THE COURTS.

New Zealand Mail, Issue 816, 21 October 1887, Page 22

THE COURTS.

SUPREME COURT. CIVIL SITTINGS. Monday, October 17. (Before his Honor Mr Justice Richmond.) MUIR AND FINLAY V. SAUNDERS. This was an action to recover the sum of L3OO in respect to damage done to certain land, the property of the plaintiffs, on Clyde-quay, by works executed by the defendant. Mr Gully appeared for the plaintiffs, and Mr Skerrett for the defendant. The statement of claim set forth that in March, 1885, the plaintiffs (who . are the owners of a section of land with frontages to Clyde-quay and Roxburgh-street respectively) agreed to allow the defendant to remove earth from the property on condition that he would do so in a workmanlike manner, and within a reasonable time, and would leave the allotment in a fit condition for building purposes or for sale. The plaintiffs allege that the defendant has wholly failed to complete the excavation and removal in the manner agreed upon, and the value of the section has in consequence greatly decreased, and they therefore claimed L3OO damages, either in respect of the deterioration of value or, as alternative causes of action, in respect of the trespass, or the use of the section.-

The defence was to the effect that the permission to remove earth was granted to the defendant without any stipulation or condition whatever on his part, and he made no agreement as to the time or manner of removal; that the excavation was done in a proper and workmanlike manner. With reference to the claim for trespass, use, and occupation, the defendant sets up the permission granted, and further, he relied on the statute of frauds, as the agreement ought to have been in writing. In opening the case for the defence, Mr Gully said that the agreement between the parties was a verbal one, and there was to have been no monetary consideration for the use of the soil removed, hut the defendant was to have levelled the ground off with a reasonable depth of allotment to Roxburgh-street. After Mr Gully had addressed the Court, the action was adjourned until Wednesday, in order that his Honor might visit the land in question. The Court then adjourned until 10 o’clock next morning.

Tuesday, October 18. (Before His Honor the Chief Justice.) HOUGHTON V. WILLIAMS. This was an action for the recovery of L2OO, damages brought by Mrs Mary Ann Houghton against Captain W. R. Williams. The statement of claim set forth that in April, 1885, the defendant entered upon certain land belonging to the plaintiff, in Willis-street, and removed large portions of the soil, and also deprived the plaintiff of . the means of access to portions of the property by removing and converting to his own use certain wooden steps, thus causing a depreciation in the value of the plaintiff’s land. In consequence of the removal of soil, the residue of plaintiff’s land was deprived of its natural support, which led to a landslip. The plaintiff further alleged that the defendant promised to make a proper and convenient set of steps, which should form a mode of access as convenient and commodious as was formerly provided, and also to make good the damage caused to the land, but that he has neglected, and still refused to do so. Owing to the dangerous condition of the steps the plaintiff met with an accident in May, 1885, and in consequence the plaintiff had entailed considerable expense for medical attendance. The plaintiff claimed damages for the diminution and depreciation in value of the land, and further states that she had lost tenants, and experienced difficulty iu letting her houses, in consequence of the defendant s acts. The defence was to the effect that the land in question was not the property of the plaintiff, and was a public road. The

defendant, therefore, denied that the removal of the soil from the land was unlawful, or that the property was depreciated by such removal, or that the landslip was caused' by any of his acta. With , reference to the steps the defendant,alleged that the original flight was crooked, rotten, and steep, and that he submitted to the plaintiff plans for the construction of new and more convenient ones, of which she approved, and thereupon he removed the old ones, but when the new work was nearly completed the plaintiff forcibly interposed and prevented its completion, insisting upon another plan being followed. The defendant further pleaded that he was willing to construct the steps in a workmanlike manner, in accordance with the plans formerly agreed upon. Mr W. B. Edwards appeared for the plaintiff, and Mr F. W. Pennefather for the defendant. Edward H. Beere, civil engineer, gave evidence that he had made plans showing the position of the land before the steps were removed, and of the present position. About, 10 yards of earth had been removed from the bottom of the steps, the effect of which was to make the access to the plaintiff’s property very much steeper. The steps that had been constructed by the defendant were not put up in the same way that the original ones were. There were a series of sharp turns in the steps without any landing, which made them dangerous, and very inconvenient for people going up and down. By Mr Pennefather: The first flight of the old steps was in a fair condition, but the top of them were not so good, although they were not bad enough to make them unsafe. The steps were very roughly put up. The old steps started at about the same level as the present ones. There a hollow about half way up the old steps, which had been filled up with earth. At the top of the incline there were several steps steeper than they were now, although the present steps were in the same position. Tomake the present steps the same grade as the old ones, it would be necessary to begin them nearer .Willis-street. Andrew Young, who had resided on theplaintiffs property some years ago, and had some considerable experience of the old steps, stated that the access then was comparatively easy to what it is now, as the steps were now very much steeper. As far as he could recollect the old steps took their rise about 15ft nearer Willisstreet.

Mary Ann Houghton, the plaintiff, deposed that since the removal of the steps by the defendant, the approach to her property was very dangerous. The defendant had removed the old steps to the adjoining section. Owing to the narrowness of the present steps, witness had had a great many falls, and the result of one was that she had been laid up for six weeks. She had been informed by Dr Hutchinson that she would suffer from the effects of it as long as she lived. Since the approach to the property had been altered, witness had not been able to get so much rent, and had experienced great difficulty in letting her houses at all. By Mr Pennefather: Plans of the new steps had been submitted by a Mr Mitchell, which showed the first flight of steps as they are now, but she had positively declined to have them. Was not at home when the work was begun, being away visiting her mother, who was ill at the Hutt, and on her return she found that the road to her houses had been dug away, and a part of her fence had been pulled down. Witness prevented the men from going on with the work, and shoved two or three of them over. Witness was never satisfied with the work, and was always complaining about it. Had never expressed approval of. the way in which the steps were going on. Dr Hutchinson, J. Edwards, contractor, and T. W. McKenzie also gave evidence, the two latter witnesses testifying to the difficulty of the present approach to the plaintiffs property as compared with the former one. Matthew McCredie, commission agent, deposed that he had known the property for a number of years. Until the alteration in the steps the property was easy and commodious to approach; while he considered the present access dangerous. Estimated the damage done to the saleable value of fhe property by the altered access at Ll5O. • Alexander Stewart, commission agent,, deposed that he acted as agent for the plaintiff in letting the houses. No complaints were made before the steps were altered ; but many were now made, and consequently greater difficulty was experienced in getting tenants. Considered the damage done to the saleable value of the property was between L3OO arid L4OO. Mrs Hose deposed to seeing the plaintiff fall at the bottom of the steps in May, 1886. The plaintiff was laid up for about a month with a bad leg, the result of the fall. Henry J. L. Augarde, commission agent and valuer, gave evidence that the plaintiffs property had considerably depreciated in value owing to the altered approach. Phillip Barron and Henry Lepper gave evidence to seeing the plaintiff prevent the workmen from excavating her property. John “Hose, Mrs Underwood, Mrs Bradbury, Wm. Jamieson, R. C. Irvine, Robert Sutcliffe, and Maggie McQueen having given evidence, the plaintiff's case closed. The case was then adjourned until 10 o’clock next morning.

" r ' Wednesday, ’ October 19. (Before his Honor thfe'Chief Justice.) HOUGHTON V WILLIAMS. This case, in which Mrs Mary. Ann Houghton sought to recover from William Robert Williams the sum of L2OO m consideration of damage; done to the tiffs property, was resumed at 10 ; o clock. ’ E. H- Beere, civil engineer," was recalled by Mr Edwards (who appeared for the plaintiff), and gave evidence in explanation of some of the evidence given by him on the previous day, after which the plaintiff 7 s case closed. Mr Pennefather, in opening the case for the defendant, read a large amount of correspondence which had passed between the parties, and then called evidence as follows, ~ , Robert E. Evendon deposed that he had considerable experience in building staircases and steps, and he considered that the old steps on the property were inconvenient and unsafe. From the manner in which they were constructed they were very dangerous in wet weather. Witness was employed in making the new steps for the defendant, and he did not think it was possible, starting from the same point at the bottom,' tp have the steps designed better than they were. Had constructed the steps from plans supplied by Mr Mitchell. • The plans had since been lost. Had explained to the plaintiff in a general way what was going to be done shortly after the work was commenced, and she expressed approval. The opinion in witness mind was that the plaintiff was perfectly satisfied with the new steps. Witness, according to his agreement, was bound to put the bottom of the steps on a solid foundation, and he accordingly removed a -sufficient quantity of the soil to admit of this being done. The plaintiff objected jn a very violent manner to the earth being cut away, and prevented the laborers employed going on with the work. However, on witness explaining to the plaintiff that the soil was only being taken away in order that the steps might be put down, she allowed the work to go on. By Mr Edwards : Was certain that the plaintiff was present when the work was first From the beginning to the end of the work witness had never known the plaintiff to object to the work being earned on except on the one occasion, when lie explained matters. Robert Durham, civil engineer and surveyor, gave evidence that he had gone up and down the new steps several times while making a survey of the property, and he considered the design very fair. Did not experience any difficulty in going up or down. By Mr Edwards - Had not taken particular notice of the steps. William Robert Williams, the defendant, deposed that the old steps were not convenient. They had been altered because witness was building up to his boundary of the land. He had instructed his surveyor to measure everything, so that in constructing the steps they would not interfere with anybody else’s property. Had instructed Mr Mitchell to prepare plans of the-work, which were the ones that had been lost. These plans showed the steps as they now were. Had not the slightest idea that the plaintiff objected to the plans. -It was not until the steps were nearly completed that witness heard that the plaintiff objected to them. Not more than two or three cartloads of earth had been taken away from the excavation under the steps. The cross-examination of the witness was postponed until next morning, the case being adjourned at 5.40 p.m. 1 until 10.30 a.m. next morning. - (Before, his Honor Mr Justice Richmond.) MUIR AND FINLAY V. SAUNDERS. This was an adjourned case from Monday last. The plaintiffs claimed L3OO for damage alleged to have been caused to their °land by excavations made by defendant as a contractor. Mr Gully appeared for the plaintiffs, and Mr Skerrett for defendant.' The pleadings in the case were published on Tuesday. Evidence was taken at some length on both sides, and his Honor reserved judgment.

BANKRUPTCY COURT. (feefore his Honor Mr Justice Richmond.) APPLICATIONS FOR DISCHARGE. Re William Standem—Mr Fitz Gerald for the bankrupt, Mr Devine for opposing creditors. The Assignee stated that the hook debts, estimated atlffO, had realised LSO. The bankrupt, in answer to Mr Devine, said that his mother held a life interest in his.farm, he having an eighth .share in the reversion. He had given a bill of sale for the rent, not having paid -Any rent for some years. He made a composition with his creditors three years ago, and paid 7s 6d in the pound. He had been forced into the Bankruptcy Court by the action of Mr Wright, who promised to renew his bills, but did not do .so. He had no interest in the business now, and there was no understanding that he was to get it back when he was clear of the Court. By Mr Fitz Gerald: He started without capital. His Honor thought there were no suspicious circumstances in the debtor’s transactions with his mother, and. granted the order. The Assignee said Mrs Standen (mother of the bankrupt) had waived her claims against the estate. Orders for discharge were also granted to J. F. Clinton, A. A. Taylor, and W. W. Pointon. The application on behalf of C. W. Hawthorne was allowed to stand over till next sitting on Mr Fitz Gerald’s application. Orders closing the bankruptcies were granted in the estates of Julian Allen, John H. Smith, Thos. J. Boys, James A. Chorley, John Prestidge, Charles E,

Gawlor, Edmund Marriott, and R. N. Cowan.