SUPREME COURT. CIVIL SITTINGS.

Evening Star, Volume VII, Issue 1983, 13 September 1869, Page 2

SUPREME COURT. CIVIL SITTINGS.

'Phis Day. (Before His Honor Mr Justice Ward.) His Honor took his seat on the bench at ten o’clock. DRAPER V. MURRAY. This was an action to recover damages for false imprisonment and malicious prosecution; the amount claimed being LI,OOO. _Mr Macassey appeared for the plaintiff, William Draper, farmer, Waitahuna; and Messrs Smith and Harris for the defendant, Thomas Murray, sheep farmer, Mount fetewart. The following evidence was given on behalf of the plaintiff : James Pillans Maitland, Resident Magistrate, Tokomairiro : The present plait tiff was, on the 14th December last, brought up before me on an information, signed and sworn to by the defendant, charging Draper with “having, on or about the month of March, feloniously stolen, carried and taken away a certain white cow, the property of the said Thomas Murray.” He was remandeil, on the application of the police, to enable them to procure further evidence. He had been brought up on a prior information during my absence. On the 21st plaintiff was again brought up, and the present defendant gave further e\idence. The prosecution was conducted by Mr W. D. Stewart on behalf of Mr Murray. Draper was ultimately discharged. Const tble Smith was called to produce the watchhouse book, in which it was alleged the defendant had signed the charge agaiost the plaintiff. He said that it was in the possession of th * watchhouse-keeper at Tokomairiro ; he had not been subpoeoed to produce it. William Draper: I am a settler, and reside at Waitahuna, and have lived there two years and nine months, and previously resided at Port Chalmers. I have known t’ e defendant for about eieht years. He resides at Mount Stewart, which is about ten miles where I live. On the 9th December, 1867, I was arrested on the road between Tokomairiro and Woolshed by mountedconstable Smith. I w as taken to Tokomairiro, and locked up in the watchhouse, where I remained from Friday afternoon until the following Monday morning at eleven o’clock. On the Saturday I was brought up before Mr J. L. Gillies, J.P., who would not release me on bail. On the Monday I was brought up before Mr Maitland on a charge of stealing a cow, remanded, and finally discharged on the 21st. In 1863 I attended an auction sale of some cattle belonging to Mr W. C. Manley at Tokomairiro. I bought seven cows and four calves for L7B ss. I proiluce the receipt of Messrs Driver, Maclean, and Co., the auctioneers. The brand on them was M under a bell. All the cows and some of the calves were so branded. 1 put the cattle into a yard at Tokomairiro, for the purpose of branding, but they had been turned out and escaped. I had previously sold one, and another died. I sold two others some time afterwards, so that three cows and two other calves got away. I did not see these latter until 1866, when I found them on Mr James Smith’s run at Tokomairiro. I found two of the original cows, and six of an increase * I took them and retained them, Xn February, 1867, from inf- rmation I received from a man named M‘Pherson, I went to Maitland’s ridge, about three miles from Mount Stewart, and I found the other cow. It was a pure white cow, with the exception of a reddish tinge on the points of both ears It bore Manley’s brand on the off-rib; it bore

no other brand. There were five or six in* crease, they were all running together. The increase ; with the exception of one young heifer, were branded with the defendant s brand, TM on the off rib. I will swear distinctly that the cow was one of the seven I bought at the sale at Tokomairiro. I drove the cow and the increase to my place. I was assisted in doinvso by M ‘Pherson, who was at that time stockman to Mr James Smith. When I got them home I put them in my yard. I wrote a letter to Mr Murray. [The deposition of the defendant was here put in, with the view of showing that he had stated in the Resident Magistrate’s Court that the letter had been lost.] His Honor ruled that the depositions were in id mis-able for that purpose. Mr Macasscy then called the defendant, who stated that he could not produce the letter, as he believed that he had destroyed it. He might have stated that he had torn the letter up immediately after he had received it, because it was an abusive letter. His Honor consented to allow of secondary evidence as to the contents of the letter being given, but expressed some doubt on the point. At Mr Smith’s request, his Honor took a note of the objection. Mr Macassey intimated thot he should give evidence as to the contents of the letter at a subsequent stage of the proceedings. Examination continued— I met the defendant at my yards the day after the cattle had been brought in, and a conversation took place between us. We had an argument upon one of the cows ; and I offered to leave the matter of ownership to be settled by arbitration. I pointed out the cow I purchased at the sale, aud asked him whether or not she belonged to him. He said “No !” I asked if the steer that was sucking her belonged to her, aud he said “ Yes !” All at once he remarked that the steer had not his brand. I turned it round, and showed his brand on it, remarking, “ there it is, as big as bull beef.” He said ‘‘there has been a mistake someway, you may take them,” I said there was another cow on the run which I did not take ; and he told me that if they were mine 1 could take them. There was the cow and four calves in the yard at the time. The cow in respect to which proceedings were taken against me was one of the five defendant saw when in the yard. The next morning I branded all the cattle in the yard with my own brand. I subsequently turned them out in the neighborhood of the defendant’s hut. About eighteen months since I met the defendant in the township of Waitahuna; and asked him what he meant by telling a man named Williams, from whom I was purchasing oats, that I would not pay him for them. He said that he never told him anything of the sort. I replied that I would rather believe Williams than him, I said “ you’re a strange man to tax other people about there honesty. Didn’t you brand five or six head of cattle belonging to me? He replied: “I never denied having branded them, but didn’t you brand one of mine.” I denied that I had doue so. In July, 1867, I met him at a muster of his cattle and noticed one of my cows amongst them. The cow which I was charged with stealing, was milked by me some five or six months afterwards. I had, in April, sold her to a man named Cowans, She was then branded J.C on the off rump. Cowan was in my employ at the time. When she became dry she was allowed to go on the run. I saw her a few weeks before 1 was arrested. The brands were then legible. The defendant never complained that I had branded his cow; neither did he ever, verbally or in writing, claim the cow in question as being his property. On the Saturday week before I was arrested, I attended a meeting of the Goldfields Wardens, and took prominent steps towards getting sheep that were running on the Hundreds removed. The defendant’s sheep amongst others were removed in consequence. The cow in respect of which the prosecution was instituted was returned to me after the trial of the case. I have suffered from the prosecution in many ways. My character was affected, and to bring on this case I was obliged to sell my crop immediately after cutting at a loss. By Mr Smith: As I was driving the cattle from off the run, a man named John Ross, a shepherd in the defendant’s employ, cried out to me and inquired where I was going with them. I told him I was taking them to my yard, as they belonged to me. Amongst the cattle we were driving was a heifer and calf, which Boss said elonged to him, he having purchased them from a man named Robinson. I then let those two go. Ross did not point out the cow which I was subsequently charged with stealing, and state that it belonged to his master. I swear that when Murray s ‘W the cows in my yard, as I have said, he said that there had been a mistake somehow, and that I might keep them. It is not the case that he admitted the cow I claimed as being- the one I purchased at Manley’s sale did not belong to him, but that in regard to the white cow in particular (the one I was subsequently charged with stealing), he insisted that it belonged to him. I never told any one that I had wrongly branded the cattle. When I sold it to Cowan he never told me that he thought it belonged to Murray; neither did he ask me to brand it before he purchased. I never had any conversation with one George Leslie during 1867. I never said to him, speaking of the cattle, “ We had bluffed the old out of the cattle or that “ Macpherson and I had made it square between us. ” I never threatened to hammer Leslie because he said he was going to give evidence against me. * Alex. Macpherson gave evidence corroborative of that given by the plaintiff. John Sinclair was called for the purpose of proving that cattle belonging to Mr Maitland had been found iu the defendant’s possession, and branded with his brand; and the latter had to give them up. His Honor declined to allow the question to be put. Henry Moore aud James Robertson were called for the same purpose, but they did not answer to their names.

Daniel Ryan stated that he was a cattle owner and resided at Waitahuna, He saw the cow in question, when the plaintiff was brought up on the charge of stealing it, was branded J.C. T M, and with a shamrock. In 1867, it was placed in his care by Cowans, and was placed in the goldfield’s run. It was running close to the defendant’s hut. Six months before the prosecution had commenced, witness told the defendant that the cow was in his possession, it having been sold to Cowan by Draper Defendant told him (witness) to have noth'ng to do with it, and told him not to brand the but he did brand them. He said that he had claimed it as being his property. Sub: sequently he took the cow and its increase away-

Mr Macassey intimated that if the case extended over to-day, he would produce the watch-house book ii-morr >w. The following evidence was given for the defence : - Thomas Murray, the defendant; I have lived for about eleven years at Mt Stewart. I have been carrying on business as a stock farmer, partly on freehold, leasehold, and in Hundreds. In February, 1867, I possessed about three hundred head of cattle running in that neighborhood. My brand is TM ; I have used iu for about ten years. I use an ear-mark, viz., a fork on the near ear, and a back bit on the far ear for female stock, and vice versa for male stock. In 1859 I purchased twelve head from Mr Jon s, of Waikouaiti ; they consisted of cows with their followers. I placed them on the Waitahuna run, which was then in my possession, in the ch rge of a man named Feter Uobuison. They bore Mr Jones’s brands; but before turning them out I branded them with my own brand. Amongst the cattle was a brown one, the progenitor of the cow in dispute. [The witness here entered into a history of the animal.] In March, 1867, I went to Drapers yard. There were three cows of his branded M with a weather bell, and two steers and a white cow belonging to me. I asked him what he was doing with my cattle in his yard. He said that they had been branded by some of my people by mistake. I said that that could not be as I was always present at the branding. X never admitted that tne cattle did not belong to me, nor did I ever allow him to keep them. In April, 1867, I sold 200 head of catt'e. They were mustered on the run, having been brought from a part of it called Ross’ flat. Amongst them was a cow belonging to me which bore Draper’s brand. This cow remained in my possession until lately. The cow, the subject of this dispute, was branded with another brand, and its ears had been so mutilated that my car marks had been obliterated. The reason that induced me to set the law in motion was thcVfc I had lost several cattle, some of which 1 believed, from circumstances that came to my knowledge, to have been stolen by the defendant. I certainly believe he stole the cow in dispute. I only saw ene of the progeny of the brown cow. I never instructed any member of the police force to take the plaintiff into custody. I learnt for the first time that he was in custody two days after his arrest. I was summoned to appear as a witness in the case of Regina v. Draper; I believe the summons was signed by Mr Maitland, R.M. I appeared at the police court, Tokomairiro, on the 21st, in consequence. The case was then remanded for a week. 1 was there asked by the police to sign a paper as a matter of form ; I don’t know what it was. They said the case could not go on without my doing so. I don’t think I read the paper, or that it was read over to me. I can’t recollect whether I was sworn at the time. I did not know that a previous information had been laid by the police when I laid the information. I did not know that he had taken any action before the Board of Wardens.

[Left sitting.]