SUPREME COURT.

Otago Witness, Issue 652, 28 May 1864, Page 16

SUPREME COURT.

CIVIL SESSION.

Monday, 23rd Mat. (Before His Honor, Mr Justice Chapman.) Cause was shown why certain special jurors should not be fined £10 each for failure to attend according to summons. They were all excused, as there appeared to have been some mistake as to time in the summons, but his Honor requested Hat the present circumstance would not bo taken aa signifying that his habit was to be lenient to aeghgent jurors. Skootikg a Miner — Slattohtbb Yabds oh the Gold Fibld3. (Joldbn v. Wood akd Ahothsb —{Special Jury.)— >T!he plaintiff, John Golden, was formerly & miner; and the defendants, William Wood and Marias Power, had a licensed slaughter yard on the Tuapeka Gold Field. Compensation was sought for the loss of the plaintiff's sight arm, which it was alleged resulted from the aarelesenesa of a servant of the defendants in shooting a bullock; and special damages were sought for the loss of his share in a claim in Gabriel's Gully. The defendants pleaded a general denial of the allegations ; that they were <faly licensed under the Gold Fields Act, 1858 ; that there had been contributory negligence on the part of the plaintiff ; and that he had agreed to accept the payments made by the defendants for surgical attendance and medical comforts, together with sundry sums of money, as compenMtion in full. Mr Barton appeared for the plaintiff j -Mr Hart for Wood ; and Messrs Cook aud Main for Fewer. The case for the plaintiff was as follows :— Part «f the defendants establishment consists of an open slaughter-yard, not protected in any way, Ist simply Burrounded with a light post and rail fence. The main road from Gabriel'B Gully to Monroe's passes close to the yard. At the end of January, 1862, the plaintiff aud his mates were jawing along the road between four and five Velock. They saw a man outside the fence, pointing v gun at a restive bullock in the yard ; and they moved as cpuckly as they could out of the way, i lest they should be bit. The man fired but missed the bullock, and then ran round ihe yard after *. Seeing that the man was about to fire the second barrel of his gun, the plaintifi again tried is get oat of the way, and while Ids back was

towards the yard, the man fired, and the ball bit the plaintiff in the right arm, just below the elbow. He bled badly, and his mates, having made a stretcher, carried Mm to their tent, a distance of a mile. There he remained for five weeks, nnder the care of Mr Close, a surgeon, who then recommended his removal to the Hospital in Dunedin. He was brought down at the expense of Mr Wood. After he had been there 18 days, Dr. Hulme found it necessary to amputate the arm; and the plaintiff subsequently remained eleven months c> laid up." He ia now employed in the Hospital as a watcher.The plaintiff and his mates -were examined ; and were cross-examined at some length, with reference to plans sbowinsr the situation of the slaughter-yard and the neighboring tracks. Other witnesses were also examined. The case for the defence, as Btated by Mr Hart was, that although there were trasks occasionally used, the common road between Gabriel's and Monroe's was at a considerably greater distance from the slaughter-yard than was the plaintiff at he time he was bIioL; and that the plaintiff was near the yard rather as a spectator of what was going on, than as a passer-by on his ordinary business. - It would be shown that the discharge of the gun was a pure mischance while the man was following the bullock round the yard, and was not a deliberate act ; and that the plaintiff having been afterwards visited by the defendants, he on one occasion, if not more than oae, expressed that by bis own act he had in some degree contributed to what happened. If this were so, the law as to contributory negligence would be a sufficient bar to the recovery of damages. Henry Clapcotfc, Provincial Treasurer, by whom the yard was put up, said that it was an ordinary stock yard fence. He was examined as to distances, &c, but the examining counsel was frequently stopped by the Judge, who safd that questions were being put to tne witness which were purely matters to be judged of by the jury. William Wood, one of the defendants, said that he saw the plaintiff fuur times in his tent, and had spoken to him about twenty times in Dunedin. At- the tent, the plaintiff's mates complained a great deal of the badness of their claim ; and he believed them, from the evidences supplied by the appearance of the tent. The men were exceedingly kind to the plaintiff; and because he thought the plaintiff must be a great burden to them, he gave them money, contributing in all about f.20 before the plaintiff was removed to the hospital. Afterwards, when a subscription was got up for the plaintiff, he contributed L 5 or L 5 ss, and a like sum on behulf of bis partner. On one occasion of a visit to the tent, the men, as usual, thanked him very heartily for all he had done for them ; and the plaintiti said, " I hope you will not blame anyone for what has happened, for I alone am to blame. I had no right to be where I was." A man named Martin was present at the time. He never heard ot any claim from the plaintiff until December last, when he received a short note from Mr Ward, the solicitor. The man who had the gun when the accident happened was named Morgan. He had ascertained at the Custom House, that Morgan had letfc Victoria for England on the Bth December, which would be a few days before the receipt of the letter from Mr Ward. He (Wood) ceased to be concerned in the yard about three weeks after the occurrence in question. [There was a great deal of unreportable examination and cross examination, upon plans deliberately prepared and impromptu, as to gullies, tracks, spurs, and leading ranges, and 83 to relative distances and amount of traffic ] In going from Gabriel's to Monroe's it was not necessary to g1)g 1 ) within 150 op 200 yar.la of the stockyard j the proper track was quite that distance on. Thomas Martin, of the Royal Oak, p ctagon, corroborated the previous witness as to the alleged admission on the part of the plaintiff that the accident was his own fault — that he bad no business where he was at the time. — By Mr Barton : He was managing at the time for Mr Hopkinson, who had bought the yard from Wood' and Power ; and Mr Wood, while taking him round to the customers, introduced him into the tent, to see the man who had been wounded by an accidental shot. He was quite positive that the man who was then lying on the bed with his right arm hurt said that the thing was his fault— that he had no business to be where he was, Robert Eilgour. who was managing for the defendants, and who was near Morgan at the time of the accident, said, that while moving round to get a shot at the bullock, ha half stumbled, and so caused the gun to go off. The plaintiff and others were standing looking on out of Curiosity. He (Eilgour) believed he cautioned the plaintiff to go away. Certainly, he had often cautioned men who stood about near the yard. There was only one shot— the one by accident. The witness described the plan used for the de fence, and which had been prepared under his directions. Frederick Kimball, who was near Morgan, generally corroborated Kilgour, and said tEat the plaintiff was not on the track when shot. He believed that Morgan was in Ballarat. After addresses by Mr Hart, Mr Main, and Mr Barton, His Honor Bummed up elaborately, and then recapitulated. The jury would probably think at the outset, that the firing of a gun, or the having one that would be likely to go off by accident, was sufficient to raise a'prima facia presumption of negligence, seeing that Her Majesty's subjects had a lawful right to pass along by his stock yard. In fche second place, the jury would have to consider whether what happened was the result of inevitable accident ; if so, there would be an end of the whole cose. But if they thought that to cook the gun before running round the yard after the bullock -as was distinctly sworn by one of the witnesses for the plaintiff, from whom came the first sugceition, that Morgan slipped, stumbled, or half fell— then that would do away with all idea of accident, and would be sufficient to charge the defendants. Aa to the contributory negligence of the plaintiff. It was not illegal for a man to atop when passing this stock yard ; nor would the defendant be discharged by any remote act or otni^ion of the plaintiff, which had indirectly tended, by delaying his passage along the road, for instance, to bring him to the spot at which the accident happened. It would not be enough even if the delay was caused by an illegal act, such as stopping to fight with another man. The negligence of toe plaintiff, hi order to discharge the defendants, mast have directly contributed to his own misfortune ; and the jury must consider whether there had been any auoh thing ia this case. As to the alleged, admission. Words uttered by a man in ignoitnce of Mi rights

and duties or those of others, must not be j tortured into an admission of legal neg- ! ligeni c. _ The plaintiff might hare thought that certain conduct of bis own would have effect -with a jury, so as to prevent his gttting damages, and he might have the more readily uttered the alleged admission, because Mr Wood appeared to have beea acting very benevolently to him ; but when a solicitor was consulted, the plaintiff would .earn that he was not so in the wrong as he had supposed. The jury would consider whether the words were intended to have so wide a meaning ! as it had been sought to put upon them. As to damage?, if the jury concluded the defendants were liable, they should be given after a fair consideration of the relative positions of the parties, and a deduction of so much as the defendants had already contributed towards the plaintiff's aid and comfort. The jury retired about six o'clock j and at half pist six, as they had not agreed, and were not lik'ly to agree, the Jad^e left the court, counsel having consented that the verdict should be received by the Registrar. At a quarter to eight, the jury came into court and declining to answer the issues, gave a verdict for the plaintiff—damages one farthing.

Wednesday, 25ih Mat. LEASE OF LAUD. M'Farlanev. M'Neil and Another.— (Special Jury).— Mr Hart, with whom, was Mr Barton, appeared for the plaintiff, and Mr Prendetvast, with whom was Mr 3eniy Howorth, for the defendants. This was an action brought by Mr Duncan M'Farlane, a resident in the Clufcha District, aeainst James and Alexander M'Neil, landowners in that district, to compel them to execute to the plaintiff a lease for five years of a certain ten acres of land, in accordance with the terms of an agreement alleged to have been mutually entered into between them.' The plaintiff, Duncan M'Farlane, made the following; statement :— ln the beginning of the year 1863, 1 was workinpr for Mr James M'Neil, on his ground, in the Clutha District. About the middle of January, James M'Neil psked me if I would accept ten acres of land from him on lease for five years, on condition that I should break up the ground, clear it, fence it, and put a house on it for my own use, and leave it at the ena of five years sown down in English grass, the improvements to go for the rent. The defendant, James M'tVeil, also said he would give me a couple of day's ploughing to assist me at the first start. I said, ''Very well, I will accept of this agreement ; but you must give it me in writing," He promised to do so whenever he had time. I had liberty to choose my ten acres from a block of one hundred belonging to the defendant, and I chose ten acres of Section No. 6, fronting the river. James M'Ncill agreed to my selection, and said I could commence to build my house whenever I liked. I built a house on the land, and went to lire in it. Ifc was James M'Neil himself who suggested tha kind of house I should build. When it was finished I went to live in the house with my wife, and we have lived there ever since. About three or lour months after I went to live there, Alexander M'Neil, the son, came to me, and asked if I was aware that he had bought the land from Ms father, I asked him if he had purchased ray lease and house also, and he said he had bought everything ; and that he would give me eight days to clear out. I would not go, and he summoned me before the Resident Magistrate's Oourt for trespassing, I told James M'Neil what his son had done, and he expressed surprise at such conduct on the part of his eon. A. few days afterwards, i went to James M' Neil's house. Both father and son were present, and James produced a piece of paper, saying it was a lease, and asked me to sign if. It was read over by Daniel Cunningham, and as it stipulated that I should put up a weatherboard house of the value of L5Q0, 1 refused to sign it. , I have since remained in possession of the land, although Alexander M'Neil has since cultivated the ten acres in question without my consent. James Maitland, H.M. for the Clutha District, remembered a case of trespass being brought before him, between Alex>nder M'NeU and Duncan M'Farlane, in which James M'Neil I was called as & witness by the defendant, and he admitted in examination that there had been a verbal agreement to lease, between himself and M'Farlane. He dismissed the case. | For the defence, James M'Neil : The plaintiff was working for me in January, 1863, and as his wife was coming home to him he wauted a piece of land to put a house on. I said I would let him have ten acres | of land, on condition that he put a good substantial house on it, cleared, cultivated, and fenced it, and laid it down in English grass seed, and gave it back to me at the end of five years. The land he was to have was, a piece ar. the end of- Sections six and seven, fronting the river. He seemed to be satisfied with this, but nothing was said as to the time of bis going on to the land, and I never pointed it out to him. The weatherboard bouse was to be pat up in lieu of rent. I was to do one half of the fence rnnning between him and me, and I was to give him two days' ploughing. He has never done anything to the land, except about one day's cutting. He put up a hut built of sods. He said he had put it up till he could get a better, and I said it was the best thing he could dc for a short time. After I, had sold. the* land to i my son, ' I remembered a lease' being offered the plaintiff of the land In question. Its terms were that the house arid improvements should amount in value to LSQO, and this was to stand as rent. Plaintiff refused to agree to the terms of the lease. i Cross-examined by Mr Barton.— When I sold the land to my son, no writing passed between us except a deed of conveyance. He was to pay me Ll5OO, but I have not yet got any of it. He I was to have it at LI 5 per acre, to be paid on the ! 9th of June this year. I bought the land at 10s per acre five or six years ago. I Alexander M'Neil: lam a settler at the Clutha. The sections 6 and 7 referred ti are j us>t ! outside the township. I bought the land from my father, and the agreement now produced is the one made between us. 1 told plaintiff to go off the land after I bought it. He said he had got a lease of it, and 1 asked him to show it me, but lie said he had still to get it, but I replied that he was too late as I had bought it. The lease that was offered to plaintiff, I got written out, but he refused it, as he said the terms were not the same as he had been promised. He said he would not pat up any other building tban the one he bad erected, as it would do him all his time, and that was all he care,d about- No farther arrangement was made about the land; And I have cleared It, ploughed it, and sown it,

and plaintiff has never complained of me doing so, or interfered with meia the lesst. Mr Frendergast having addressed the Jury for the defendant, and Mr Barion for the plaintiff, His Honor summed up. This was an action for specific performances, in whfrh the Court would have to perform a certain function hereafter. The principal question which the Jury would have to consider, was whether there had been, in fact, such an agreement as that set forth in the declaration. There was first a strong presumption that there was some sort of understand* ing between the parties, which they at the time understood in the nature of an agreement. Another presumption as to the sort of agreement was, that the plaintiff was permitted to erect the hut upon the land whioh had been mentioned under the agreement, belonging to the defendant. Something of the nature of an agreement did pass between the parties, and the plaintiff's evidence on the subject waa very clear. He stated that James M'Neil asked him to accept of a lease, of ten acres of land under conditions that he waa to clear, cultivate and fenoa it, and to erect a house upon it. They would nave to consider whether in reality this was the agreement, and whether the plaintiff was let into possession under the agreement and whether under the agreement he ha 1 laid out money. But if he had obtained possession in some accidental manner and not under the agreement, it would be of no avail. If they should be of opinion that the agreement wa." as stated by the plaintiff, then in point of law it was not necessary that he should fence the whole ten acres at once or cut down the flax on the whole ten acres during the firat yew, because he could do it during the five years at his leisure. If the Sfreement was not as the plaintiff stated it, then there would be an end of the whole case. As to the sale of the land from father to son, pending the settlement of the plaintiff*? claims, he (the Judge) felt bound to say that all, such sales had a auspicious look about, them, but M'Farlane's rights to the land could not be affected in any wav by the sale, even supposing that it was a bona fide sale. . If they thought that the plaintiff was in possession under th« agreement, then that possession being visible to Alexander M'Neil— as he had acknowledged— would constitute sufficient notice to a purchaser that some one was in possession, and visible notice of occupation should have led the purchaser to make enquiry into the rights of the person in possession.' The jury brought in a verdict for the plain tifi.