DISTRICT COURT.

Wairarapa Daily Times, Volume XIII, Issue 4296, 16 December 1892, Page 2

DISTRICT COURT.

(Before His Honor Judgo Robinson),

THURSDAY,

The following evidence in this case was taken after we went to press yesterday ;

Joseph Wyatt, settler, residing at Kaiwaiwai, remembered the fire- in Phillips'bushwhiohocourredin March Saw the fire start in Phillips' and Cundy's, The fire in Cundy's started about twenty minutes before the fire in Phillips', They were quite distinct and had no connection. Was milking iat the time of the (ires' starting. Cundy's was about a mile away and Phillips' forty chains. Had seen no fire go from Cundy's to Phillips'. Saw a (ire first, and then distinctly saw a man light Phillips' bush. The man then walked to Fugo's boundary and lit again, The man lit three fires and then disappeared behind Fuge's bush, Could not see who the man was, .As far as witness'knowledge went this was the commencement of the fire. Had subsequently helped McMillan to fire the half-burnt patches, Thought the burn good where properly felled. The burn was the best lie had seen in the distriot.

By Mr Hislop: Had not a great deal of experience regarding biißh fires, There were fallen trees in all directions between himself and tho firo, If Fuge swore he was standing in his block when the fire started he would bo swearing an untruth because witness had seon Him in his (Fuge's) own stookvard, Norah Gundy, wifeof the defendant, gavo evidenco corroborating her husband's statement as to his movements on the 4th of March, and also as to McMillan's visit.

At tliia stage the Court adjourned. On tlia'Courb recurring, John Fenwiolt, the next witness called, gave evidence to the effect tint he saw the smoke of the fires before alluded to about four o'clock in the afternoon. Saw a body of smoke, but could not say where it started. Saw fire crossing Phillips' hush. It was not coming straight from C'undy's to Phillips', Had been waiting to burn for Mr Phillips, Had helped remove the cattle out of the bush and to light all ono side of the block after the firo had started. Saw the whole of Phillips' bush and consider that itwaa a good burn, taking the season into consideration. Had never seen a better burn in the same locality. Tho larger proportion of the land was wet until the last season or two and had never seen the land dry in his life. Some of the felling in the bush was good and some bad. There were patches of whiwhaka right through the bush, Considered the felling had something to do with the burn, Had spoken to Phillips on several oc« casions, and ha always appeared perfectly satisfied with the burn. MoMiU lan had also said the burn was a good one. Draining work had been going on ever since the burn, There wero about 2,000 sheep now on the property.

Mr Hislop subjected this witness to a vory lengthy cross-examination but was unable to shake his evidence, John 'looker deposed he had resided in tbo neighborhood of Mr Phillipß' property from fifteen to twenty-five years. Had been over a portion of the property, ond considered it was a good burn for tho particular locality, Had never seen a better in the locality, John Nix, an adjoining neighbour of the parties in the aotion, stated he had been in the locality all bis life, and had seen all the burns round about, Had never seen a better burn than tbe ono at Phillips', in pine and wbiwbaka bueb,

John Ouudy, theiiexbwitness callea, on oath denied having Bet on firo his own or his brother's bußh. |Had no ' knowledge of how it caught fire. Had no intention of burning Mb bush on the day of the fire, Wai good friends with his brother and did not think he would burn without telling him. Dy. Mr Hislop : Did not know that his brother was anxious to burn, Had had bad burns on two previous years, Both bis and Ms brother's burns were bad.

By Mr Pownall i Mr Phillips' burn was a good one, y

Frank Goodrick gave evidenco to the effect that he saw the fire start on the 3rd of Match, but could not say where it was at first. Afterwards found it was Walker's! Subsequently saw at a distance a fire burst out in Phillips' and Cundy's. Tho wind was about west-south-west, Stood and: watched and saw fires lit all along Phillips'line by some person atregular distances, Was at the time sitting in a bu?gy at tho junction of 'Phillips' and Kivena" lines. Would take his oath that no fire was in Cundy's when he first noticed the men firing Phillips', Phillips'bush was in a big blaze.

By Mr Hislop: Had never been up at Phillips' since tho bush was felled. was not blowing so hard aa some people saidt Smoke from Cundy's was crossing the road into Phillips' at about a quarter past four. This closed the defendant's case.

• W. Q, Williams recalled, swore that it>as impossible for Mr Wyatt to m along Phillips'line from his Btockjfai'd, Heoqlyjqdgedtathei'oad,

ByMrHislop: Where tbfi trees did not preclude from seeing through the bush the flax did. '

J, Fuge, re-called, said tho nature of the growth on bis land *as grass and a native weed. Did not think any person standing in Wyatt's stockyard could see to where the fire was Btartt>d on account of the distance and the fallen trees and scrub. No moreevidenco was offered, J Mr Pownall for the defence and Mr' Hißlop for the plaintiffs, addressed llio jury at considerable length, and after His Honor's charge the jury retired at a quarter past BtX. ■■•,' _ After a short reiirementtbe followingverdict on the issues was returned ; . 1- Did the defendant light a fire or cause a tiro to be lit on his land? No.

2. Did the fire spread from defendant's property to plaintiff's ? No'. 8. Did the plaintiff Buffer any damage ? No,: His Honor gave judgment for, the defendant with costs £BO 9s4d. FRIDAY. Official Assignee v. Izabd. This was a claim brought to recover the amount of an alleged I insurance of £l5O stated to have been effected by D. 8. Papwortb. sinoe bankrupt. The following jury was empannelled: Messrs P, Frazi, (foremanL T. P. Lett, W. Neill, and L'W Copping.

David SmjthePapworth, the first witness called, stated that ho filed a petition of bankruptcy on (he 19th of October. MrH.S. Izard had transacted his legal business prior to Maioh last. Had purohased from S. E. Gapper a threshing machine for £125 in March, giving a Beourityover the machine and promissory notes for the amount. ' *

Legal argument enatied over llie production of the deed of mortgage, His Honor ruling that it must bo produced. Mr Skerrelt objeoted to evidence of conversations between Mr Papworth and MrGapper. Examination continued; Went to Mr Izard übout insuring tho machine. Subsequently received a note containing rates of insurance, from: Izard. Went to Mr Izard's office a few days after, but he was not in. Mr Izard's olerk (Mr Bees) was in and tola witness he could insure tho maohine for | him, Mr Izard had previously asketfei witness to insure his flour-mill. Had never insured anything in the shape of a threshing machine before. Told the clerk that Mr Izavd had already sent him the rates, and the clerk stat» ing that the amount was right, witness gave a oheque for £1 10.. The cheque was marked'" insurance." A receipt was given by Mr Bees for the amount. The maohine was destroyed by lire on April; 23rd. Mr Izard represented the North German Fire Insuranoe Company. The name of the Company was painted on the outside of Mr .hard's office. Had no communication with .Mr Izard between the 12th and 23rd of April. After the , maohine was destroyed went to Mr Izard's. office after seeing the machine, This was on the 25th of April. Mr Izard said lie had already heard that the machine was destroyed and further stated that he had written to Mr Triogham, at Wellington, advising tho office to pay the olaim. Drove out with Mr Izard to Bee the wreok, which was of praotical value, on the afternoon oftEeP 25th. Mr Izard had said it would be as well to leave someone in charge of the machine, and by Mr Izard's instructions William Bndd was placed in charge. Mr dapper oame to Greytown on the 26th to see witness about the machine, Went with MrGapper to Izard's offioe on the 29th. :Mr Izard said he had taken witness' money in goodfaith, and considered the machine was insured, and that in cousquenoe of his correspondence with Mr Tringham being unsatisfactory he had been obliged to go to Wellington, The outcome of tho interview, Mr Izard saidj was that ho had resigned the agenoy of the Company, and anything further with regard to the insurance would have to bu sent to tho office direct, Mr Izard also said that ho intended retaining all tha books and-papers oi the company as he might have to defend an action himself, He advised witness to taka legal advice. The plaims produced were sent to the Company. The wreok of the maohinei was ultimately taken to GreytowtfP and placed on witness' properly. Was owing Mr Izard a bill of costs at the - time, and was ultimately sued for the amount. The premium was not ■ credited in the bill sent. No credits wero given,

By Mr Skerrett: I treated Mr Izard as agent for the company, and for myself, I thought 1 wa» paying the premium virtually to to tho agent'for the North German Company, and to' my solicitor. If Mr Izard had charged me 6s 8d for effeoting the premium I should havs thought it hard. I can't say whother I should have paid or not. I did not care what company Mr Izard repre. sented. Even if Mr Izard had not represented a firo company I might have gone to him. Will swear I did not know anything about a proposal being necessary before an insurance' was effeoted. Knew a policy wan issued and knew it was necessary to pay the premium. I did not kno.w that Mr Kees had nothing to do witMt. Mr Izard's insurance business. WbbT not in Greytown ou the afternoon of the 13th and Hth April, Might have been in the evening, I will swear that I did not speak to Mr •< Izard between tho timo of in-, suring tho machine and its being destroyed. Mr liard must nave mado a mistake if be says he did speak to me, Do not remember speaking to Mr Keen on Easter Tuesday. I may possibly have .• dona so. I stayed behind with Mr Izard after Mr Gapper went out of the room at the intervioTf with Mr Izard toaskbim whatlwasto' do, I assigned all my interest in fti ß in6uranco to Mr Gapper while I was in the hospital. Thiß waa before I was bankrupt. By Mr Bunny: I knew that the Company repudiated the claim, because the premium had hot been sent down. Mr Izard told me bo on the 20th Apail. Mr Izard eaid he did not know that the risk was prohibited before, and had taken the money in good faith and considered the machino insured. Mr Gapper sued me for £\W. due on promissory notes just befdra my bankruptoy.

Samuel E. Gapper, machinist, of Masterton, gave evidence of the sale of a threshing machine to Mr Pap> worth, Approved of the machine? being insured with Mr Izard. Was under the impression it was I insured, Found out on the 25th of 'April that the machine had been destroyed. Went to Greytown on Ihe 26th moV saw the wreck. Pepworth gave witness an order oh tho iinsurance. On the 28th went with jPapworth to Izard's office. Was introduced to Mr Izard as the person. in v.'Uoao favour the machine was JB"

sured. Mr Izard said wbat be hud done was in good faith. He had taken the premium for -insurawce and considered tlio raaohine covered. Had seen the thing was a lot») wreck and had written to tlio Com- / pany asking them to forward a oheqne. Sir Izird said the answer was not satisfuotory and he had gone •to Wellington about it. After he«i- / tatioii, Mr Izard fuither said that he ""& might aa well tell them that his inter view with Mr Tringhani bad bnded in bis throwiug up tho agenoy. By Mr tSknett; 'J'be deed piodnced was prepared by Mr Fapworth's instructions. Did not regard the insurance money as bis. It would belong to the Otlicial Assignee. At this stage the Court adjourned,