MAGISTERIAL.
ASHBURTON—FBIDAT.
i [Before Mr H. 0. S. Baddeley, R.M., and Mr W. J. Steward, J.P.) )• —i i CIVIL CASES. Friedlander v. Fergus—Claim, £lO 6a sd. t Ho appearance of defendant. In this ease i. certain items of interest on money advanced t and goods bought at auction appearing in the particulars of demand, Mr Baddeley said j interest was not recoverable except when there was an agreement to that effect between the parties. 1 Mr Friedlander said that there was an agreement or understanding that interest 5 should be paid in this case, and judgment t was given for the amount claimed and costs. 7 Bank of New Zealand v. Jones and Brad* r shaw—Claim, £3.6s 7d. Mr Purnell for ; plaintiffs. Judgment for plaintiffs by default a for amount claimed and costs. j Ashburton Borough Council v. Knowles— Claim, 13s for rates due.' This case was not proceeded with, defendant having filed. In another case there was no appearance on either side, and the case was struck out. 1 The remaining cases on the list were T settled out of Court. 5 ACTION FOB DAMAGES. Macbeth and Maude v. Kelly, Kelly, and * s O’Donnell—Mr Wilding for plaintiffs, Mr s Crisp for defendants. s In this ease the plaintiffs, W. N. Macbeth . and T. W. Maude, owners of Lowclifla 8 Station, sued the defendants, John Kelly, . Patrick Kelly, and John O’Donnell, 'for £lO damages for trespass on plain* ? tiff’s plantatation and for injuries to trees in 1 or abont the month of July last. Mr Crisp objected that the particulars of 3 demand were not sufficiently fall and explicit, 3 and after considerable argument between 7 counsel —the Court, at Mr Wilding’s reqnest, i amended the particulars by specifying the j damages oomplained of as “injuries to trees in i defendant’s plantation, by catting and re* moving trees, between the dates on the Ist . and 21st Jn’j.” Mr Wilding having briefly stated the particulars of the case, called the following evidence: —Edward H. Dobson, 1 who deposed—The plaintiffs are owners of 1 Lowliff station, of which lam manager. The ' defendants were engaged catting gocse lor me on the station. They had a camp. About the 21st July they had finished their contract and tenders were out for a contract for the Road Board which I them to go in i for. They shifted camp To where thin road was to be made. 1 went down by appointment to lay ont this work for them: lam a member of the Rood Board. When 1 I went down there I found they had I some gam saplings in their possession. 1 Asked where they got; them. John Kelly 1 said “We got them at Taylor’s and Holborongh’s camp.” _ Got off my horse and examined the saplings, and foond they i had not been used in any way. They had not been cat more than two days. Said X should try and find ont who ont them, as I. would make any one catting trees, if I could, pay me £5 for every tree cut. 1 then went np to the Hinds, where Taylor and Holborough had shifted to, to see if they bad any saplings of any sort in their possession. X found that the tent poles they had were, as 1 near as I could tell, the same as they had had > before they shifted. I afterwards went again to defendants’ camp, and fonnd they bad a number of willow poles which they had cat from trees on oar land not far off their camp. They did not deny catting them on car land. 1 charged them with having dome so, and they said they didn’t see any harm in cutting a few sticks. I said that altar the caution I had given them about the gran saplings I should make them pay for the damage. I then went and examined the gnm plantation and fonnd that a number of sap* lings had been cat and trimmed, agreeing in size and age with those I saw in Kelly'S possession. 1 mean by age the age of the cutting on the stomp. I examined about half a dozen of the gnm saplings in defendants possession, and the stomps of the first half* dozen 1 saw. They were from 3to 4J inches thick. The defendants had a few mere, bat I did not look for any more stomps. Those I examined were cat from a thick place about a chain and a half from where the defendant’s finished cutting gorse. I found a mark In the hedge where some peson had gone through. Wherg these trees were ont persons catting them could not be seen from the road, No one bad permission to cat - the saplings or willows. I attach the greatest importance to the security of the plantations, as they are useful for shelter purposes, and we nse the thinnings for fencing. It Is bard to give * the value of growing saplings. I consider the sum claimed a tair sum. If the trees were off the ground they would be worth abont £7los a hundred. Their chief value is for shelter, as a plantation might be the means of saving 1000 sheep—Cross-examined by Mr Crisp: The gums will never grow again in the same way, and the willows that have been out will not be of use for shelter for three or four years—Abont fifteen willows were cat. Did not see any of the defendants out anything. The gums were cut at the corner of the plantation nearest the Kelly’s, the willows at a place abont three miles away—. at the place they shifted camp to. Where the gams were oat Is a fairly good plantation. The gums that were cot would be 5 years old at the least. The trees are certainly killed for all useful purposes, pro*
bably killed altogether. The value of seven or saplings 1 saw at the defendannta’ camp on the 21st would be about eighleenpenoe each. If defendants swear that they did not cat the willows I •will deny that, but will not swear that they were the persons who cut the gum saplings. ; BfgttCGn pence to two soillings cwt is the value of the saplings to a purchaser when cut, not their vftluG when growing. Though I cannot swear that the defendants cut the gum saplings. I have no doubt whatever that the gum saplings I saw in their possession were cut from our plantation. Taylor: I was contracting together with a man named Holborough on Lowcliff station in J uly Remember Mr Dobson coming up and enquiring about some saplings. We hadj a little prior to this shifted camy. We left no saplings when we shifted camp. We took all we had with ns. Kelly got no fsaplings from our camp. As he says he did it is- not true. After seeing Dobson I saw John Kelly in the Arcade at Ashburton on the following Saturday. I asked him why he told Mr Dobson that we cut the saplings. Ha replied 11 We did no such thing.” He then went away. He did not say who cut the saplings. The witness was cross-examined by Mr Crisp hut nothing of importance was elicited —This was the plaintiffs case. Mr Crisp called John Kelly, who, having been sworn, deposed : Was working with the other defendants at Lowcliff. Never cut or had anything to do with cutting gume or willows from Lowcliff plantations. There were five gum seplings about the camp and two old stumps of willows. There was one old tree down by the creek, which was broken down. It bad some broken branches, and my mate took them for a mark to form the road by. We got the five gum saplings from down the road where we went for straw. The straw was in a paddock near the road. I think it was on Mr Boyle’s or part of the Lowcliff estate. We found the saplings lying by the straw. They had been cut two or three months.—Cross-examined: We were on the station about three months. At first we had two tents. They are the same tents, same poles, and all that we were using when on tha Road Board contract. We got the saplings from the straw stack. John O'Donnell: Am one of the defendants. Never cut any trees in the platation in Lowoliff. We had some blue gum trees which we got from the side of the road. We also had some willow stakes marking out the road. We found the willows cut. We out no gums or willowsi When we came away we left the poles behind! us.— Cross-examined : I cut some small branches from a dead willow tree to lay out the line for a road drain. We got the gum saplings from a straw stack by the side of the road on the 22nd June. Patrick Kelly also denied having cat any _gum saplings. Did not cut any willows. Had had the gum saplings used at the camp about a month. Mr Wilding commented upon the evidence, and submitted that the defendants had admitted cutting the willows, and put it to tha Court as to whether there was any reasonable doubt that Mr Dobson’s version of the case was die true one. ' The Resident Magistrate said that' the Bench held the case proven, and gave judgment for £5, with one guinea professional coats, and costs of one witness. POLICE V TONES —APPLICATION FOB BE-HEARIKG. Me Wilding applied for an order for a re-hearlng of this case, the particulars of which will be in the recollection of our readers, having (been the subject of much interest. The application now made! was based upon the discovery of fresh evidence of the existence of which defendant had no knowledge at the previous hearing. An action for libel bad since been brought by Toner against Herring at Timaru, and the jury had not only swarded £l5O damages to Toner, but in a rider to their verdict had expressed the belief that the timber which Toner was charged with cutting in Herring's bush was not in that bnsh at all but in Pye’s bush. Since then Toner had shown the spot at which the timber was cut to Mr Chapman, who at once said that it was in Pye’s Bush. Had this been shown to the Court at the time, it was, he submitted, probable that it would have affected the decision. They were also prepared to bring ihe evidence of Mr Fooks, surveyor, who had made a special survey, and other evidence which would confirm this. Mr Whi"-’, Crown Solicitor at Timaru, appeared to oppose tha application. He argued that the fresh evidence referred to as available would not prove anything beyond that a certain place pointed out by Toner as the place where he had cut the timber was in Pye’a bush; it would not prove that that was where the timber was cut. He further urged that altogether too great a length of Ijme had been allowed to lapse, and that the application for re-hearing was in effect barred by the 117th clause of the Justices of tha Peace Act, the fine inflicted having been paid, and ell proceedings completed. Mr Wilding argued that it was improper, almost indecent, of the police to oppose the application, and that no time had been lost over the matter on the part of the defendant. Mr Baddeley would have been glad to grant a rehearing if he saw any chance of the defen- ' dant clearing his character, but it seemed to him that the evidence to be called was simply to prove what Toner bad told other people. But the time for granting a rehearing was quite gone by, and it seemed to him that it would be irregular to grant the application. It was, however, in the power of the Minister of Justice to order a rehearing. Mr Wilding was understood to say that he believed that the Minister had expressed his willingness to make such an order. Application refused. Mr White applied for costs, but the Magistrate said he did not see his way to grant costs. The Court then rose.
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Ashburton Guardian, Volume V, Issue 1344, 17 September 1886, Page 2
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2,039MAGISTERIAL. Ashburton Guardian, Volume V, Issue 1344, 17 September 1886, Page 2
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