MAGISTERIAL.

Ashburton Guardian, Volume V, Issue 1303, 31 July 1886, Page 2

MAGISTERIAL.

A3HLURTON—FRIDAY.

Before Mr H. 0. S. Baddeley, E.M., and Mr D. Thomas, J.P.] Buck'ey v. Parsons, claim £25 Mr Wilding for the plaintiff, Messrs Parnell and Orlsp for the defendant.—This was a claim for the refund of £5 alleged to have boon improperly paid by plaintiff to defendant, and for £2O damages sustained by plaintiff through defendant seizing and over-driving 482 sheep, his (plaintiff's) property. —Mr Wilding having brhfly stated the salient points of the case, called the following evidence :—D Buckley, the plaintiff, said ; I occupy land adjoining that of the defendant lam not aware that my sheep trespassed on defendant’s property. On June 16 I went to defendant’s yards and saw some pf my sheep there. At the same time I received a letter (produced) from defendant, and paid £5 to obtain the release of the sheep Defendant refused to release the sheep until the money was paid, but said he wonld refund the amount if the sheep did not trespass again before harvest. I saw defendant on the previous day driving sheep on the road, and I borrowed a horse and rode after him. I could not overtake | him; he was driving the sheep very | rapidly, and a cloud of steam was rising from the dock. The sheep were galloping, and I returned to my house and released the sheep the next day. 1 was at one time within a quarter of a mile of the flock. Seven of the sheep have died since the driving ; I attribute their deaths to the vio’ent manner in which they were driven. Defendant had a very poor fence between hla property and the road ; it is only 2ft Sin high. The boundary fence between my property and defendant’s Is 2ft Oln high. Defendant was riding at a fast canter while driving the sheep. To Mr Purnell—My sheep occasionally trespass, but not more than other people’s. I had to pay Mr Brick damages for trespass, and Mr Lowe has a judgment against me on a similar claim I do not know how the sheep got on defendant’s property. There w>s good feed on my farm. I protested against the payment of the £5 I did not state to defendant that I had no paddock to hold the sheep. Defendant offered to assist me In making a yard. I did not complaia to defendant of the sheep having been overdriven until he came to my house and said if I wanted war he wonld give me war. I may have had an interview with Mr Nicholas We’sh before I determined to take action. Six of (he seven sheep that died were lambs, I cannot say whether it la uanal or not for lambs to die In winter. My sheep got very strong, from loafing on my neighbors. I had 014 sheep during the winter, of which I lost •nly the seven. The defendant se zsd 482 sheep. I did not tell Lnmbie that 1 agreed to pay defendant £5 on condition that the sum would be refunded if my sheep did not trespass again before harvest. Ido not remember telling Lambie that Nicholas Welsh had advised mi to take the present action. Lambie, in (he course of a conversation did not say “ Your sheep are always trespassing,” but he did say “ You know the state of your fences ; yon had better not deo’are war until you are readyjto fight. ” I cannot remember telling Brick that my sheep were beautiful jumpers. They are not bettor jumpers than other people’s Ido not recollect Brick saying that my sheep were demoralised. I did not invite defendant to go with me when I measured the fence, and I did not count the wires. Ido not know which is the most important part of a fence. The boundary fence between ray property and defendant’s was erected by agreement between myself and the previous occupier of the latter property. I do not consider it a iheep proof fence 1 . I measured the fences on July 25 and was accompanied by Mr Gordon.—To the Bench : I gather the sheep I saw defendant driving were mine from the fact that I afterwards found one of my Hook on the road. —To Mr Purnell : I did not say to Lambie, “ I am not sure defendant was not driving his own sheep.’’ I could not see the brands, but I am morally certain they were my sheep. It was a mixed lot. I told Lowe about a week after the occurence that defendant had been very hard on me. I said nothing about the damage to the sheep. I spoke of the damage to several other people. I mentioned it to Hugh MiOleary. j cannot recollect mentioning it to anyone else, and McOleary has gone to Kimberley. (Laughter.)—T, Hurley, farmer, said : 1 lent the plalnt ff a horse to follow some driven sheep. I could not say who the driver was, or what he was driving. I know nothing about the fences referred to by the plaintiff.— O. O. Fooks, licensed snrveyor, said : I measured the boundary fence between plaintiff s and defendant’s property. It was about three feet high. Tha fence ibuttuig on the road was from 2ft 7in to 3rt 3in high. To Mr Purnell: 1 examined the fences on Wednesday last The fence was pointed cut to me as the one over which the sheep had gonePlaintiff’s fences bad been burnt, and were rather dilapidated. 1 measured the fences in the interest of the plaintiff This concluded the evidence for the plaintiff, and Mr Purnell having observed that there was no evidence to support the second part of the claim, proceeded to review the evidence he proposed to call in answer to the firtt Having concluded he called the following evidence :—H. W, Parsons, farmer, said : The fence on my p-oparty described by plaintiff is compose I of live wires, well strained with plenty of stakes. Then la gorsa on most of It; where there is little gorse there are more stakes. The *owor wires are aboi t five inches apart, the higher about eight inches. It holds my sheep, a mixed flock, perfectly. The paddock has been fenced five or six yerrs, [ Plaintiff’s flock was composed of all sorts of sheep of different ages : his fences were I utterly useless. The sheep have been a great trouble to mo ; the only trouble I have had in the district. There was splendid feed in the paddock in which they trespassed. On June 14 I left my farm and expected to bo away from home for some days, I returned unexpectedly on the following day about dusk, and found plaintiff's sheep in my paddock. ! The fence was broken down in several places. I took charge of the sheep and drove them to my yard. I drove them very quietly, and used every safeguard to prevent them being hurried. The following morning I gave my boy a note to take to plaintiff. Plaintiff came across to enquire about hla sheep, and I said that in consequence of his treatment of Brick, and the repeated trespasses of his sheep, I offered to take £5 as a deposit to insnre good behavior by the plaintiff; the sum to be returned if the sheep did not trespass again before harvest. Plaintiff agreed to those terms, and paid the £5. Plaintiff then had breakfast at my place, and I offered to give him assistance In erecting sheepyards Plaintiff was most cordial, and admitted that I had acted most fairly towards him. The deaths in the plaintiff’s flock were not unusually numerous..—By Mr Wilding: Plaintiff did not obtain his sheep until the £5 was paid. If it had not been paid I should have impounded the sli ep.— Murdoch Bruce, farmer, said: The defendant’s fences are well kept, and are the beat in the district. I have been a neighbor to the defendant for about six years (Witness gave particulars of the various fences referred to by the plaintiff and defendant.) The plaintiff had very miserable fences. 1 would rather have the plaintiff’s fence than the one described m the Fencing Act. Defendant is a good man with stock; he would not be likely to overdrive stock. I —P, Prick, fanner

said: I know the defendant’s fences. They are the best in the district, and quite sufficient to keep in sheep. The plaintiff’s sheep are notorious jumpers. They are mixed ages, sexes, and sorts. They have trespassed on my property. Plaintiff asked me to allow him to put a dog round the sheep to exhibit their jumping powers. Ultimately I consented, and they jumped splendidly. I would back them against any sheep in New Zealand. Plaintiff has land of his own, but usually feeds his sheep on my land. Sheep travel I very fast in cold weather. Defendant’s sheep have never trespassed on my property. Overdriven sheep would show the effects in twenty-four hours Gertrude Parsons, wife of the defendant : I heard my husband say that he had received the sum of £5 from the plaintiff, which was to be returned If his (plaintiff’s) sheep did not trespass again before harvest. In the presence of plaintiff my husband charged me to carry out this arrangement if anything should happen to him (the defendant) John Lamble, farmer, corroborated the evidence given by other witnesses for the defen. dant. He added .-—Plaintiff told ms that Nicholas Welsh had given him the law of the matter, and had advised him to bring an action against the defendant.—This concluded the evidence for the defence. Mr Purnell was proceeding to address the Bench, when Mr Wilding announced that if the Oonrt was of opinion that the plaintiff had paid the £5 on the terms alleged by the defendant he wonld accept a non-suit.—Mr Baddeley said the Bench felt compelled to accept the defendant’s version of the affair. The case should never have been brought into Court. If the defendant had oonsnlted a solicitor before acting on the advice of Mr Nicholas Welsh—whoever that Individual might bo —he wonld have saved himself much trouble and expense.—Plaln'lff non-suited with coats. The Court then rose.