COURT OF APPEAL.

Evening Post, Volume XXI, Issue 111, 13 May 1881, Page 2

COURT OF APPEAL.

« . In the Court of Appeal this afternoon, before their Honors the Chief Justice, ana Justices Johnston and Gillies, argument on demurrer in Andrew and Jessie Mercer v. the Queen was commenced. Messrs. Stout, M'Gregor,-and M'Dermott appeared for tho plaintiffs, and Mr. Haggitt, Crown Prosecutor, in Bupport of the demurrer. The petition set forth that on the 21st August last the suppliants were driving from Broad Bay to Dunedin along Beach Road, and when near Grant's Braes a portion of the telegraph wire, which was hanging across the road, caused the horse to take fright, and the suppliants, along with the horse ana cart, were thrown over a bank, and Jessie Mercer received serious and permanent injuries. The petition further asserts that the telegraph line was the property of the New Zealand Government, and it was their duty to maintain it in proper order ; and that the grievances complained of were caused by the negligence of the Government and their servants. It is also assorted by Andrew Mercer in a second count that ho has lost the "comfort and services of the said Jessie Mercer, and will bo permanently deprived thereof," and that he has "incurred expenses in nursing her and for medical attendance and other necessaries." There is a third count which sets forth that Andrew Mercer was seriously injured by the accident. On the first count (injury to Mrs. Mercer) the Buppliants seek toresovcr J61000 ; on the second count (deprivation of Andrew Mercer of the services of Mrs. Mercer) JJ7OO ; and on the third count. .£3OO. To the petition, Mr. B. C. Haggitt. on behalf of tho Crown, demurs— (1) That the Queen cannot be Bued by petition for negligence ; (2) that a petition will not lie to recover money claimed by way of damages not arising out of contract; (3) that the petition does not set forth any claim within the meaning of the Crown Kedress Act, 1871, or Amendment Act, 1877; (4) that the claim does not appear to bo founded on, or to have arisen ont of anything done under the authority of the Government, or for which the Government would be responsible it' they were private subjects ; (*) that it doe« not appear that the Beach Road is a public highway ; and (6) that it does not appear what duty the Government and their servanti neglected, the neglect of which led. to the accident. Argument was proceedwhen we went to press.