DISTRICT COURT.

Wairarapa Daily Times, Volume 6, Issue 1592, 25 January 1884, Page 2

DISTRICT COURT.

THIS DAY,. (Before His Honor Judge Haedoastle) T. E. Chamberlain v Brown Hunt. —Claim £IOO damages destroying trees and fencing at Miki Miki, Mr Bunny for plaintiff,- and Mr Beard for the'defendant. ..'•',. : > The following jury was empanelled: 4 : f, Lang (foreman), James Macara, T, W, Tankcrsley, and T, Wagg. _ •.■ Mr Bunny, in opening the case, said his client some time ago, planted his bank of the river with wiilows to protect it from.encroachments. .In September or October last, Mr Chamberlain found thatthewillowshadbeenremoved, certain nativo trees cut down, and a temporary fence cut down, The defendant admitted to his client that lie had removed the willows, and subsequently, in the presence of witnesses, he deliberately took up some willows that still remained and threw them into the stream, and admitted that he had done a similar act on the previous occasion. The statement of defence filed was that the Court had no jurisdiction, and that tho defendant .generally denied the .allegations of the plaintiff. Mr Beard stated in answer to the Court, that he reserved his right to question tho jurisdiction, of the Court till he thought it desirable to bring it forward. Mr Bunny submitted that .this objection should he decided at once. Ho held that it was n bad'one,.as it did not reveal the ground on which it was founded, The Court-said the defendant was obliged to allege his defence. In the present case tho defendant did not set up a titlo in themselves/and could not therefore call ovideuco in support of such a title. Mr Beard asked for the bill of particulars to be amended. Mr Bunny submitted that his friend could not amend.' The Court said it would first hear the application. Mr Beard wished the plea amended by a declaratien that tho soil was the tho freehold of the defendant, Mr Bunny submitted that the Court had no power to amend the plea in the manner proposed. _ The Court said that it had granted a similar amendment in another case in which an appeal had been lodged, and the opinion was confirmed by the Supreme Court. The application for amendment in the present case would be granted. Mr Bunny said the plaintiff was taken by surprise by the amendment. The Court did not think so. The plea had been raised but had been imperfectly expressed, Mr Bunny said that if he found it necessary lie would apply for an adjournment at tho cost of tho other side. Mr Beard contended that his friend should at onco decide whether he shonld take an adjournment. , Mr Bunny applied for an adjournment tor seven days on. the ground , that he was taken by surprise, and [ that tho defendant should pay the cost t of the adjournment, i Mr Beard did not object to the adjournment, but did not admit that liis | client ought to pay tho cost of it. Tlw Court said it would not grant , the adjournment at that stage, but if it found the defendant's case was preju- [ diced it would adjourn the case later ! Thomas Chamberlain sworn deposed: lam a settler residing in the Upper Plain, and I own section No. 2G on the Waipoua Block. 1 brought it from tho Crown and have held uninterrupted possession of it from the date of pur- • chase, The defendant holds section , G3 on the other side of the river. I employed Mr Frazi to make plan pro- . duced of the land. P. 0. Frazi/licensed surveyor, at this stage proved the plan produced to bo a correct one. He had shown on the i plan the position pointed out to him by Mr Chamberlain where the willows had stood, At tho spot where tho willows stood the river had not shifted i its bed. To Mr Beard: There were no wil-j lows there when ho visited the land. Mr Beard: Does this tracing in red J correspond with your plan 1 ' Witness; No. Mr Board: Do you say it is not correct? Witness: No; I say it does not agree with my plan. Witness, continued: I fixed my survey from fences pointed out to me by Mr Chamberlain as the original boundaries. Thero was no appearance on Mr Chamberlain's scale of .the river of any dried-up watercourse. 1 "■ Mr Beard; does the deviation on this crown grant agree with your plan 1 Witness: No, I have.not shown the deviation on my plan! Mr Bunny stated that Mr Chamberlain's Crown grant was dated 1872, and Mr Hunt's was dated in the year 1880, Mr T, E, Chamberlain then continued his evidence. On his section there was no sign of any river bed. Mr Hunt's predecessor was Samuel Chamberlain. On the spot when he s«t willows he had had native trees left when he cleared the bush. The Mikimiki was a river that flooded heavily, and cut away the bank when it was | high.