RESIDENT MAGISTRATE'S COURT.

Cromwell Argus, Volume IV, Issue 159, 26 November 1872, Page 6

RESIDENT MAGISTRATE'S COURT.

Thuesday, November 21. (Before IF. L. Simpson, Esq., It.M.; James Corse, Esq., J.P. ; and 31. Fracr, Esq., J.P.J o'neil V. berry. Claim, £l3 7s. The debt was admitted, and judgment was given for the amount. BERRY V. u'iNErL. Claim, £4 10s. Mr P. J. Wilson, for defendant, pleaded not indebted. After hearing evidence, the Bench gave judgment foi £3. All CAN V. AH SUI. Claim, £l6 ISs. The hearing of this case was adjourned to enable the parties to obtain the assistance of a properly-qualified interpreter. -.TAMES SCOTT V. I. LOUGHNAN. The plaintiff claimed £2O damages, under the circumstances described in the plaint-note, as follows :—That on the Bth November, 1572, defendant, at or near the town of Cromwell, seized and took possession of six horses, the property of plaintiff, for the purpose of impounding the' same for an alleged trespass upon property (the | Mount Pisa Run) which had no substantial or j sufficient fence enclosing it, and after so seizing | and taking possession of such horses did impound j them in a yard or paddock not being a public pound and not being a place upon his (defendant's) lands, and retained such horses in such yard or paddock for a great length of lime, and j during such time refused to deliver up possession of such horses to plaintiff without payment of £1 for each horse so detained ; but, subsequently to such refusal, defendant caused such horses to j l>e driven to and placed in the public pound of I the Dunstan district, and instructed the pound-1 keeper to demand and receive the sum of ten i shillings per head for such horses for damages and expenses, which sum said poundkeeper did demand and receive from plaintiff before releasing such horses, the plaintiff being compelled to pay such sum in order to obtain possession of such horses : -whereby plaintiff was put to great I loss of time, trouble, and expense. And also that from the time of defendant seizing and taking possession as aforesaid, defendant omitted to , ke:p and maintain such horses in a proper manner, or to supply them with necessary food and i ■water, whereby such horses sustained injury and damage. Mr Allanby for plaintiff; Mr F. J. Wilson for ( defendant. The pleas for the defence were : first, that defendant did not take the horses in manner and form as alleged ; and, second, not guilty. James Scott, the plaintiff, sworn :—On the Bth inst., defendant put six hoises of mine into Coodgtr's stockyard in the township of Cromwell. 1 cut the horses out from a mob that was being driven by defendant's men, but they were afterwards taken from me. r Jhe same night 1 gave defendant a written notice to reletsu the horses. 1 went to the stockyard next morning, and defendant refused to release them unless 1 paid i 1 a head. The horses were yarded between two and three o'clock on the Sth, and were kept in the stockyard till next day; when they were driven to the Clyde pound by defendant's men. I followed, them to the pound, and had to pay Is. a head poundage fee, and 10s. a head for damages, before 1 could obtain their release. 1 could enly get them part of the May home that night, and lefr them about three or four miles from Cromwell : they were so ravenously hungry that they would not drive. Two of them 1 have not seen since, and 1 have spent four days looking for them. J never got any notice from the defendant of his intention to impound the horses. Cross-examined :—1 sue defendant because it was he that took possession of the horses. Ido not know whether he acted in this matter as master or servant. 1 made no tender of any sum of money on account of the horses after they were seized. Goodgcr's yard is within the town boundary. 1 would have preferred that the horses had been driven to the home station had they been fed. Ignatius Loughnan, manager of Mount Pisa Station, examined by plaintiff's solicitor:—! claimed £1 a head for twelve months' grazing in advance ; and the 10s. a head claimed by the poundkeeper on my behalf was for actual trespass. I gave the plaintiff no notice of my intention to impound. Some weeks ago, 1 gave notice by advertisement that all horses depasturing on the run were to be registered on the Station ; only some fifteen or sixteen or sixteen were so registered, p.nd 1 therefore mustered all I could find on the run. Cross-examined by Mr Wilson : —I am manager of Mount I'isa Station, and have no interest whatever as partner in the run : 1 am simply a servant. Have no land of my own either in < 'romvcll or any other part, of the Province. Had the horses not been put in Goodger's stockyard, 1 should have had to diive them to a paddock at the home station, and that would (■ace caused the owners to travel twenty miles 1 o i flcasc them. The other witnesses for plaintiff were William Scott, John Marsh, and 11. K. Willmott; but their evidence Mas of no material importance. Mr Wilson, for the defence, submitted that the verdict of the Court must be in his client's favour. Ir. w.-.s quite evident the first part of clause 33 of the Impounding Ordinance, 1872, gave the runholder power to impound stock trespassing upon a run. He maintained that Ihr fact of plaintiff having made no tender to induce defendant to release the horses, was fatal to the plaintiffs case; and quoted from Wroiiffs and iln'ir Jlcmfdies to show that the plaintiff was found to tender the amount of grazing fees or damages which he might consider just. The Resident Magistrate held that it was necessary foi the defendant to prove that the lar,d on which the horses was found was a run, and that if, did not belong to defendant ; as without such proof Mr Wilson's argument would tell against his client. Mr Wilson : 'there is clear evidence that m substantial damage has been sustained by plaintiff. Our justification is that the horses wer* trespassing on the run, and that they were legal!) impounded. The Resident Magistrate :—The rourt must have distinct proof regarding the boundaries c: Ihe run : in a case of this kind we can take no thing for granted. Mr Wilson ar.ked for a week's adjournment ' > ounVlo him to produce evidence as to boun daiics of run:

The Bench granted the adjournment, and allowed one guiuea costs to plaintiff's counsel. hj [Mr Fraer here left the Bench.] s the " wexford" case. James ITazlett V. James Taylor and others, stewards of the Cromwell Spring Race Meeting. This was an action to recover the sum of £ls, being amount of prize advertised to be paid to the winner of the Hack Selling Race run at • Cromwell 11 ace-course on the 27th September ' last. ' MrW. W. Wilson for plaintiff; Mr F. J. [ Wilson for defendants. j The plea for the defence was "that plaintiff, not having complied with the express or implied , conditions on which the race was run, is not entitled to recover." ' Mr W. W. Wilson read a copy of advertise- c ment regarding the races, and said he would call * witnesses to prove that Mr Hazlett's horse was entered ; that he ran, won, and was sold. If , he did this, he thought his client was entitled to i a verdict. The defence was that the conditions | of the race had not been complied with ; but he ; 1 submitted that the advertisement stated nothing :, about rules, nor did it specify how the horse was I' to be sold. The auctioneer sold the horse after j due deliberation, from a conspicuous position— j 1 the judge's box ; and several of the stewards I were present at the s:ile. Jle then proceeded to call evidence. * Defendants' counsel said they admitted everything up to the time when the horse came in first. I' James Hazlett, sworn :--After the horse came in, perhaps ten or fifteen minutes, 1 saw my man (Stewart Waddell) lead the horse up to the judge's box. Mr Fache, who was in the box when I went up, acted as auctioneer, and after describing the horse in the usual way, offered ; ' him at the upset price of £ls. The auctioneer I waited long enough for a bid, but none was j! given, and the horse was knocked down at the same figure. There were at least fifty persons i present. 1 asked Mr Fache previously where he was going to sell the horse, but did not in- 1 j struct him to proceed with the sale It is not usual for a bell to be rang when a horse that has . won a race is going to be sold. Ido not recollect having on any similar occasion heard a bell;

rung. Mr Kidd, one of the stewards, was within hearing at the time of sale. 1 asked him not to ! ' bid against me for the horse, and am therefore sure his attention was called to the sale. (!. Fache, sworn : —I acted as auctioneer iu ■ ; selling Mr Hazlett's horse by virtue of my liav-1 ing been previously employed by the stewards to sell the booth, &c Ido not recollect whether it was expressly stipulated that 1 should sell the horse, but it was quite understood. Dining the races, I asked the stewards' permission to sell horses for some other persons. Mr Cowan, a steward, told me to wait tiil after the Hack | Selling 11 ace. I sold the horse Wexford from Mr Harding's buggy, which was used tempo- j rarily as a judge's box. After the race was run, ; 1 followed the winner to the stewards'room, and ; told Waddell to bring the horse to the judge's box. One of the stewards—l don't remember which—had the bridle in his hard at the time, i i then took my stand on the buggy. Some time elapsed before the horse was brought to me. 1 looked round for the owner, and saw him standing behind me. As soon as 1 saw Mr L'azlett, j i commenced the sale ; and after announcing the conditions of sale, describing the horse, and waiting a leasonahle time for a bid, no one made I any advance, anil 1 knocked the horse down, saying, " £ls for the owner." My foot was on [ the step in the act of getting down, when some one bid !os. (. replied, "You're too late." 1 was selling the horse on commission, and would i have been acting adversely to my own interest in selling him for £ls if 1 had thought he would | fetch £25. (loss-examined:—Mr Prcshaw did not ask me who told me to sell the horse. 1 recollect attending' a meeting of stewards on the race- : course, and 1 then admitted that 1 had no direct authority to sell the horse, but stated I thought it was fully understood. It is usual for the auci tioneer who sells the booths to conduct sales in the case of " selling races," and it would be very discourteous if otherwise. I consider 1 was obliged to attend the races in consequence of the : Selling ltace being advertised. Since this action 1 was brought, I have given Mr Freshaw an aei count for my commission on the sale of Wexford. j Stewart Wad dell's evidence was unimportant. I In defence, Mr F. J. Wilson submitted that (from the moment of winning the race, the horse became, in a qualified sense, the property of the i stewards, who held a possessory light to the j winner until he v.as sold. It was the business | of the stewards to give directions for the sale. I He would call witnesses to prove that the sale ! took place without the stewards' knowledge. I J. A. I'reshaw Mas then sworn, but his name I not having been advertised as a steward, he was ! not asked to give evidence. John Marsh, sworn : 1 was one of the . stewards, but was not consulted in any way as I to the sale. James Cowan, also a steward, stated:—! was present at the races, but was not applied to for I authority to sill, and did not in any way authorise the sale, nor did 1 witness the sale. Cross-examined: —I believe it, was omitted to be stated in the advertisement that the races were to be run under the Dunstan Jockey Club Rules. By the Bench :—There is no rule on the subject. The usual custom is to sell the horse under | the authority of the stewards. 1 acted as clerk to the scales, but I heard no one tell the jockey, ' while the hitter was being weighed, to fetch the horse round to the judge's box. I!. Kidd ami It. E. l>agg, we.e called but did ; not put in an appearance. 1. Loughnan, sworn :—1 was one of the stewards. 1 gave no authority to any one to j sell the horse. By permission of the Bench, and with the consent of plnintilFs counsel, Mr F. J. Wilson rc--1 called .1. A. Prfshaw, presidenl; of the Jockey Club, i who stated : —1 was deputed by the stewards to ask Mr Hazlett who authorised the sale, i asked him to give up the horse, and lie refused. 1 asked Mr Fache after the ni"i ting of stewards, whence ho got his instructions to sell, and he told me it was the owner who instructed him. The plaintiffs counsel then recalled (!. Fache, who stated :—1 am sure Mr Prcshaw , did not come to me while in the box to as!: who I told me to sell. 1 did not say at any time 1 was ' instructed by the stewards to sell.

Mr W. W. Wilson addressed the Court ou belalf of the plaintiff. Mr Facile was not in- i ;tri)'-lpd by Mr Haz'ett, but by the understood luthority of the stewards. If the stewards did | lot appoint an auctioneer, tin re was uo reason ,vhy his client should suffer loss through their :arelessness in performing tlieir duties. The Resident; Magistrate said the Bench had ;ome to the conclusion that the plaintiff was unloubtedly entitled to the stakes. It was ad-1 -pitted by the stewards that they made no special { ippointment of an auctioneer, and, under the ! drcumstauces, the auctioneer could not be darned for acting as he had done. It was ineuin- | i>ent upon the stewards to prove that the sale S had been conducted with undue haste, and with in apparent disposition to get the horse knocked lown to the owner. The advertisement simply dated the winner was '' to be sold for £ 15." The sale took place, but there was no proof nf any collusion between the owner and the auctioneer. The whole procedure certainly seemed very loose, and the Bench would recommend that strict rules should be laid down for the future. Hie verdict would lie for the plaintiff in the full amount claimed, together with £2 2s. professional costs, 2-is. costs, and 235. witness's ex- | pense3. The Bench had remarked a very Hat contradiction in the statements of two of the witnesses, either of whom, they trusted, must be greatly at fault as regarded memory. SLAUGHTER-HOUSE LICENSKS. The applications of Johh I'erriam, Lowburn. and Henry Maidman, Luggate, were granted.