MAGISTRATE'S COURT.

Poverty Bay Herald, Volume XXXV, Issue 11249, 13 April 1908, Page 5

MAGISTRATE'S COURT.

TOLAGA BAY CASE.

Argument was .taken at the Magistrate's Court thisi morning, before Mr W. A.* Barton, S.M., m the case of the Tolaga Bay School Committee (Mr <H. Bright) v. R. McNeil (Mr T. Alston Coleman), claim for 30s, damage to; a school gate by a horse bolting with , a buggy. Evidience m tlie tease liad been taken at the last sitting 1 of the .Court at Tolaga Bay, when the questions of tie land title and negligence arose, and were referred to Gisborne. Mr Coleman. said he raised two points for the defence, first as to jurisdiction, secondly that there was no negligence on tho part of defendant, and it ' was essential that the flatter should be proved. Regarding the first point, counsel contended that the evidence showed that no title of the land where the damage was done had been issued from the Crown. His Worship said there i was no doubt tho land had Doen reserved. Mr .Coleman agreed, but held it was still invested m the Crown, and there was no right for action by a school committee. Tho block plan showed that the Crown itself had Jaid off a road through this reserve As. the plaintiff's held no title to the land they had no right to take action. Counsel proceeding quoted Hansell v.> Lane , m = Supreme Court, .1887, m support of his contention. Referring to negligence Mr Coleman submitted that thu evidence showed that . there , was no negligence on the pai't'of defendant. The horse, which was a quiet one, was tied up, and it could not be apprehended by defendant that the horse on this occasion would have been frightened to cause it to pull away and bolt down the road with the trap and collide with the fence m question. Had the horse been left entirely unattended •it would be a different matter. Counsel then quoted authorities distinguishing the difference between wild and tame animals. Mr Bright said there was no dispute as to the facts. , The question was whether defendant was liable for negligence by leaving 1 a horse tied up on a public road. The question of title,, Mr Bright contended, did not arise. c If any, one had V right to cause tho gate to be removed it Was the County Council or the Crown; any one outside those parties could not interfere. As far* as the public were concerned the School Committee had a perfect right to be there, and for anyone to interfere \vas actionable. ■ . : . His Worship said he would take time to consider the matter and give, his decision, later. . WAIPIRO BAY CASE— BREACH OF COVENANT. Argument was also taken m another case dealt with at the recent Court sittings held up the Coast the case ,of Walter Henry Connelly (Mr Bright) v. Herbert Henry Fairlie (Mr Coleman), m which plaintiff claimed £75 damages for alleged breach by defendant . of a covenant in"' restriction of trade, and £17 17s for legal costs and charges. Mr Coleman said the i question was as to whether plaintiff ' suffered any damage by' defendant breaking a covenant which they, admitted. There was no proof m the evidence that any damage had bepq, caused. To entitle plaintiff to recover m this action it was necessary that some actual damage must be shown. Tho only thing that plaintiff could show was by his bank lodgmonts, which showed £76 less than the amount for the corresponding month of the previous year. Such evidence as that was unreliable, and could not be taken into consideration. Defendant had not done anything to draw away custom from plaintiff's store, but by taking action . agjiinst some twenty" Natives had improved plaintiff's Maori trade, which lie admitted was his best source of business. Mr Coleman, proceeding, dealt with the question of damages, claiming that if successful plaintiff was .only entitled to nominal damages. His Worship said the question to his mind was whether it was necessary, for plaintiff to proye actual damage m order to recover. • Mr; Coleman submitted there was no evidence to show that there was any actual damage. : Mr Bright; said ■ he could hardly find any authorities at. all bearing on a case such' as the one m question. Actual damage would bo very difficult to prove. There must be some damage on account of the breach of the covenant, and counsel, quoted a decision by Mr Justice Denniston, who awarded damages, although no -actual damage' was proved. , His Worship said he would take time to. consider Ins decision.