RESIDENT MAGISTRATE’S COURT. CLYDE.

Dunstan Times, Issue 439, 16 September 1870, Page 2

RESIDENT MAGISTRATE’S COURT. CLYDE.

(Before Vincent Fyke, Esq., R.M.) September 10. James Muir, on remand from Cromwell, was charged with committing a rape. Remanded back to Cromwell, to be brought before the Court there on the 14th inst, September 13. Judgment in o‘Regan v Richmond. This is a very peculiar case. The plaintiff o‘Regan sues the defendant Richmond for the sum of fIC being the alleged value of a cow, plaintiff’s property, which, it has been sought to prove, was killed on the 31sq July by a dog, the property of the defendant. Now at the very outset, I am placed wi 4k a difficulty. The plaintiff claims compem nation for a wrong alleged to have been done to him by the defendant. The wrong is stated to have been dona on a portion of what is known as the Dunstan commonage, and the plaintiff has admitted in cross-ex’’ animation that he does not hold a depasturing license to run any cattle thereon as is required by the law. The plaintiff is himself therefore a wrong-doer in the first instance. Had he not suffered his cow to destroy the property, that is to say, to devour the sustenance pai l for by other persons—namely, the depasturing licensees for the use of their cattle; had ho not in fact been a trespasser his cow could not have come to harm in the manner alleged. For every wrong there is doubtlessly a* remedy in law. But Ido think that it is incumbent on persons seeking compensation on the civil side of this Court to come to the Court with clean hands, and I do not think that they are entitled to damages such as are now sought when the wrong, it wrong there has been, has been brought upon them primarily by their own act, whether of omission or commission. Supposing an act of brutality, such as the causing, or knowingly allowing a dog to worry a cow to death to be proved, the aggrosser should undoubtedly be punished severely, for it would he an act deserving of the utmost} reprobation. But under such circumstances as have been disclosed in the case under review, (I refer more partioularly to the fact of the plaintiff not being authorised to run cattle on the commonage) lam of opinion that the remedy should | have been sought in the Criminal, and not on the Civil side of the Court.

But how stand the facts of the case as revealed by the evidence? The witness, Li’licoe testified to having seen Richmond’s dog chasing a cow between ten and eleven o’clock on the morning of the 31st, but he will not—he says he cannot swear that the cow lying dead is the same- He cannot even say that the hunted cow was branded with the plaintiff’s brand. The witness, Parcel Is gave evidence of a yet more vague nature. The witness, Beresford examined a dead cow about three or four in the afternoon, and it has been assumed that this is thesams animal as defendant’s dog was seen driving earlier in the day. Beresford could not say whether the beast was -warm when he saw it, but he told the Court that there was not any appearance of blood flowing then. It was not lying near the place where the living cow was seen by the other witnesses, nor has there been a single link offered either to connect the two circumstances relied on, (namely, the chasing of a live cow in the morning, and the finding of a dead cow in the afternoon,) or to identify the one animal with the other. It must he remembered too that no evidence has been adduced to show that the hunted cow, as seen in the morning was torn or bleeding as the dead beast has been described to have been, For the defence the defendant admit# that he did cause his dog to drive a cow from out his paddock, he taking down certain rails to facilitate her egress. There is nothing in that proceeding, so far, which is not justifiable. To keep a dog for the purpose of expelling vagrant and erratic cattle is a very common, a convenient, and perhaps a necessary course, and I sea nothing reprehensible in so doing. I cannot say as much of defendant’s allowing the dog to follow the intruding animal as he has been described, and indeed admits to have done. He should have called the dog off as soon as the cow passed beyond his boundary, and I caution him to be careful of his future conduct in tins respect. If a man causes or suffers his dog to destroy, or to maim <r wound cattle, he is liable therefore, and by the penal law he incurs the risk of not less than throe, and it may he of fourteen years imprisonment, if such an offence should ho proved against him, and the question of authorised depasturing could not be raised in such a case. Richmond the defendant however further states that he has examined the cow lying dead, and he positively swears that it is not the same beast as his dog drove in the morning of the 31st July. In the face of this positive evidence, tho negative evidence tendered on behalf of tho plaintiff cannot be regarded. The affirmative has not been proved, and the case therefore falls through. A nousu’t asked for by plaintiff’s Solicitor. Plaintiff nonsuited with costa. Thnmas Hewsou, charged with stealing from a dwelling, was committed for trial, James Neil, Richard Fellows, James Anderson (alias Maori Jack), and Thomas Hewson, charged with sheepstealing, were fully committed for trial. Several small debt cases were struck out for non. attendance.