Friday, July 3.

Otago Witness, Issue 2210, 9 July 1896, Page 20

Friday, July 3.

The case in support' of tho plaintiff's claim wob continued, and evidonco was given by William Goldsmith (miner, Wethewtones), Norman Kirkcaldy (surveyor), and James Ti*born(thi» plaintiff), the two latter witnesses being recalled. Mr Sim, in opening tho case for the defence, said that it appeared about 18(57 or 18c8 Wright Lowe, tbe defendant's predecessor in title, made a cut through section 8, but apparently there had been very little scouring from that. According to the evidenco of tho plaintiff himself, there were only Dhreo or four to eight loads of gravel taken out as a result. Hi* Honor said what he understood the plaintiff to say was that that quantity was what he took in a year, fife did not undmtand'tho plaintiff % to fay that that represented tho total quantity. Mr Chapman? No. Ho said it would run to ■ three to five tonight loads after a flood. Mr Sim : The plaintiff made no complaint unjll after the cut of 1891, and then, according to young Lowo's evidence, all that was taken out aa tb.e result of the cut was about eight loads ; and it was not until after the cleaning that wsn done by the defendant that any substantial complaint was made by the plaintiff at all, so that the original worke- the cut in 1867 or 1863 and the subsequent cut in 1891 -seemed to have done practically no damage at all. The whole of tbe damage that was complained, of seemed to have been caused recently by tlio defendant cleaning out these cuts. Tho cleaning out was done in January and February 1804, and all that tho defendant did was to clean out the cut in section 8. In April there was an unusually heavy flood, and- no 1 doubt, as its result, a lurge quantity of material was earned down from tho defendants to the plaintiff's land, and magistrate had awarded damages in respect of that in tho Magistrate's Court at Lawrence/ After the hearing of that case before the magistrate and before-the judgment was actually delivered and before the defendant received tho notice which wa<* served on him. in June last, be commenced steu3 to prevent further damage. He put in stonework along the sides of the creek where it was necessary, he pitched with stonea the portion of the creek bed where the stream had not reached the bedrock, and in othor places he put logs and ecrub. That work was finuhed in July, and in October, before the flood, tho defendant placed in the stream, where ths dam now was, a log about 2ffc thick right across the stream. That log served the* purpose of a dam and certainly dammed the watfcr. After tho flood in October there was an accumulation of But behind the dam, the silt having been carried down as the rosult of the pitching and othec operations carried on by the defendant la the stream. In tho following March the defendant built up the dam which had been.. Bpoken of, and iv addition to that took out some of the scrub and built in more stones. The effect of tha work which.was done by "the defendant after tho caie and before tjbe flood in October waste .rovont any further scouring, none taking place beyond what was evidenced by the accumulation of^ailt behind the lo?. That silt was taken out by f thc defendant before the dam was completed in October 1896, and from that date thing* had remained as they were at tho present time. Aaumber of witnesses would express tha opinion that the work tho defendant had done had been quite effective for the purpose for which it wm intended, and the witnesssa would say that it was utterly impossible tint the stuff found inMrTaborn's laud should have come from tho defendant's laid. If that was so, it would be for the defence to »uggest wh«re the stuff came from that was taken out of the creek by Mr Tabom from time to time, and what the witnesses would say on that subject was that the material taken out was in Mr Taborn's own creak bed— that what theplaintiff had been -doing had been really to deepen and widen the creak bed from time to time. Mr Brydie had no opportunity of inspecting the material which had been taken out after the previous cos* excepting that which was taken out in February last, but he and his witnesses would cay it was impossible for stuff suoh as that to have come down from his land. The heap included clay which could not have been carried down the stream any distance, and it also included large stones. If that was the character of tho heap the defendant had had an -opportunity of inspecting, he was justified in atktng his Honor to assume that the stuff taken out previously was of tho same character. If bo, that stuff could not have come down from Mr Brydie's land, but what Mr Taborn had been doing was to deepen the creek and itake out stuff which was there originally, or stuff which might have come down in earlier years as the result of the operations carried on by Mr Wright Lowe iv 1867 or ISM. Alexander Brvdie, Jsmes Brydie, Wright Lowe, George Miaw Walker, and John Blaildo were examined forthe defence, whose mse was not concluded, when The court ro»e at 4.50 p.m.

IN CHAMBERS. Friday, Joltt 3. (Before hi* Honor Mr Justice Williams.! IN THE MATTER OF "THE COMPANIES ACT 18S2 W AND OF THE J. G. WARD FARMERS' ASSOCIA« TlOff OF NEW ZEALAND (LIMITED). Summons to the provisional liquidator of tht J. G. Ward Farmers' Association to show causd why he should not deliver to Henry Harrowell, tho attorney for Richard Powell Coojoer, 607 cuei

/of Cooper's cheep dipping powder, on the ground that tho said powder is the property of the said -Itfchurd Powell Cooper, and he Is entitled to possession thereof. 'l Mr Sim appeared in support of the summons, Mr Hosklng on behalf of the provisional official liquidator of the association (Mr W. R. Cook), wt Haggltt on behalf of the official liquidators of jfche Colonial Bunk, and Mr Woodhouse on behalf jtf the association. , ' In reply to his Honor, I Mr Hosking t aid the provisional oiheial liqui- ' oatov did cot- oppose the Bunimonsr. ■) Mr Haggltt mentioned that he did not know anything about the matter. £ Mr Woodhousa said he was in the same posi- • Won. •fi Mr Hoiking said the sheep dip was consigned ofco Mr Ward bb agent on bohalf of the owner, and sjthe agency was subsequently transferred to the association. A claim was made on the provisional liquidator to give up the dip, and he was wdvtesd that ho ought not to part with anything Without the sanction of the court, as he was in ijosaeislon. His Honor inquired if the liquidator was satisfied that the dip was not an aiset. Mir Hosking : The liquidator is satisfied that it 4s as represented. Bis Honor : Then, it is not an aßstt. Mr Bim saii the affidavit showed the fact that the dip was sent on consignment. , Mr Hoskiiig produced a document which the liquidator had given to him by the association, stating the terms of the agency to be : " All stock of the powder in the hande of the agent is the property of the proprietors, and absolutely at their ditpofeal." Mr Sim : That is set out in the affidavit. The sheep dip remains the property of the proprietors. His Honor : The doctrine of reputed ownership . does not apply 1 ■' Mr Hosking : No. The liquidator has satisfied .himself that there is no lien in favour of the association, but that the account is the other way. His Honor : If these are the termu of the agency, and the asiocfation has no lien— if the liquidator has satisfied himself about this Mr Hosking ; Tho liquidator has satisfied him•ett. His Honor : The liquidator was of course right in bringing the matter beforo the court. Mr Hosking : There will be some other applications. The liquidator was advised that he is very much in the position of a receiver. His Honor : Just so. It would be dangerous for him to act on his own account. Mr Hosking : The reason for briDging the matter up is that he may be justified in acting in a similar way in respect to the other claims. His Honor observed that the parties substantially interested in opposing tho summons were the debenture-holder*, and" asked Mr Haggitt if he was satUfied, as otherwise the matter could xtaud over for a day or two. Mr Haggltt : I understand my friend is in a hurry to get an order. Mr Sim : There is no question as to the facts. y Mr Haggitt was sure the debenture-holders would be satisfied if Mr Cook was satisfied. The liquidators of the Colonial Dank were not here, and he did not suppose they would know anything about it if th*y were here. His Honor: The Bank of New Zealand is satisfied? Mr Hosking : The Bank of New Zealand is not interested reajly. His Honor : Is there anything to show that Mr Cook is satisfied ? Mr Sim : The last paragraph in Mr Harrowell'a affidavit shows that. HU Honor ; One would like to have Mr Cook before ono, and have his own statement that he admitted these things. Mr Hosking : I advised Mr Cook that he could not Rive up possession without the sanction of the court. His Honor : Are you prepared to say that Mr pook admits all the facts? . Mr Hosking : Yes, I am. His Honor : Very well, I will make the order. Mr Sim asked as to costs. He submitted this ■was a case in which the costs should come out of tho eßtatf>. Mr Hosking : I think the other tide might be satisfied with getting their property so easily. His Honor thought Mr Situ was entitled to the ordinary cost* of a summons (two guineas) out of the estate. The other parties were granted costs of attendance. x '