DISTRCT COURT.

Wairarapa Daily Times, Volume 3, Issue 845, 13 August 1881, Page 2

DISTRCT COURT.

MASTERfON FRIDAY."' {Rofore His Honor Judge Shaw.'] \V. .Jjiiljiamsj gldu &Co.-Mr Bunny for plaintiff,' Mr Bgarif/o'r defendant,'. Mr Bem - d said; tlint he had only just been instructed and was not ready' to proceod'idij) the ease. He asked for an adjournment/' The Court raised the objection tljat an adjournment would'keep the plaintiff' from his remedy for two months, j stated witnesses • had come \ from a'considerable distance in tins case, and tin adjournment would be yerv incon- ' veuient..■' ' .;.',' ■'•"'V '..'.,) The .Cburt'offered to'-, take- the case the I /allowing morning..' : . '■' ."■', : " i iff BearpV could not say till her had gone into the pass, whether he woiild be i ready-then. . ', .' .' . '' ';. The case was adjourned .prev-tera. to : enable Mr Beard to consult' with his client, ' • . ; ■ R; ; V. Smith y Truces qf the late W, R. HaWell, (6. Beetham, I Sully, arid J, G. Oox.l Claim promissory note M Bs, Mr Bunny for the plaintiffs, Mrßeajij for the defendant. '"/■''. ' ,'. ' Mr Beard applied for an adjournment as the principal witness ,R. \V, : Morphy,; was Unable to cross the Mariawata Ri'var/

owing to a heavy flood. He handed in a telegram fun Mr Hornby to this offect. , Mr Bunny opposed the adjournment as he undoist.iud the mtne>s h.i 1 not been summoned, undmatood that there JiadJ^ju\flood which would witness in ques'v 'Mparlc, telegraphist, attended at the' reqjiest;,;6f;th'e Court, and stated that the'teleofairiiwaa'iiespatchsd from Woodyille, and came to Masterton via. Wellington." ::::;:::;:v:"T "'.; :;:v;::c ';;::;■;:-.

> Mr James Macara at the request of the 'Court stated that he was of the opinion : ,thM:Mr,Morphy,could;have.obni.e:throuKh the, Manawatu,; the previous day, The mails-came through,'.'. The Court thought that' if the mails could cpm.o.across Mr Morphy ; could havo crossed. .; ' .. Mr Beard, said that- Mr Morphy was absolutely His only witness, and that he could, not proceed with his case without ; \, ;'.. '•A/.O'YU: Mr Bunny .submitted that alternative pleas<of~an inconsistent character had beon.set'up by the.defendant, and that the set off of the defendant should he ..obtained by a cross-action. '"'.■' • ; ''}.!:. ■ TheCoiirtWashot'suro whether under the old pleading the foitrth plea of the de ; fendarit 'could but under tho District Oou'rfc'rulea the defendant was entitled to gather into.hiß net'every possible defeiice,'provided two altogether inconsiatent.defondasu'ore not sot up.; ; : •: ■Mr. Beard'stated'that four years had elapsed without any stops being taken by ■the plaintiff to recover, and a delay would not prGJudica.htm in any way so long as the: expenses of l the adjournment. were paid. ■' ■■': ; ■ "■ ' ' ';.

• Mr Bunny'submitted, that, the-sot-off virtually admitted tho plaintiff's' claim'.; Tho Court said if the plaintiff's., claim were not traversed it would be so, but in the present case the defendants traversed the claim of the plaintiff,' Mr.Beard suggested an adjournment to Greytown. ; • : ■ _ The Court would not take a Masterton jury to Greytown. It would arrange to sit at Masterton tint day week if assured that tho two cases would ho'ripa for heariug.oiUhat date. If it granted Mr Beard an adjournment in the' 'seoiid case, it would be on'the'ground that though he had summoned Morphy to-attend, the summons had not been aerved. ' After a further discussion His Honor adjourned the Court till 2 p.m.-to enable counsel to arrange their cases. •After the adjournment, the case .of W. B. Williams v Elder ■'&■ On'., .was proceeded with. Claim £79 ,Gj G,d for damages caused by lighting/a.ferri fire. . The Jury were : then' called. ■: : All answered to their names, and four put of twelve viz.,- Messrs Arnold,-James Nicol, J. O'Connor, and Thus.' Wagg, were selected by counsel to try the case, Mr Wagg. was appointed foreman of the jury. :Mr Bunny stated that the plaintiff claimed to recover special dam lgej £29 3s Cd, and the balance general damages for the fire lit by defendant or his sorvants who destroyed .plaintiffs propeity, He would have to rely for his esse on a hostile witness, viz ,- ut servant of the defendants, and he anticipated great difficulty in obtaining the proof of the tire being lit, especially as Mr Elder had intimated his intention of making his servant responsible for any loss he might sustain by his act. It would be no answer to the action if defendant claimed' that'the servant acted contrary to the instructions of his master.

Stewart Maedonald was then calld, and deposed that he was a shepherd in the employ of Mr Elder and Co., as was so iu February last, ■■ He and another shepherd named George Bland had instructions from Mr Elder about burning on the run., In accordance with instrucPions they lit fires. On or about the 12th of February they lit fires oir ; a portion of the property called the Black Hill, (At (his stage Mr Bunny submitted a plan of. the property.) \He lit the fire three-quarters of a milejaway from the, puiht.mar.Ked oiithe map.. A portion of the ground marked on the plan as burnt was not burnt at die time stated. He produced, a plan of his own, showing the area of burnt,gi'oiihd in February last.' The fire lit on'tho 12iiv was half or throe' quarters of a mile away from the burnt, feiico. "Having 1 lit the fire, ho waited to see how it would travel; It burnt away from the fence, the wind blowing hard from the north-west, It was not blowing from east to west, Between the firo and the fence was strong fern. It was a vory dry season. It-was only asm-ill fire ;he saw it two days afterwards, and only a few acres were burnt. When he'heard of a big Sre on the Black Hill ho was suspicious it-might be from his fire, lillheand Bland came to look at the fire which he had lit, About half-a-mile of fencing was burnt. He rgportfid ; t|)e affair to the manager. Ho was' not aware that Mr Elder would hold him.responsible for damage caused by .the fire, Mr Eldor had given orders not to burn in that paddock ; but he lit the fire on his own responsibility, to widen a sheep track. In February last a (ire in high fern would burn against the wind. In answer to Mr Beard-It'was not for weeks after that the half-mile of fern between the two fires was burnt off. There was no coipieotioi) ■ betwieq the fire lie lit am} the other fire, his fire was a patch of seveo'acres'by itself, ty did not join on;any other' fire. The same day he noticed the smoko of anothor lire below him. The paddock contained about 2000 acres, he only lit one tiro in it, In some paddocks they had instructions' to burn, in two or three contrary orders were given!

In answer fcn Mr Bunny-Thero was a chain of ground'between the fire whicli burnt the fence and 'the fire in Mr Williams'ground:' '' '■' ' ; W.-R Williams deposed that he was tho plaintiff in the present action, 57 chains of the dividing fence between bis ground and Mr Elder's was burnt on February last. He' had 'since re-erected it, He saw Mr Elder, who said that it wag witnesses portion of tho fence,'and proinjseo; l|ii'n/' staqdartpj t'q rfj-erect it, After ho put the fence up I|'e told Mr Elder that if he di<} not assist in cost of fence he should sue him,. Mi EJder agreed to pay half (he cost of the fence. The total amount the fnnoe qost was £29 16a 6d. He asked Mr Elder for a written guarantee for his share of the expense, but he said there was no oocasion fqr fhatj and wrote subsequently declining to pay. was from the south, and the south-east the whole V the yes!;. In answer to.-..t11Q "Q^U'rt— ;\Vitng9 ''f)eltl 4,000-aCres, and Mesar'n -.Elder 1 ft '(jo. 17,000 acres, the boundary fence between them running for about livei miles. Had mustered l}is sheep since the fence was • down, and fbunil ißo,rai«jiqgj Mr. Bunny, in 'answer; to the Court, said the case had been tried at 'Thiui in AprjUast, and the plaintiff jnon-suited on the py}dgnc§ gfvfjq. fitness estimated that a thousand acre?'we'ro burrft on/'Mr Elder's side.. The opuhtry'that wa/bi)ri|t was very rough, 'the fern being very high, No fire had been lit oh his'side neaHlie fenobduring the summer!'V. : , '% answer ty Mr Beard—The £29 lGs 6d covered.all ohargjs except.replacing wires since broken.' At the end of JJ'ebv miry he; only.'asked 'Mr Elder for odd. had a lot of trouble and 'expense oyer {the affair yljich he could not specify in the bill of cost's.' Ha could-hut ■ take his. sheep'.baok'-off Mr Eider's :run .because Mr Eldar-Vrun'was infected, and .witness's runw'as eleaq, :i i4 B •a'fleiglfbor

ho would; rijbb if it had riot boeir'for trieburnihg;. of -the fence, He had flufferei f rbm being burnt down pn'a;preriou3 oooasibn;" 'The wind worked; I'jrom north-east. He I wnt6h?dith'fl weatheivpakiciiiarly, because he was waiting to burn off sorub on his own landtf Her denied thep&uraoy of Mr MacaOnald's ifc/%hich were shown as disconnected, were at the time connected. About a thousand acres were burnt alto«ether—very little, ofJLafler tHei time (18th7Atfg"ust) when he "saw the place, Re felt confident that the small piece was connected with the large burning^'About chains- ofifencorhSdbeieri' burned. It would; qosVjtbojuV ; £lfa 'chain to put up a new fence, -Had replaced the fence with manuka saplings for pusts. None of them; were less that 4 incheß through, Mr Elder had promised to pay half the cost of-erecting thevfence, and had promised to inqui.re. into.'the/cauae of the (ire. Mr Elder did not say he had made inquiries, and that his man denied causing the fire. Had not spoken to him about it.since. .Mi; Elder told him that he 1 did not wish, this land burnt;off.' ; L. Cross examined by Mr Bunny:—There were about 12 chains across the flat, ;and about 45 chains down the boundary The fencing he had put up had cost him more than ,he had.stated-in his claim. ;-.,;: '. ißobert liangdon, Te'nui, deposed* he went with Mr Williams to see the place where .the fire occurred, and could: hotcome to any other conclusion than that the fire had originated on the Laugdale side. The fire was close up to the track over the Black Hill. He could not toll.. how much land had been burned, nor which way the wind was blowing at K the timpw.h.eii the lire pccurredi. j There/was very little fern on Mr Williams' side. If the measurement..given of the : fence by Mr Williams wns correct the price was not much out. , Cross examined by Mr Beard, ; 'The fence that had been put up since the fire was a good one.. Thought it < was only one fire that had caused the misclieif. Charles Peach deposed:—Thafc-ha noticised the smnke of. a large, fire in February on Mr Elder's land. The wind ho thought .was blowing from the east at the time, and from his subsequent inspection of the ground thought the fire burned from that direction. •Mr Bunny "called the attention of the, jury to the fact that if the fire came' from the eastward it would be taken right onto the fence which was burned, Examination continued—There was tall fern on Mr Elder's side' and,, only a little l short fern on Mr Williams' land. Had seen tho foiice, and it was, worth all, the money claimed. Thomas E. Elder deposed: He was defendant in tho present action. Remembered Mr Williams coming to him about the 'fire,' The wind was, he thought, from the east or south-east, as the smoke' was travelling nearly due north when he noticed the fire. Mr Williams had made application to him for damages after erecting the fence. He told Mr Williams that if they could agree -to the amount of damage done he would pay half the cost. The fern on that side of the fence (Mr Williams') was short, He had oortainly not led Mr Williams to believe that he (witness) admitted iiis men had caused the fire which had done the damage, In answer to Mr Beard: The case had already been heard at Tenui, and plaintiff had been nonsuited. Witness had been! satisfied that his men hadn't lighted the fire.

The Court: If you had satisfied yourself that it was not through your own uegleot or that of of your servants 1 that the five* had been caused, why did you offer to pay for it! , Witness; I thought..it ,\vas ':&. custom to pay half the cost of a fence between neighbors.---

In answer to the Court: The length of the fence stated to the Court was about right—s7 chains. ' Tho amount charged for material,.assuming the. claim to be a good one, was too high. Had not promised to pay : half, but ; a 1 portion of the damages.. '". ■' '"' His Honor checked the items stated to be iu excess by witness, and-found-that a difference was made of £2 7s Gd, and' asked if this, then, was the real cause of dispute, seeing that defendant had agreed 'to pay half the damages 1 , ' Witness sfflWd that he had only qftad/ to contribute a portion of the'(la-mages, To Mr Beard—He considered the demand was excessive. Plaintiff first led him to suppme lie would tab half, but subsequently the demand .was made for the whole. Did not lead plaintiff to understand lie held himself liable for any. Tho charge for erecting the fence he should think woo'd be about five shillings a chain.'He had'given his hanrls instructions not to burn that paddock at all. Ho did not remember whether .he. told McDonald personally not to do.so,

To'Mr-Bunny—Told his htinds gonendly not {;o bqrq tliis, p^ddtiojf. Mr Beard, in addressing the Oourt— Submitted that there was no-case against the defendant, as it was neoessary to actually prove that defendant or his ser. vant had set fire..to.the' fern, This he submitted had not been done, and that a master was not' responsible for the neglinent act of his servant if the same did acts not within the scope of his employment, and without his master's of authority, Tho plaintiff, was .therefore'not entitled to recover; -■■•■- : ' ■■• '■ >■ »-■ Mr- 'Buiiny submitted, that whatMcDonald did was. 'strigtly wji'hjn'th'o scope of his employment, notwithstanding tho restriction aa to Iho particular paddock. He" quoted to prove that masters wore responsible for the acts .of. their servants, if such acts were In his master's service. The Court hold -that if McDonald burned the ground directly contrary to Mr ■ Elder's instructions to him, Mr Elder was not llaMa, ......... Mr Bunny raised a point of law as to the liability of masters, notwithstahdins, instructions to the contrary, when the' act was part of Hi employment. His Honor tli'Mijh't tliß law was yery clear on 'the'poiut, a'lit} did! not agr.ee with Mr Bunny'.'s view of it, ' Qounsel then addressed the kry i\ length,'Mr fyvi l>qldjr»^"that' litthofjreqn his, qwn responsibility and agaiiist'tlie egress, orcjor of M,r Eldpr. This being so, the verdict \yas boqnd to be for defendant,

Mr Bunny argued that notwithstanding tht prohibition, tho defendant was liable, in McDonald set lire to tho place while carrying out his set employment, though he might have burned the place against instructions, He asked the jury to find tl]at defjndi}nt gas liable for t|ie whole amount of oVipgj! an'd' put only far jiajf, as well afi for general damage?,' ''• Eje njade numerous quotations 'ln auppurt'of his case, and claimed a verdict for plaintiff. His Honor, after summing up concisely and somewhat in favor of plaintiff, submitted thd following issues tq tho jury, congratulating them on'the simplicity of the questions:—lst', Did McDdnald light the fire which destroyed the fencol 2nd, Bid McDonald' }<gljt tljfl fire in direct contravention of qrdersf ■"'■ThJSi sis Honor oonsidejed, Was the only difficult portion of the case, and asked the jury to weigh the probabilities in this question, and not to trouble themselves with the laiyof it/ '3rd; The'kfnpurit' of'dknia'ees. HiY Honor slated tbegiim jtl'M claimed' for special daniajjes'Vas one of those bu'tis thrown'in by counsel to rdiind'matters 1 o'ff nicely, and the' 'iuryl had better'state,' if they'awarded.speejal danuge's, what items they were for. ' '",'[?;{) 1 '")&>{'■ 'U .His ]|onor'tl}en.intimated that as.ihgrs

was.no place.for the jury -to retire-to, 1 the Court would have to be cleared.:, : ; On the Court being re-opened after the lapse of an.hour, the jury returned the following verdict:—lst That the ft continuation of the fire McDonald : lit. 2nd. That the fire was not in opposition to his masters orders, and that the lire ra within the scope of his duty. 3rd. That the damages ' sustained by plaintiff amounted to £29 Gi 6d, and that nd general damagesicould baiallowed;""-'