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DISTRICT COURT, WESTPORT.

(Before his Honor Judge Harvey.) Monday, November 2. RILEX V. Hr/GIIES. Mr Fisher and Mr Pitt for plaintiff, and Mr Shapter for defendant. The jury called were Messrs Etaveneaux, Excell, Earwig, Fernandez, Faris, Field, Finch, Fleming, Gilbertson, Gcrrie, and Gibson. Previous to jury being sworn counsel for plaintiff pleaded that in terms of 117 th rule of procedure the defendant had not niven seven clear days notice of intention to apply for jury, arguingthat the seven days should" be clear clays, exclusive of days of service and day of hearing. Mr Pitt argued that in the computation of time the day of service might be excluded and that of the act included. Notice was given on the 17th, and the Court as originally called being fixed for the 21th. After argument by counsel the Court gave opinion that the necessary steps ha 1 not been taken, but expressed disinclination to hear the case without a jury, as one in which the verdict of a jury would be more satisfactory. Afterwards, on withdrawal by defendant's counsel of notice for jury, the Court decided to hear the case, and the jury was dismissed. The case for plaintiff was as follows: Claim to recover £l7O damages, in that the defendant on the 26th May last maliciously assaulted plaintiff and gave him in custody of a policeman, and caused him to be imprisoned in the police office, Westport, on a false charge of having maliciously demolished a fence at the rear of section 182, Coal Quay Reserve, Westport, such section being the property of plaintiff; and for special damages £26 6a 4d, Court and

legal expenses aud demurrage of vessel Result. The grounds of defence were that the act complained of was not that of defendant, but exercised under the Justice of the Peace Act, that the section on the dato in question was in the occupation of defendant, who had erected a fence thereon which Riley had destroyed Samuel Riley, plaintiff, sworn, said he was master and owner of steamer Result. Formerly was in partnership with Peter Seaton. They had taken up sections IS2 and 183 on the Coal Quay Reserve, and taken out business licenses as partnership property. On dissolution of partnership it was decided to take one each of the sections. Plaintiff took 182 and Seaton 183, but without agreement in writing. Subsequently plaintiff paid rent on section 182 to the Provincial Government (receipt produced). The Court: What tenure is there for the land. Mr Shapter: There is no tenure except that of occupation. Holders of sections pay £1 each for sections, and the Receiver of Revenue takes all the money offered on behalf of the Provincial Government. The Court: The receipt produced says "Received £1 for the benefit of whom it may concern ;" this seems a most extraordinary proceeding. Another receipt is differently worded. Examination resumed : Plaintiff paid municipal rates for years 1873-74 in respect of the section IS2, rates for 18 months having been collected in one year. Both sections were fenced together, but plaintiff did not occupy his. On May 19th plaintiff found that defendant had put up a dividing fence between the sections and claimed to having bought section IS2 from Peter Seaton. Defendant in conversation offered to give plaintiff £5 and section 183 to say no more about it. This plaintiff declined, aud afterwards said ho should pull down the dividing fence, whereupon defendant threatened to give him in charge. The Town Clerk afterwards showed entry in the Council books to both plaintiff and defendant, showing that rates had been paid by plaintiff on section 182. Next morning (the 27th) plaintiff serred defendant with notice to remove boards fixed to fence, or in default plaintiff would do so at his expense. Defendant took no notice of it. and plaintiff gave him till dinner-time of that day to think over it,, saying that after "that time he should pull down the boards himself if plaintiff did not previously remove them. Subsequently plaintiff kuocked down the boards, and defendant told him to " knock off," but plaintiff refused. A policeman iu private clothes also came and told him to " knock off," but plaintiff still refused, and Hughes told the policeman to take plaintiff in charge. The policeman came on to section 182 and took plaintiff in custody and marched him to the watch-house. The same afternoon he was brought up before MiHumphrey and remanded until the following day, having to find bail before obtaining his release, and also to pay bail fees and fee to counsel. On the following day the case was again heard, and plaintiff was discharged. Had not since sold the section or given anyone right to exercise ownership thereon. By Mr Shapter: The groun i was originally pegged out under bus'ness licenses. I applied under those licenses for protection for both sections, one in Seaton's name and one in my own, Section 183, at that time was in Seaton's name and 183 in mine. No business license was ever taken out in our joint names. One was taken in each name. I don't recollect being asked by the Borough valuers whether I was owner of Section 183. I might have been asked. The surrounding fence was put up by myself and Seaton jointly. Have occupied the sections for trifling matters. They were granted to me firs; by the Resident Magistrate as a coal depot upon the same terms as other town sections were then granted. In tiie written agreement for dissolution of partnership no mention was made of the sections. Had, in knocking- down the fence knocked down a fowl-house and also got some m»n to move a closet off section 182. Was remanded by the J. P. on my ovn application. C. H. W, Bowen, Cierk of the Court, produced papers and information in the case Hughes v. Riley and gave evidence that plaintiff in present action had heen brought up in custody and the case" ultimately dismissed. By Mr Shapter: Have received rent from section - holders on the Coal Quay Reserve. In one or more instances had received rent from more than one person. Had received rent, for this section from Riley, Seaton, and Hughes, but don't know who the section belongs to. Have received instructions to give receipts for all money thus offered " for the benefit of whom it may concern." Had received first receipt from Samuel Riley, 24th October, 18/3, the second from ' Peter Spaton, June st.li, 1874, the third tent was paid by John Hughes on the 18th September, 1874. Subse quently Riley pnid another rem. In taking Colliery Reserve rents witness merely asked payees the numbers of and the sections they wished to pay for put such numbers on their receipts. George Carruthers, rate collector for the Westport Borough Council, produced rate book in proof that plaintiff had been rated for section 182, and Seaton for 183, and proved payment of rates by plaintiff for section 182.

By Mr Shapter: The notice of payment of rate being due merely states for property in Wharf street, and does not show the number of section. By Court: The information as to sections was compiled by valuers and the rate book is made up from their return. The notices give the index numbers of rate book, but not the numbers of sections as shown on plan. W. A. Kiely: Sub-Inspector of police, produced charge sheet of 27 th May last, and watch-house book showing signature of John Hughes as prosecutor in the case Hughes v. Riley Constable John Rendell, proved arrest of plaintiff at request of defendant who had called him off his beat for that purpose. J. B. Fisher, Solicitor, examined by Mr Pitt: Had been sent for by Riley to defend him in the case Hughfis v. Riley, and had applied for and obtained a remand on the first day and also appeared on his behalf on the second day when the case was dismissed. Plaintiff paying him costs and charges £5 18s 4d. Subsequently witness gave Hughes notice of action in the present suit. Mr Pitt gave notice of withdrawal of item of claim £2O for demurrage of vessel Result. For defence Mr Shapter called John Hughes who produced receipt dated 20th April, 1874, for £lO money paid for section, of which Seaton gave possession to witness who at once commenced work thereon, putting up dividing fence, fowl-house, and watercloset. Plaintiff had subsequently knocked down the fence and had continued ever since to pay periodical visits to the section and knocked down anything in the shape of a fence. Had before giving Riley in custody asked him to desist. By Mr Pitt: Knew previously to the purchase that the two sections belonged to Seaton and Riley, and took Seaton's word that the one he sold for £lO was his own. Recollect looking in the ratebook with Riley but could not say that he noticed that Riley was rated for 182 and Seaton for section 183. Had merely come up to oblige Riley. If. Riley and Carruthers say the figure.* were pointed out he, witness, was J willing to abide, by their statement. Had known Riley for some time and respected him as a careful and substantial man. But he had caused witness considerable annoyance. Peter Seaton : Had become entitled to section 183 under business license, applied for at the same time as Riley applied for 183. Had never transferred that right or told Riley that he would give the section up to him. When the dissolution of partnership was made it was merely decided that each should take his own section as marked by the Government pegs. Five or six months after Riley and witness had a conversation, and Riley asked if it would mak6 any difference if he took section 182. Witness replied "Is not your own as good." Riley said " Yes," but he thought 182 would be handier to the wharf. Witness said " We'll see about it if you want it for that purpose," Nothing else then transpired, and shortly afterwards the wharf was washed away to sea. Nothing else ever pass id between them about the exchange. By Court: Did not know that Riley was rated for No. 182. There was no number of the sections on the receipt for borough rates. No one ever came to witness for information as to ownership of sections, and witness did not know what section he was rated for. This closed the defence. Mr Shapter addressed the Court, and questioned whether, under the exorcise of the Act by virtue of which plaintiff was given in custody, defendant was liable for the injuries alleged to be inflicted. Reviewing the evidence as to ownership, he pleaded that the only right of ownership was that of occupation, that his client held a possessory right for the time being, and that under the Malicious Injuries to Property Act had a perfect right to give Riley in charge for wilfully damaging his property. The erection * of the dividing fence by Hughes at his own cost was not disputed, and no assignment of previous right to the suction from Seatou to Riley had been proved. Supposing Court to consider his client liable to some damages, then the granting of costs would be at the discretion of the Court, who had special power, under section 70of the Act, to make the same dopendeut on judgment of the Court, whether the defendant, in giving plaintiff in custody, had believed he was actiu<* iu strict accordance with the law or not. Mr Pitt combatted this argument as not applying, except the defendant had tendered amends, which in this caso had not resulted. The simple issue of the case was whether the plaintiff had been assaulted aud imprisouod. These facts were admitted, and the question arose of justification. The evidence of Seaton corroborated that of Riley that the ownership of the latter in section 182 had been fully recognised by Hughes before the assault was committed. Tho only justification the defendant could maintain was a demonstration to tho Court of wilful and malicious injury by the plaintiff, and of which no proof had been given. It was perfectly competent to the defendant to havo obtained a decision under other proceedings, without adopting the extreme course of giving Riley in custody. The action of Hughes had been impulsive and oppressive, and Riley was entitled to reasonable damages, there having existed no reasonable ground for sus*

pecting the plaintiff was not acting on the assumption of a honafulc right. At this stage the Court adjourned. On resuming, defendant in reply to the Court, said at the time claim was made by Riley he informed him that be (Hughes) bad bought from Seaton and asked Riley to wait until Seaton returned from Mokihmui. The £5 offered was in excess of the price paid by Hughes to Seaton. Defendant had told Kiley that ho held a receipt from Seaton. The Court in giving judgment said the act of assault being admitted the whole issue narrowed down to a question of justification. Did the plaintiff unlawfully and maliciously break down the fence, or had he any grounds to suppose he had a right to do so. If he bad no right he did it unlawfully and if unlawfully also maliciously. '1 he evidence showed no right at law to the section as belonging to either party. The only colorable right being occupation, which it had been shown the defendant held. It had been asked that one party should be left to his legal remedy and the other not. But why should not the plaintiff have brought an action of ejectment against Hughes if such was the proper course for Hughes to follow. In the opinion of the Court, Riley knew that he had no colorable right to the section and bad gone in with a strong hand to obtain forcible possession. A verdict would be given for defendant with costs of Court, £l2 18s Gd. Ceoss t. White. Claim to recover damages £2OO for breach of contract. Before opening the case Mr Shapter drew attention of the Court to the fact the summons had not been served in sufficient time, having been served only on the morning of the 10th October, for hearing on tho 24th of October, the original day of hearing. Hence 1-1 days had not expired after day of service. The Court ruled that the form of summons must be adhered to and held the technical objection as fatal to the hearing of the case at that present sitting. Ruled that case could not be heard until the next sitting of the Court. Order made for payment of £2 to the jury. IN BANKRUPTCY. Charles Seymour.—Application for discharge. Bankrupt appeared in person. Mr Shapter applied to appear for opposing creditor R. Carne, but permission was withheld owing to creditor not having proved his claim within prescribed time. Bankrupt in examination said he had no present regular employment. Had contracted his debts four years ago. Games debt of £25 was incurred while applicant had a partnership interest in a dam. Braithwaite, his partner in that speculation contracted the principal portion of the debt. £lO owing to William Morris was for money borrowed to purchase a mining share which did not turn out any good. The debt owed to Linley was for half share of accounts incurred on their joint behalf. The only assets were two small debts for money pf.id on calls for another party and money lent. Order granted. Be George Falla.—Mr Fisher, and with him Mr Pitt, for applicant ; Mr Shapter for opposing creditors, Hooper and Dodson. In reply to question from Court, Counsel for applicant explained that a bill of sale for £'2ooo held by Hooper and Dodson had been attempted to be put in force, and that to protect other creditors applicant had submitted to be declared bankrupt. The trustee's report showed that ihe final statement of affairs had not been filed according to strict rules of Court, and that time had not been afforded Trustee to become acquainted with details of the estate. Mr Shapter pleaded that sufficient special gazette notices for intention to apply for order of discharge at the present sitting had not been given under section 111 and 118 of the Bankruptcy Act, and that for other reasons he had been instructed to apply t for adjournment of final hearing until the December sitting. The Court, to peruse papers in the case, adjourned sitting until to-morrow morning at 10 o'clock. Be Excelsior Company.—On application of Mr Pitt, and by consent of Mr Shapter, for liquidator in this estate, a formal order was taken for examination of liquidator under section S9 of the Mining Companies Act.

Permanent link to this item
Hononga pūmau ki tēnei tūemi

https://paperspast.natlib.govt.nz/newspapers/WEST18741103.2.10

Bibliographic details
Ngā taipitopito pukapuka

Westport Times, Volume VIII, Issue 1225, 3 November 1874, Page 2

Word count
Tapeke kupu
2,794

DISTRICT COURT, WESTPORT. Westport Times, Volume VIII, Issue 1225, 3 November 1874, Page 2

DISTRICT COURT, WESTPORT. Westport Times, Volume VIII, Issue 1225, 3 November 1874, Page 2

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