LAW REPORTS.

Dominion, Volume 2, Issue 452, 10 March 1909, Page 4

LAW REPORTS.

SUPREME COURT. BUSH, FIRE IT'DANNEVIRKE. QUESTION OF LIABILITY,. ; 'Argument in regard to the caso between Herbert I'ryce, of Halcombo, and Alex. M'Kenzio, his manager (appellants) anil Hugh Gilbert Small, of Weber (respondent), was heard before Mr. Justice Denuistou yesterday. , Mr, Skerrett, K.C; (with his Mr;-Ostler), appeared on behalf of '.appellants, and Mr. .Wilford for the respondent. ■ , The parties to the appeal occupy adjoining properties in the Daimovirko district. Last January a filro started on property 0!i tho other sido of, but adjoining, I'ryce s holding. In order .to. save himself from being. burned out, I'ryce, by' his manager, ' one M'Kenzio, set firo to. a piece of newly-felled bush on his' own property. At "the time tho wind wa3 blowing from Small s to Pryce'a land. Two days later a g.llo blow from the opposite direction, and as a result the firo traversed l'ryco's holding, and entered Small's property, burning his "pasture, ruining fences, and destroying' 60 to 70 sheep. Small brought an action against Pryco for damages. Mr.. James, S.M., found that tho fire which occasioned tho damage to Small s property was that * which*' hacl' : heen lit by Pryce's managor. He thcreforo gavo judgment'for Small ; for £100; damages. I'rom the judgment Pryco.,and ,his. manager now •appealed. . . '• Mr. Skferrett said tho case raised some extremely interesting, and, in one aspect of it, difficult questions of. Jaw-relating to a matter of great interests to .the community. From-' Pryce's p(*nt; of/.yiow -.the,. Magistrate seemed to-havo taken from the outset of the caso an erroneous view of the legal liability , which Tested >upon -him. His Worship appeared to •■have - assumed that- if tho • - -tire which did the injury to Small's land came from l'ryco's'land 'then Tryco was pliable for tho consequences of the injury. His Honour: Has ho found that apart from where the firo originated. Mr. Skerrett, resuming, . said he was unable to say." Ho would contend that tho ovi? donco agreed (1) ythat. a .fire, (for which Pryco was in no sense -responsible), seriously threatened his property'~.and live stock, (2) that, such fire, in the* "actual event which happened, and apart from any firo by . Pryco, destroyed both Pryce's-" and* ;Small's propertios and live stock,'"aWl.(3),-that tho fighting of tho .fire A oii'.. : i'iyce's. property was it. ner step , foi", the, protection, not only is own ■ property, -but' also for the protection of his neighbour's property. Ho B asked his Honour to rule that tnere was no legal presumption which /would imposo upon Pryco the liability .'of showing that the fire which was lit upon his'property was not tho actual cause of ..tho-" damage" in question. If such presumption existed in law it was submitted that it was rebutted by tho. unanimous opinion of all' tho witnesses that the fire on Booth's'land would, under the conditions that prevailed, have swept through Pryce's' land ■ into Small's land. It was next submitted that tho fire on Booth's property, was a common. enemy, to Pryce and Small, and their neighbours, and tho rule; of was'that oiie was .'entitled to resist the approach of a common,,enemy, evon, although tho measures taken, for such resistance •might prejudice one's ■ neighbours. . Further, it was contended. that fire was a common enemy, and "as' ,a -very :usual. method of fighting the approach of a fire was by lighting a fire on the, land sought to -be protected, then the consequences of that fire • were not actionable if it were a reasonably necessary lire. - Mr. Wilford, in reply j contended that the Only question involved was whether tho file which did tho damage on Small's property came from the fire .lit by "Pryce's servant . onhis place. Tho first ground .of appeal,-'m.,; that tho fire was lit byPryiio to protect his own and Small's properties, was untenable, for even if the evidence warranted" the-infer-ence it would b J e" ho defence. There was no doubt that the fire camo. from Pryce's,pro-, perty. to Small's that .case, the doctrine res ipsa loquitur-applied. ' Counsel further contended that tho onus of proof lay on Pryce to show that it .was not the'fire lighted by him but another person's fire which caused it;he injury. The weight of evidence was, .ho submitted,' all the other way. It was further contended "by Mr. Wilford that the Magistrate found as a fact that the fire which- 1 , caused the.'- damage- was Pryce's. Tho Court, under 'th'e (authority-of Berg V. Semeloff, 24, N.Z.L.R., and Biggs v. Elias, 22, NiZ.L.R., coukl not reverse the decision of the" Magistrate on the . finding of.those facts unless following the words of the Chief Justice, ."the Magistrate was demon- , strably wrong.'"; . His Honour -said he would 'take time to consider his judgment. ' .. . V VALIDITY OF A BY-LAW, APPEAL " ; A cross-appeal case, in which the parties were Miller and Giorgi and i tho 'Hastings Borough Council, was then taken before Mr. 1 Justice Denniston. The facts in this case wero that defendants put a signboard on their verandah in a position: differing from that allowed, by tho corporation by-laws. Two informations were , laid against tb'eiS ' saiiie'offencc. . Mr. Brabant, -S.M.; -convicted'defendants oh one and dismissed tho other. ' Mr. C. A. Louglmnn, of Palmerston North, who appeared on behalf of. defendants, submitted that the by-law was'.invalid,(l) "be-V cause it.was vague in its terms; and (2) because it made the permit of tho corporation building' inspector necessary for tho erection of the signboard. He argued that the bylaw ought to allow every-person who com- '" plied with, its provisions. to erect signboards, and not to'let the'matter be at the "discretion or caprice of a corporation official. Mr. T.-F. .Martin, . for the corporation, pointed out that the present by-law differed from the ordinary borough by-lav/ in that it dealt with the property of tho corporation, viz., tho streets, and that by, tho general law it was an offence ;to placo any _ structure over a street without the permission of the council. He also contended that tho by-law could in other respects be road good by implication. , . His Honour held that' tho Magistrate's judgment must bo confirmed. ■■' As the Magistrate had convicted on- one of the informations, there was ho choice but to dismiss the other. Costs totalling £7 7s. wero'allowed the Borough CouncilIN BANKRUPTCY/ ." . CONFECTIONER ADJUDGED BANKRUPT. Upon the application of Messrs. John Rigg and Co., who were represented by Mr. Von Haast, Henry William Trotmann,'confectioner, of Lambton Quay;, and various other placf3, was adjudicated a bankrupt 'by Mr. Justice Denniston yesterday: There was no appearance on behalf of .the debtor.