presented for sentence for having as-! saulted Bridget Campbell and iniucted : actual bodily harm. I Asked if he had anything to say be-1 foi-e sentence was passed, accused said th<j assault had been committed in tiie heat of excitement, and without any intent to harm. For the past six months ! lie had been quite blind. He asked that a fine, and not a term of imprisonment, be imposed. > His Honor remarked that prisoner had a very bad record for acts of violence. He read a list of convictions agaiilSt accused, for resisting the police, cruelty [ to a horse, assault, breaking and enter- j ing, theft,, and trespass. It was a very j sad thing to have to sentence a blind' man, but such acts of violence could not be passed by. He had said on the pre- j vious day tuat he would reserve for the •Court of Appeal the question whether the addition of the words 'by throwing a frying-pan at her head," to the indictment, precluded accused's conviction. But he had looked at the Statutes in the meantime, and it was plain that he had power to amend the indictment. It was plain that the addition of the words he had mentioned had not affected accused's defence. The indictment would therefore be amended by striking out of the second and third counts the words •he had mentioned. As' .he had said before, lie was very sorry to sentence a blind man to imprisonnent, but it was quite impossible that he should be «1loved, while quarrelling with other persons, to throw things about and innict bodily harm. The sentence would be a light one in the circumstances —one that would be inflicted for common assault. Accused. was then sentenced to '■ year's imprisonment, with hard labor, in New Plymouth gaol. CIVIL BUSINESS.

. Mr. Spence, for the plaintiff (instructed by Messrs Wake and Gow, of El'tham), announced that the case of Nicholas Muir and Francis Jones, a claim for £SO, amount alleged to be overdue on a promissory note, had been Settled. Mr. Quilliam, for defendant, said the case had been settled by a compromise satisfactory to both parties, the defendant paying part of the claim. The defendant bad not intended to make any imputations against the plaintiff or his legal advisers. If anything said by him had been so understood, he desired that such statements might be considered as unreservedly withdrawn. O'CONNOR v. O'RORKE. Michael O'Connor, a farmer'at Omata, sued John Callaghan O'Rorke, farmer, of Oaonui, for £153 16s for damages in respect of alleged" breaches of covenances in a lease. Mr. C. H. Weston appeared for plaintiff and Mr. Quilliam for defendant. I

The following jury of four was empanelled:—Charles M. Lepper (foreman), James W. Bruce, Joseph O'Shaughnessy and Isaac Goodwin. Mr. Weston, in opening the case, said the farm was situated at Rahotu, and contained about 506 acres. Th J , leasf should have expired on Ist Aagnsr, 1909. but just before that plaintiff took Crockett to see the property with a view , to a "deal." Defendant had a purchasing clause, but had •notified the plaintiff that he did not intend to exercise his right in this connection. He found the place in a neglected state, and upon instructions his solicitors communicated with O'Rorke. asking him to fulfil th n covenants of the lease. Plaintiff made a further inspection, and claimed £IOO damages. No reply was received until a second letter was sent. O'Rorke wrote that in September that he was having some grassing and fencing attended to, bat stated that O'Connor must not expect him to make a model farm of it. Plaintiff then leased the place to Thos'. ■ Corkill, of Oakura. Another inspection of the property was made and it was found that the damages had been irn-der-estimted at £100; hence the claim for £153 16s. The jury had to consider ( ' three points: What did O'Rorke cov-1 enant to do? Had he done it? And if ( not, what damage had O'Connor suritsred as a result? He covenanted by clause ' 7 that he would leive such portion ot the land as had been broken up during; his term in good permanent English! grass pasture, and the remainder of the j place in good permanent pasture.. One ; piece of 13 acres and another piece of' two acres had been ploughed, but had j not been sown down. For this plaintiff ■ claimed £l9, and £4 lis for loss ot pasture on that land. The tenant also • covenanted to keep cut all gorse on the ; land so that it could not seed, but that ?iad not been done, and during the three | years the gorse had been left to seed, i and had spread very rapidly. For this i plaintiff claimed £SO. Another claim; was in regard to drains, which were; necessary to the good farming of the' land. The tenant had, once a year, in ■the month of March, to clean all 'grass and weeds out of the drains, but these had not been touched, and now it -was very difficult to find where they were. | As a result, much of the land had gone back to swamp grasses. For this, £3O was claimed. O'Rorke had been re-, quired to deliver up the fences, buildings' and culverts in as good order as when he took them over, fair wear and tear excepted. When he took the land the fences were in fair order, but when he handed over the place to O'Connor tnese were mostly lying on the ground, where they rapidly deteriorated, and the plaintiff claimed ; £2O in respect of this. The total claim was .£153 His, and defendant had paid into court £lO 14s, thinking that "the plaintiff should be satislied with that. Unfortunately, he was not. I Charles Thomas Mills, accountant with farming experience, produced his report j on the property, accepted and signed by j O'Connor and O'Rorke on the day the

leas- was signed, in 1006. On Ist August. 1909, he again visited the property Avith the oAvner. On account of a severe southerly blizzard, with consequent; flood in the'stream, they were unable to minutely inspect the whole farm. He found that little or nothing had been done since 1000. Furze, fencing, culverts, drains, grassing and the buildings had been neglected. Upon his advice the plaintiff made a claim for £IOO damages). On 21st November and in February he ao-ain visited the place. A paddock of 13 acres had been cropped with turnips during the last season, but had not been re-sown with English grasses. Another paddock of two acres, Avhich had been used for cropping, had not lie\m" resown. It looK-ed as though it had been cropped by natives. Ploughing and harrowing the small piece, and harrowfog the whole fifteen acres, would cost

£8 7s Cd, tmi sowing and seed would cost £l9 Is. He estimated that tiie | loss of tlie pasture by reason of this I 1 land not being in English grasses was | at the rate of about (is (id an acre, or j £4 7s Cd in all. Little or nothing had been done in the matter of cleaning '. the furze on the other side of the river. I The 'bulk of it would be from three to ; four years old; some less. At his first j visit he reported that the gorse was! only a year old. The fifty acres ap- j proached closely to the description of a furze brake. Very small portions of the gorse in the gullies and stream | courses had been cut. On other jior-1 tions of the property the gorse had also been neglected. Fifty pounds was a I low estimate of the damage caused un-1 der this head. There were 170 chains | of drains, made on a regular system. ' Practically nothing had been done to i the drains during the term of the lease. | The weeds and grasses grew rank in i the drains, and water was backed up. to j the detriment of the property. He estimated that forty acres had been in-! jurioush affected, and he considered 25 ; acres of that was due to the negligence of the lessee. The owner would lose £3O 15s by this, so the claim of £25 was reasonable. It would cost £3S 5s ' to reinstate the drains. The fences in August last were in many cases lying on the ground, and in other places very , nearly so. There were about 300 chains j of fencing on the property, ami the esti- ' mated it would cost £22 to put it back j into the same state of repair as when : O'Rorke took over the property, fair j tear and wear excepted. One buildins had been very much neglected, and it j would cost £2 5s to re-instate it. Four I

culverts had also been neglected. The property had deteriorated for selling purposes by £SOO. " i To Mr. Quilliam: He had been farming all his youth, but from twenty years .of age. with, the exception of two years, he had been in business as an accountant, but had also had the supervision of farm work, fencing, grubbing gorse, and so on. If 400 heart of rimu "posts , were p'aeed in the fences during the ' tenant'? term it should have complied , -with the conditions of the lease. The fences when O'Rorke handed over the property were in a disgraceful state. The culverts were partly of sawn timber. Some of the fences had been made j ,of driftwood. i Robert W. Davies, of New Plymouth.! stated that on 13th February, 1010, n« ■ •visited the farm at Oaonui.' To grass ; down the two paddocks named would [ .cost from £1 15s to £1 17s an acre. ' There were about seven acres of gorse ' from four to six feet high. Some of it had had the tops knocked off, and , some badly burned. To burn gorse was .one of the worst things that could be

done with gorse. Gorse seeded very ! , readily in land of this description. The j • claim in regard to gorse was reasonable, j ■ He was convinced th e drains had notj [ been touched; the water was waist- j . deep in places. On section 87 the drains \ had disappeared. It would cost 5s a j chain-to put the drains in order, or a total of £OO 10s. In the sandy land . .it would pay better to make new drains. : There were about forty acres of recent growth ot swamp grass and raupo, eaus--1 in? a loss of two years' pasture, Some L .of the fences were lying in the grass, i ■ and some had hist been renewed. ! I To Mr. Quilliam: If a man offers to • plough and sow the 14 acres for £ls. " the orice was a low ojie. .Even if Mr. , ■ Onilliam brought a man of unblemished , character to swear the furze hid Wn i 1 cut one? a rear, and that on the flats j 1 twice a. vear. he would not niter his '■ oninion that the furze had jot been cut j ■■ for three vears. 4 i r Thomas Corkill, blacksmith find farm- : v .er at Oakura. the present tenant o'f the \ " farm in question, also cave evidence. | ' Ho hnr 1 fir=t seen the nine" in Angrsf \ 3 list. Tt looked verv miTch neglected. J The ploughing done by O'Rorke during : .witness' tenancv had been very poor, j 1 m\h- about ft pouide of inches cieev, nmi ! he had complained to the orner about i e it. A contract for the harrowing had ! 5 been let at £5 10s. and the contractor! was asking £2 more. Tn another two | B years the 50 acres across the river j = would have been just a furze brak" i ' The witness confirmed the evidence of the two previous witnesses in regard to '' the drains, furze and fences. Joseph Crockett, farmer, of Omnta 1 gave evidence on similar lines, and eon--8 sidered the claim for damages was , much too small. , l

Michael O'Connor, the plaintiff, gave evidence that during O'Korke's term ithe farm had gone back, and .">0 acres ■•f it had become a wilderness. When he let the ;laee there wer e only tiny plants of gorse. but now there was goi'se thai fould b<-j cut only with an axe or a grubber. The drains in the sandv land were net .first-class when he leased to O'Rorke. but they were not even in ■existence now. The fences were in a shocking state. Cross-examined: Up till June last he had expected O'Rorke to exercise his purchasing clause. He acknowledged having instructed his solicitors to telegraph O'Rorke in September to do nothing further to the land. His idea was that he would do the grassing himself, «as Corkill threatened to throw up the place unless the matter was attended to. It was possible to cut young gorse every year for seven or eight vears without getting thick stumps. Mr. Quilliam was cross-examining with regard to the condition of the place when O'Rorke took over, but Mr. Weston said that the Court was bound by Mr. report, signed by the parties, at the times the lease to O'Rorke >was signed. The plaintiff said that he had never planted sand-grass, where the drains had been. That was planted on the sandhills only.

Re-examined: He was not claiming for any drains that were not in existence when he leased the place to defendant. In closing the case for the plaintiff, Mr. Weston asked if it were possible /or the jury to see the property. His Honor said it was quite impossible. Mr. Quilliam briefly outlined the case for the defence. The farm, he said, had been leased from the plaintiff by the defendant for three years. It wa's a poor sort of « place, and had been occupied for ' some time previously by grazing tenants. All that\ the defendant had undertaken to do was to leave the place in fair order, reasonable wear and tear excepted. This applied to the land itself. He admitted that the defendant had broken the covenant in not sowing down a piece that had been "broken up! It was the worst piece of the farm. It was sour, and previous tenants had not been able to do anything with it. So he ploughed it, manured it heavily! and put it down in turnips, intending to grass it in June and July, but weather conditions made this impossible. He .tried to do this after the expiration of his lease, but was stopped by the plaintiff himself. The defendant had not covenanted to grub the gorse, but only to keep it cut. This had been done. As for the drains, it would be shown that many were filled up before the defendant got possession, and the running "drains had been kept open. It would be proved, also, that the 'fences had been repaired with some 400 posts. The .defendant had paid into court a sufficient amount to compensate the owner for any damage caused bv non-fulfilment of the terms of the lease, and Mr. Quilliam said he was sure that he would prove that the plaintiff was not entitled to a penny more.

John Callaghan O'Rorke, a farmer, residing at Oaonui for 22 years, and the •defendant in the action! said he had not been on the place for years when he took it over. He had not'thoroughly inspected the [property when he signed Mr. Mills' report, from which one clause in relation to cattle-proof fences was deleted at his request. He had taken it for granted that Mills' report was correct.

His Honor said that the defendant was bound by that report, unless it was suggested that it was fraudulent. He could not see how counsel could go behind the report.

Defendant continued: He arranged with a Mr. White to occupy the 1.-.rm. and to his own knowledge White cut the furze every year. It "was no worse now than when "he got the farm. The fences were very poor, many of them being made of driftwood. They Ave re more like a Avire tangle. When'he left there -Avas one piece of this driftwood fence down, and £4 10s would have repaired it. He had intended to carry out this work, but Messrs Weston and*Weston Avired and wrote him to do no more Avork. Some drains had heen completely obliterated, but all the open drains had been kept open. He himself had seen that White did that. The little house alleged to have been damaged Avas not habitable. He had let a contract to plough, disc harrow, and sowing the fourteen acres, but there Avas a very Avet spring, and the sowing bad to be delayed. If sown in December there should be grass for cattle in three months. White, his tenant, was a conscientious man.

To Mr. Weston: He had been in the colony for 34 A'ears. He signed the .lease and Mr. Mills' report on November 7. but hail taken possession of the place three months before. White went on to the place on August Ist. He signed a lease with a purchasing clause without •properly seeing the place. He did not knoAv that two acres were not in grass. He maintained that 251b of mixed seed per acre was an ample quantity. Only ten chains of fencing on the farm Avere not as good when Avitness left the farm as when he took it over: This bit of fencing had collapsed. The rest was upstanding and better than Avhen witness took possession of the farm. He had seen the gorse cut by White and men the latter employed, principally in the winter time. The running drains were ch-aned out. He had written to plaintiff's solicitors saying that he Avas trying to g"t White to keep his agreement because of the ten chains of fencing he had mentioned. He had not inspected all White's work on the fences. White's share with witness Avas 40 per cent. When White left Avitness owed him some money, and from (bis witness deducted about £2 for the bit of fencing referred to.

Henry Hopkins, a. farmer, and a former tenant on the farm, deposed that there A>-as n brake of about ten to twelve acres of gorse at the back of (be place. He was on the place twice whilst Mr. White occupied it. The place looked much about the same as when ■he had left it. There was furze coming through on the banks of the stream. The drains Avere very bad in places. Whilst he was on the place fully sixty acres o! grazing land were covered Avith sand. <?nd nrnoticallv lost. O'Connor planted sand-grass then', and in doing so nlanred over the outlet of the main drain. O'Connor did no) know where this drain wn-\ He was on the nlace for twelve months before he found this particular drain. To his Honor: The sand Avas formed inlo hillocks. The sand-grass was not chpcking it. Evidence continued: Owing to the main drain being blocked, the Avater Avas blocked, and a swamp formed, in his time. The fences were not good. Some of them were of driftwood, and the Avires so rusted Avith salt Avater» that they Avould not bear straining. The fences Avere standing, and no more. The fence down bv the beach was a tempo(Continued on page 3.)

(Continued from page 2.) rary affair of driftwood posts, half a ! chain upart, and two wires, erected by ]iim at O'Connor's request to keep tne : cattle oil this part of tin l farm until '■ the sand-grass became established. The culverts were rough affairs, of split tmiber. The small house was built of white ( pine, and practically unhabitable. It i •would do as a calfshed. The fii'teen acres which had been ploughed was always wy poor, and grew very little grass. It was about the poorest spot ; on the farm. He reckoned h.e could sow j twenty acres of grass »eed per day. The grazing was worth 10s an. acre per annum. To Mr. Weston: He paid 15s an acre rent when he had the farm. His lease expired in November, 11J05.

To ilr. Weston: lie had not had any bother with O'Connor over some flax. There was something said, but no bother. It was only the gorse on the flats that witness considered he had to attend to, and he attended to it. There ■were two teaants of the farm between the time witness left it and when i O'Roike to.ok it over. He could not say, therefore, what condition it was in when O'Rorke took possession, Cleorge Frederick Sole, farmer, of Oao. nui. living opposite O'Connor's farm, said his father bad 'had a grazing tenancy- of the farm for some months before O'Rorke took it over. Lawn had a similar tenancy after 'that, Neither did any -work to the furze or to the drains. At that time, there was a lot of gorse on the \% m \ ''over the river," He had frequej\t.ly seen White chopping the gov'e- vit.h a slasher, and knew he had hia mt; n working at it. Up till July-, 1909, he had frequently coursing 'on the farm, and the place was in no worse state then than when he grazed on it. When O'Rorke took the farm several of the drains had been filled in by'the sand. He had frequently seen White working in the drains, and these were a? good when O'Rorke left as when he took the farm. His cattle and Lawn's had grazed over the whole farm, and must have damaged the drains. The fences at the end. df life tenancy were Very bad, the posts being mostly of driftwood. He remembered White o'b' taining posts, and saw him working at the fences. The fences were as good when O'Rorke left as when he himself had the place; the posts would "oe bet- | ter. He considered White was a very hard-working man. To Mr. Weston: He was not aware that he had ever informed Corldll and his two sons that it was a d—- shame that O'Rorke had left the place - in such 1 a state. He wonld not swear that he did not sav it.

William White, farmer, of Ksupofconui, formerly a sergeant-major in the defence forces, and stationed close to it some thirty years ago, said he had known the place during the whole of the time. He had been farming for nineteen years, and took this farm from O'Rorke in TOOG. This piece of 13 acres was very poor, so poor that the cattle would not stay on it. So O'Rorke had it manured and put into turnips. It was cropped, and was ready for the plough when he left. When he went on to the place there were patches Of gorse all over the section, and it grew thick on the banks of the stream and on the land across the river. He cut lurze through the whole of the first winter, until the busy season, and he considered that he had practically kept it from seeding. During his tenancy he prevented it from seeding. When he got there he cleaned out the drain leading into the sea drain. It was the only one that was a drain at all, the others having been filled by sand-drift. As for the fences, they were "just fences, and that was all," the division fences having driftwood posts, and wire so oxidised that it could be crushed between finger and thumb. He put in 200 posts in the first three months of his tenancy, and was repeatedly replacing posts. Probably he used 400 posts, besides battens. ■He left the fences in better condition than he found them in. The little building mentioned was thirty years old, absolutely riddled with white ants, and the only use he made of it was as a place for his daughters to change their milking clothes. He renewed one of the culverts shortly before leaving. His family 'eft the farm on 25th July. He stayed for about ten days later, cutting gorse, putting posts in the front fences, and doing other things that he thought he ought to do. He spent about £l6 for labor at the gorse and fences whilst on the larm.

To Mr. Weston: He kept only the two front duiins clear. What he arranged to do was to cut the gorse, keep drains open, and fences in repair. He and his daughters milked ninety cows on this farm of 506 acres. He may have said to Mr. Mills, "What can a man do when in three years he only gets three pounds of staples?" O'Rorke made two small deductions from his cheques for alleged breaches of covenants which he had undertaken to keep. He didn't get what he should have got out of the factory bonus. He had cut down gorse fully twelve feet high. There was no exaggeration in his statement that there was gorse in patches over fully 300 or 400 acres of the farm. Mr. Weston-addressed the Court, but Mr. Quilliam did not. His Honor summed up briefly, and stated that the defendant had so far cross-examined the witnesses for the plaintiff, and adduced such evidence on the other side that the whole matter was at large for the jury to consider. The jury retired at 3.55 p.m.. and returned at (5.15 p.m. with a verdict for rilaintTTt, awarding him £35 damages. His Honor entered up judgment accordingly, with costs on the Magistrate's Court scale. AN APPEAL CASE. In the appeal case John Dwyer v. John Reeve and Lucy Reeve, appeal from the decision of the Stipendiary Magistrate at Patea, who awarded Lucy Reeve £75 5s damages, with £l2 17s costs, for injuries received in a fall from a horse, caused, it was alleged, through the appellant's negligence in leaving certain fencing-wire on a road, Mr. Welsh, for the appellant, stated there was evidence that there was wire on the road j before the appellant put any wire there ! at all, and it had not been shown that the wii - '.' which actually caused the accident had been placed' on the road by the appellant. His Honor said the Magistrate could reasonably infer that the accident was caused by the appellant's negligence. Mr. Welsh, however, considered that the plaintiff in the case should have been able to prove that his client was to blame. At the conclusion of Mr. Welsh's argument his Honor said this was not a case which he could have withdrawn from a jury, and the Magistrate, who was in the position of a jury, had drawn from the facts an inference which he was not disposed to interfere with. Mr. Quilliam: Does your Honor call 1 UP The Bench: No, T think not. Mr. Quil-

liam, unless you can convince me that Mr. Welsh is right. The appeal was disallowed, with, 15. guineas costs. A CASE ADJOURNED. An application was made by ilr. IL. P. Richmond, of Auckland, for defendant, for an order for a special jury in the case of the Official Assignee in bankruptcy in the estate of Charles Edward Hyde* of Stratford, versus the Sun Insurance Office. In this case, in which a claim is being made for £195, insurance moneys, with interest,, alleged to be due to the destruction by fire of certain chattels, etc., in a bootmaking business. Mr. Spence, for the plaintiff, opposed the application. His Honor made the order as asked for. The case was then provisionally adjourned to Tuesday, 3frd May.