DISTRICT COURT.

Taranaki Daily News, Volume XXIII, Issue 115, 31 May 1901, Page 2

DISTRICT COURT.

APPEAL FOR RE-HEARING. INTERESTING FENCING CASE. Thursday, 30th May.—Before His Honour District Judge Kj-ttle.

Mr. District Judg3 KetMo heard argument in a fencing cise appeal on Tiuirsd.y morning. The case was Mundt (appc'lact) v. Auton (respondent). Air. Hutchen (Richmond and Hutcboi ) for the app:lbnt, and Mr. J. Wil.-on for tho respondent. This was an appeal from tho judgment of Mr. it. L. Stanford, S.M , yi . ed ou 5 h March last. The respondent had tued tha app.K'int under the provisions o f the " Fencing A"t, 1895," for £7, the cost of ropiiring half t' e division fence between lands occupied by the parties. Tho respondent had given tha appellant no -ice 11 repair his half of tho f r nco and to add ilir. e wires to it so as to malca the number up <o seven. The appel- j lant th-reup';n gave notice bo the to j -p<in*'eat that ho r> quired a rew force altogether. The appellant did not repair his •half of the fence as required by the r spondent, who simo time afieiw. j rds rep iir» d the f. nee in acc: rd ir.ee will hi-» notice and sued for ihe cost cf such iv pairs. Mr. J, E. Wilson appeared for the plaint ill* ( ho present respondent), and Mr. Hutchen for tl e def' nd nit.

Tr.e Stipcndia»y Mipistrate h -Id thab as tha exiting division fence was not a " sufficient fence" within the meaning of the Feccing Act, 1895, it could not be made the subject of a no'ica to rep-iir, but tint as the fer.ee erected by the respondent was in fact such a fence as was required by the appellant in his no ice to fence, the respondent was entitkd to recover tho cost of the same which was moderately assessed at £7. Judgment was accordingly given for that sum and cojts ,£1 10s.

From this judgment the appellant appeals, the appeal bsing to the Diati ict Court by way of rehetring. The. grounds of the appal are: - That there was a dispute between the parties as to the sufficiency of the exisl ing fence which should have been determined by a migistrata bsfcre the respondent commenced to repair ; that the fence was insufficient, and could not be the subject of a rpfiair. note., that the respocdjnt's notice was in Isubstancs a notice to ercc v i a foi.co, but did not comply with the requirements of the Far cing Act; and that respondent had never given a propsr notice to fence; that there was no neglect on the part of the appellant as there were counter propota's and cross notices requiring determinatioo by the magistrate; that the work done by the respondent, had not been done in compliance with appe'lan'.'n notice to fence, and (hat the respondent commenced an ) completed a large part of tha woik within s ven da;s of service of his notice to rnp-iir and before tha expiration of 21 days after sei vi e upon him of the appellant's no'ic > to feuce. The reppord'ant contends that tin notice given by him is a pr p >r iv tice ta repair ; tint the fencv in existence was a sufficient fence, having bien erected by the pjrtiea by mutual agrtemen 1 , and th<i appelhnt having failed to repair ia terms of the not'CJ the respondent was entitled to do sa acd recover the cost from appellant. Tho fo'hwing <-v!d:-nca was taken : . Richard Price, farmer, Egmont Road, being sworn, sa'd —A" tho end of last ysur Auton atked me to act as sola arbitrator-b tweeQ himst-lf end

Mundt with r t f rjcc'-j 1o a boundary feice ; I con en'ed (o pet; there was an Id fence ; I did no 1 ; go oa the j:rom;d; I was to decide whe'ter the existing 'ence' was a substantial one or r.o", and if not what thoull bs done by both pa'ties; I th'nk it w s in Nuverab>r I got a le L ter from Autoa that my tervic s were not r quired.

Ci'os'-i-examined : Mundt saw me al'o tho day after Auton saw me; I can't say if it was a sale day or a S»turday ; Weednesiay and Sa'urday aie sal • days; I five! a time to see the fence ; I got a let'er for Autoa a day or two after I saw him' first; Auton saw me again and asked me to arbitrate ; if, was in November, a w;ek after the Gist occasion.

C. F. Mundt, a of appellant, said: I remember the fence being erected in 1892 in March; th<-y felled a line and put up .a tempoiary. fence

'•ill the bush was burst; the f. nee w*a four wires, not pub up in line; no ag'ecment as to lepairs'of tha fe-'ee was midti; the repairs were mostly done by my father; our land had been burnt'five yeirs before.; I remember Price being appointed to arbitiats in November.

Cross examirei : It was agreed f hat tin feiic) blioull be post' and four wires ; no agreement <as mde as ti keepiDg it in repair ; th're wasnospcci-ilpist parking the half of the fecee; l's 1 . yea 1 Au'on put on wires and <iow posts. Thet'd were £om3 good p.'sts in the fer cj.

F. Mundt, ariose*- son of defender's, fai'i I 'enember Mr. P. ice being appointed on 7 f h November last; tha' wis b> fore back half wa3 repined, The co'ice wns in August.; the fenc *a? no 1 , the sort of feare required, an-} was danjerf-'Ui.

C.oiß-examin d: All the fences have >arbcd wire ; I repaired the fence with bai bed w 1-. Aut >n sa'td the iepairs cn 8 h November; some of th"

pjs's were good. Mr. Hutchon addressed the Court it considerable length, quoting authoriios to hho« that this was a case for he Magiftrate to adjudicate upon. Nothing bad dona to mike any gre'm nt under the Ac*', nnd if theiv ; >ad been both parties had s»t it aside as shown by the mtic s sent by both uartio* to each other. He then pro eeh d to argua th»t Anton's noti'e •v s no 1 ; a good fencing no'ice, as it ivns not eithor a not : ce to repair or to t lvct new fence.

Af'er some argument, roo;nrdirg the I ci i n ' f the lower Court 11 is Honou n''d the Stipmd'ary Migietrate np- > >ar- (1 t=> hava misconceive! the wl olio^ition. Mr. Wilsm <a ; d the c?se turned a ■ood d' a! en what was a suili :ient •Vnc, and the Act of 1881, nf*er soiling forth various kinds of fenefs, < id, " nnd such other fence as may ie mutually agreed upon b twe'n ■he parties." In this case this agreement had bean verbally made the alter-

at;on in tho Act of 1895 was that such an agreement: must In in writing, ha held, therefore, th»t it was a sutlieient fen< o under tho Act of 1881. The fence culd therefore le made the subjeftt of a no'ice to repair. The cises quoted Ky his learned frier,d d'd not apply, ns the dispute was quite different. In the one c;se the dispute was in refer enca to the boundary, and ill the other the defendant took down a p' st and rail and put up a wire fencv. In this case tho repairs h«d made the fence a s'iffi.:ient ftnce under the Act of 1895. The Act allowed the deepening of a ditch and other works to btrengthen or improve, and in this case the fenca had been made higher, but in no way had the description of tte fence been altered. He went on t) argue that the evidence showed that the 95 Act did nof apply in the manner proposed, and that tho ngreemrnt bitween them, as to t' e fence and the H'.lf each was to beep in order, was a good .one. Ilis Honor said he thought Mr Wilson should have relied upon the agrrement as an agreement outside the Act.

Mr Wilson : Probtbly so. His Honor hai l both counsel agreed that the leatned Magis'rate acted uii'ler a miseouccption of the facts. The law wes e'ear a* to whit should be done in the rasa of disputes in connect tion with fencing The e was no doubt but that there was a bona fide dispute betwesn the parties and respondent should not hive proceeded to effect repairs until they hid mutually agreed, referred it to a Magistrate or got a neighbour to decide the mat ter. The spit it'of the Act was th tin any dispute the Magistrate should decide. As he had sud there certainly was a dispute, and as the respondent had t.ak»n the ri*h of proceeding to effect repairs in the face of the dispute, he cor sidered the appeal must be allowed with costs JJS 5s and disbursements. Hei should strongly advi'e that even now the prrtios shou'd go to the Magistrate to decide what should be done, as it was better than ha ving bud blo'd over the matter.

Mr Wilson s*id the S. M. had already decided that there was now a sufficient fence between the parties.

ADMINISTRATION OF AN INSOLVENT ESTATE. A NOVEL POINT DECIDED. The before the Court was that of Ihi estite of Edward Sutton deceased, the appl'cVi n being that tha claim therroa for wages by Messrs -Tynan and Noon-in should bi treated •»s preferential up <o the limit allowed by the Administration Act < f 1888 and tha*. the date of the death of the should be treited as tha date of bankruptcy under the Act. Mr. Barton appeared for the \red tors mentioned, and Mr. Kerr for the Official As'igote. Mr.- Barton in opening the case said jthq position was that Sutton died on the 18th December, 1899, when the ex>-cut ors discovered that his pstite was insolveut and obtained an order for adm:nist r a'ion in bankruptcy. At that time Tynan and Noonan were in the I employ of decassed on piece work at his sawmill, being paid at the rate of 2s p >r 100 feet for Grst-cVs timber and lis per 100 for secon 1 c'ass. Practically Sutton was bookkeeper for both is : d s, tha contractors taking 'he qumJti iss cut ss enterfid in Sutton's delivery bcok. Tnere was no written contract has N<-onau's brother had previously been 'h,e contractor ar.d the present c'aimant had takm over the contract. Proof was put in to the Official Assignee in Match, 1900, and no do disallowance took |l>ci. Saveral applica'ions h'ld he n nmde for piym°nt without avail hence the present proceedings. It had been agreed that •he fu ; t should bi treated as a friendly rao'ioo for the Court to decide the points involved. The present motion wis under section 120, sub-section 13, pa ll . E wherein provision wis mide for payment of wages. He d d not think it was dnputsd tha"; the claim was prefe r ential. Mr. Kerr dissented. He did not admit either that thi amount was owing, rr that the claim was preferfn•ial. It wai represented to the Assignee that ckinnnts wera contractors cot workmen.

Mr. Barton : The men were working tHe mill for Sut'on, and had been employed so'ely in cutting up timber, ther. for.i they were workmen pure and simple. He understood that it was c nfcendrd that the four months limit nndfr the Act dated back from the filing of the petition in b»nkiuptcy, but he cDnterded that the date must be taken b ck from the death of the debtor, bs the claimant could not be taken to be working for a dead man. He quoted thi ewe of "Expaite Weld'.n, 12 New Z ahnd Law rep>rts pp, 669, 670.

I His Honour sug?e ted first deciding 'hn (juflstiin of indebtedness, and this icourse wns adopted. Mr. Barton call'd, Ar.diMw Tyman, who dfettilod the niluroif his employment as outlined ty Ooun e\ His Honour: Why was not tlrs claim lorg ago. Mr. D ivies : The matter p'it ; n the hards of Mr. McDiv'tt, an"! tbaro had eeei ho many dispu'el accounts and con'ras that the bus'n ss wa* ve'y pro'-acted. j

His Honour : Are you sati&fi d that thfy are eriti'.lcd to their cla ; m. Mr. Daviis: Not thoroughly. I reqirre producti n of hook-! and further evidetce of the cVm b'ing coriect.

Witness put io a detailed statement of claim f ,£l6l 15s, and, in teply to Hi J Honour, swore that it was a true and j'ist account. His Honour: Have you < ver tec jived any applicat'O'. for particulars '( Witness: On'y a fjw days ago, 1 mado out the document first put in fi'i tn the books produced, the entries it) which made out from Sutton's books.

To His Honour : Why did yon let tho Miiourit owing grow so large. Wi'.ress: Sutton ccu'd not pay. The last cheque given wasdi-h tnoured.

John K, Noonan copoborattd last witnoss.

J. K. Newman also gavo evidcce. Jas. C. D.ivw, theOllie al Assignee, in r<p'y to Mr. IWon, slid Sutton was larg-ly embarrassed at the time of his death. Had not fathomed the transactions between Sjott and Su'iton Wits under the impres-ion that Scott was collecting for Sutton as agent,

His Honour: Why was that qufstion not asked of Scott in his examination yesterday. Witness: 1 did not think of it.' To Mr. Bar'on : Had no dofiaita information from Scott as to his transac'ions with Sutton, except that Scott claimed he had bought outright from I Sutton.

His Honour: When will the investigation be finished ? \ Witness: I want to declare a dividend. His Honour: A consummation devoutly to be wished. Supposing these men had not moved, bow long would their claim have been under further investigation ? Witness: They did not movo. I went <o Mr. Kerr on the matter.

To Mr. Barton: He suspected the j entry in Scott's book as to purchase of timber was f»lse. His Honour: Have you ever examined Scott on oath on this point ? Witness: Not on that particu'ar point. To Mr Barton : Could not a*y what eflfact these transitions of Sco't had on Smith's es f a f e.

To Mr Kerr: Thnre whs plenty of money to piy the preferential creditors up to j£so each. To His Honor: Being assignee in both Scott and Sutton's es'a'es have you adjusted accounts between the two.

Witness: Not yet, but I intend to do so as soon as this sitting is over. „To Mr Barton: There was £SOB 16s 3d in hand; Mr McDavitt was paid by commission.

His Honor: There will be no necessity for me to make an order, eg if this claim is proved to be a preferen'iolone lit is the duty of the Assignee.to pay it.

Mr "Kerr admitted that the evidence! proved claimants were workmen; aa to admitting the debt he considered that further investigation was necessary. His Honor: Thisc'aim was made in October, 1900; why was it not investigated previously; the Assignee might be liable to pay int 'rrst on theie preferen'ial claims, and I am not sure that nn order should not be made in that dirfc'ioo.

Mr Keir suggested an order should be made subject to the claim being supported by the entries in Sutton's books. His Honor: Do you apply for adjournment or call evidence.

Mr Kerr: Neither. His Honor: Do you invite me to dirtbe'ieve th« evidence given, Mr. Kerr: Net in the least. I only ask fir corroboration.

His Honour: In this case you have the evidence of both m»ri, and not a single item was challenged. What more can you want ? Mr. Kerr: No dtfubt when the books are examined the men's statement may ba found to be correct. Tber order could be made subject to proof of any contris that can be found.

Mr. Barton: My c'ients could be sued forcontrasif any should ba found. [The books of Tyran were then hsndert to the Official Assignee to cowpaie

with those of Su'ton.] Mr. Kerr then address d the Cjurt on the subject of tho claim bsing a pref rantial one-tho question being whether the four months' limit should date from the fi ing of the petition, or that of the testator's death. Tbe point', he siid, was a Lovel one, and thereforethe Official Ass'gr.ee was desirous of having the ruling of the C -u: t. His Honour: Common sense requires that the day of death should bodied. Mr. Ken-: B""t the Bankruptcy Act 6tat s prec eely i liat tho date must b* that of filing the pe'itiin. Nothing what jver i 3 said as to date of an insolvent's death. His Honour: It i 4 a v.ry important, point. Mr. Barton paid that the effect of the Act of 1888 was la determine the man ner in which an insolvent estate should be divided and administered. The clause in the Act creating prifetent al claims was reilly ihe only cewprovisi n that w><s created, and it was eviden' that this introduction of this impo tint proviso was the real object of Act. H s Honour: lam not at all sunthat this Oourt has any ju. Udiction in this matter. The (state was ariminis tered in the Supreme Court and the Act stated that all other proceedings should follow in the same Oourt. Mr Kerr submitted thit the Rules gave th° former to the District Court. Mr. Barton said he was afraid the objection rais d by His Honour wrs fat*!. Both Mr. Kerr and himself hid assumed the District Court hid jurisdiction. *"

Bis Honour: There is no doubt the District Court should have jurisdiction in thesß matters.

Mr. Btrton: Continuing hi* argu ment contended that the Act of 1888 showed wages a." a preferential claim, and thit services could not be rendered to a dead m«n, tlurefore the time of death rhonld I e read into the Act in pi 'ce of tho words " date of filing tie pt-ti ion," He the only case hearing on the point wherein Judge Richmond stated that the data of deith of an ins lvent te-tat >r w s practically the iite of The judgment moreovtr showed that there H a disposition 'o do violence ti the*letter of ihe Act s) as to introduce equity ioto op-ration. After further areument on bo'h sidts, His Honour said it was certainly an important qnes'ion, but ho thought be should Lot be doing vio ence to th npirin of the Act by reading ioto it th" words " nt date of the dea'h of the d ibtor," in plane of the words '• data of deStoi's peti ion." He would noftka an order accordirgly, admitting part of the claim as pn-fe>en i; al, his jurisdiction could, of courte, bs taken awny by wris of prohibi'ion, but he understand* both parties agreed'o abide by his decision.