SUPREME COURT-CIVIL SITTINGS.

Evening Star, Issue 10808, 17 December 1898, Page 2 (Supplement)

SUPREME COURT-CIVIL SITTINGS.

* Thursday, December 15. (ISefore His Honor Mr Justice Pennefather.) M'PIIKK V. WIUIJHT, StKI'HEXSO.V AM) Co. Mr W. C. MacGregor for the plaintiff; Mr Hosking, with him Mr Solomon, for defendants.

This case was resumed to-day, Mr MacGregor calling G. S. Munro. Witness, in answer U> M*' MacGregor, stated that lie had examined the oata in the store the previous day. In his opinion, the store was not a good place for storing grain for six months. Grain kept in sample bags would improve in condition if they were slightly green and discolored when put into the sample bags. The better quality of the oats would not improve in the store; probably they would deteriorate in the course of six months, and the second quality would also deteriorate. It would be very difficult to say from the samples what the condition of the oats had been six iuonths ago. Mr MacGregor tendered evidence as to the custom in the grain trade of sampling ,o k \ts within ten days of sale. Mr Hosking objected that evidence as t* the custom of trade was irrelevant against the terms of a written contract. • His Honor sustained the objection. Witness, continuing, said that he found some wild oats and discoloration in the bulk when he examined it this morning, which he accounted for by remaining so long in the store. After being cross-examined by Mr Solomon, a discussion arose as to further procedure, it being impossible to conclude the case during the present session. Mr Hosking, on behalf of defendants, offered to con sent to an order for the sale of the grain, the proceeds to be paid to plaintiff, subject to retention of a sum to' meet defendants' counter-claim. The case was adjourned until to-morrow at ten o'clock to enable plaintiff's counsel to consider what further evidence he may offer, and also the question of immediate sale of the grain. . Friday, December 16. (•Before His Honor Mr Justice Pennefather.) JAiIES lIOWKUi V. THE QUEEN. I Mr Sim (instructed by Mr D. Reid, jun.) ' for the suppliant and Mr J. M. Fraser j for the Crown. j James Howell, fanner, Waipiata, in the | district of Maniopoto, holder of an occupation license with right to purchase of flection ' 3, block 17, in that district, under sections 152 to 166 of the Land Act, 1892, petitions for payment of the sum ol £B7 10s under the following circumstances:—The Otago Central Railway from Wingatui to Eweburn passed the suppliant's property; that in the course of formation of the said the Government, by their servants, ' taused fye« to be made upon the line, and on 92nd January, 1897, a fire so caused on the Mm ww carelessly aiyj negligently per-

mitted to spread to the suppliant's land, and destroyed the grass and natural and artificial herbage of the land for an area of 160 acres, and burnt some of the fencing; that in consequence the suppliant suffered the loss claimed. The answer to the petition was that the Government had not by their »ervants caused any fires to be lighted, and that there was no liability for any damages. As a special defence, the Government pleaded that at the time the fires took place the line was being constructed by persons who had entered into a co-operative* contract wita the Government, and that the contractors were not the servants of the Government; and that if they were there was no carelessness or negligence. John Ferguson, in answer to Mr Sim, stated that in 1897 he was one of a co-opera-tive party engaged on the Central Otago Railway works. The party had to clear scrub. Several times the party lighted fires. Somewhere about December, 1896, the first one was lighted, and the next one about the end of January. They were lighted to burn off scrub. The inspectors of the work knew of these operations, and that one had sprea 1 and burned one or two acres of Mr Howell's grass and scrub. After that instructions were given by the inspectors to light no more fires. Cross-examined: Every care was taken, but the fire was driven by a high wind. Never saw any fire lighted by Mr Howell. As soon as the fire spread the party did all they could to extinguish it. James Howell, the suppliant, said he held some land on lease at 9d per acre from the Government. The Otago Central Railway line passed through it. He measured up "the area of his grass burned. It amounted to 170 acres for the January fire, and ten acres for the December fire. The fire has destroyed the land for grass. Only perishable grass will now grow. New grass will now have to be surface sown. A fair seeding of English grass will cost from 10s to 12s 6d an acre. The value of the land has been reduced in consequence of the fire to 5d per acre, the actual rent being 9d. Some fencing was burned, at a loss of a few shillings. Cross-examined : Witness held about 1,000 acres of land altogether. If grass is burned in January the ground will be permanently injured. The first year after the fire there was no grass, and very little the second. Before the fire the land carried one sheep to an acre, and afterwards one sheep to four acres. The loss sustained was £B7 10s. He calculated hi 3 loss by taking the carrying power of 200 acres at one sheep an acre, which would yield in lamb and wool 5s per annum per sheep to him, at a diminishing rate of loss as the grass came back. After corroborating evidence Mr Sim closed his case. Mr Fraser applied for a nonsuit on the following grounds:—That the petition was laid under the Crown Suits Act, section 37. There were three things necessary for success : (1) The suppliant must prove that the wrong and damage was done and suffered in connection with a public work; (2) that the work by which the wrong was done and suffered was constructed and revenue was being derived from it. The remedy was a statutory one, and a subject could not go outside the statute or enlarge it in any way ; and it does not apply where the work is one from which revenue is not at the time being derived (Freeman y. Regina, 3 N.Z. Law Reports). (3) It was proved that the persons who made the fire* were contractors with the Government, and the fires were not lighted for any purpose in connection with the contract, but only for clearing tussock grass; and therefore the Government were not liable.

His Honor reserved the point of a nonsuit until all the evidence had been given. Mr Fraser called Mr Arthur Stronach as to the amount of the alleged damage, and also Mr Lewis, an engineer employed in the construction of the line, as to the extent to which the fire had damaged the tussock grass. At this stage leave was given for the Crown to call Mr Cook and Mr Mitchell, railway engineers, with leave to the suppliant to' call further evidence if necessary. The case was ordered to stand over for further argument.

M'PHEK V. WRIGHT, SI'KI'HE.VSOK, AND CO

This case was resumed this afternoon. After Mr Munro and Mr M'Phee had been recalled on some points, His Honor said he thought the quality of the oats could have very well been settled by arbitration, and the proceedings had been conducted at enormous cost.

Mr MacGregor did not apply for any order as to the disposal of the oats and application of the price; and (His Honor set the case to be continued at the next February sittings. Mr MacGregor having power to call further evidence if so advised. The Court then adjourned until the February sittings.