IN BANCO.

Poverty Bay Herald, Volume XXXI, Issue 10038, 3 May 1904, Page 2

IN BANCO.

ADAIR V. CARROLL. . Margaret Adair v. Heni . Kara (Mrs James Carroll) and others. Mr Stock for plaintiff, and Mr W. L. Rees for defendants. : Mr Stock m opening said this case came before His Honor m Auckland some months ago, and was adjourned to enable him to take it m Gisborne. His Honor lad made some suggestion to join Judge Moir, of the Native Land Court, as a defendant. An order had been taken out joining Judge Mair as defendant, and he had been served with copies of the action. The facts of the case as they appeared from the affidavit filed were that a claim for compensation was put m m- connection with Wai-o-hi-liarore block taken by proclamation by the Government m 1901. At that time there was a lease existing from Mrs Caroll to Mrs Adair, and an application was made under the Public Works Act, 1894, claiming compensation for Mrs. Adair's leaseHold interest. Mr -Stock quoted section 90 of the Public Works Act, 1894, wherein it was Erovided that m the case of any leaseold of land taken, the Court should first' determine what part of the whole compensation should be paid to the leaseholder. Under that ' section Mrs Adair liad put m _ claim for compensation to the value of he* interest; Mr Stock contended that the Native Land Court Judge had no right: to make an order unless he assessed the amount owing to the leaseholder. • The case had been pending for two or three years before the Native Land Court-and, adjourned. It was very difficult to know when any business was coming on. If a party were, to be m attendance waiting for a. case to come, on it meant that. he l_d to be. there from day to day doing nothing. Plaintiff contended that the Native LandCourt Judge had no right -without hearing from Mrs Adair's solicitor tliat the case was abandoned to assume that it was abandoned and make an order without fixing her interest; Plaintiff asked that the Native Land Court be ordered to fix the amount of compensation to be paid to Mrs Adair.; Mr Rees, m replying, held tliat the; claim of Mrs Adair could not be held to stand against defendants, although it might be m existence against the Crown. Mr Stock said plaintiff applied to the Native Land Court to hear the whole ap-, plication, and the Court was prepared to do; so, but defendants refused to con,seut. Mr Rees replied that defendants had' maintained that ; they had. done with the matter as far as Mrs Carroll was concerned, and the order liad been made,, but the 90th section of the Act had not been pointed out to the Court-, and the absolute necessity of bringing the compensation to be paid to the, owner of the land and the : leaseholder into, one order. Mr Stock: It would have been mentioned if we had had an opportunity of ' being heard. ' His Honor said the proper thing, it seemed to him, was to call up the order made by the Land Court, quash it,. and direct the Court to proceed with the hearing of the.. claim and assess the,interests respectively. If the .parties consented to that he would make an, order. Counsel agreeing/to this course, his Honor made the order accordingly, with no costs. Regarding .costs,. Mr Stock said the Court had been quite prepared to, hear the whole application if the defendants had consented. , . Mr Rees replied tliat plaintiff had intimated clearly their intention that they desired to claim part of the £1900 awarded to Mrs Carroll.. ■ . H His Honor said the Native Land Court ought to proceed with some degree of formality. The ' Court , should make formal appointments and require formal notice of appointments. If that had been done, m .the .present \case the jdifficulfcy would not have arisen. The case was* hardly a native proceeding. BINNIE v.;LYSNARv An appeal lodged by defendant against the Magistrate's decision m ; the. case of Hugh Binnie y. W. D. Lysnar was heard. Mr Lysnar appeared m person for ftp--pellant, and Mr Stock for' respondent. V In opening, Mr Lysnar added to his former defence the, further points- that .T. defendant did not know that the horse was of a vicious nature; (2) was the plaintiff guilty of contributory negligence ? Mr, Lysnar reviewed the evidence .given m the lower Court at length, which was to the effect that respondent Binnie was knocked down at Whataupoko by appellant's horse, which liad escaped from Awapuni. Binnie, it will be .remembered, claimed and obtained damages m the Magistrate's Court for injuries received when he was knocked down. Mr Lysnar urged it was not a natural- consequence to think that the animal when let go would bolt and cause trouble. At the time Binnie collided with the horse he was endeavoring to head the horse. . He must have seen the animal, as he slated m the lower Court that he saw a man 100 yds behind the horse, coming along the road. Mr Stock contended that if _ horse was frightened and bolted, then Ids owner, if negligent, was liable for any damage caused through the horse bolting. He went on to quote a case which held tliat if a man left his horse and cart unattended m the street, and a passer-by struck the horse, the owner would be liable for damage for leaving the animal unattended. Mr Lysnar, by : his neglifence, or that of his' servant, allowed his orse to stray. It having rum into Binnie Mr Lysnar was therefore liable for all the consequences. There was no evidence to show that there was any contributory negligence on the part of plaintiff. Binnie must have been ahead of the horse, as it struck him m the back. Mr Lysnar : It struck him m the side. Continuing his address after the luncheon adjournment, Mr Stock said, the Magistrate, after hearing the evidence, had decided that the plaintiff had : - not been guilty of contributory . negligenceHe apprehended tliat the Corirt would not disturb that decision unless it /was shown, that the Magistrate was wrong n\ his, finding. ' . '■'. Mr Lysnar replied. His Honor reserved judgmetut.