RESIDENT MAGISTRATE’S COURT.

Evening Star, Volume VIII, Issue 2280, 27 August 1870, Page 2

RESIDENT MAGISTRATE’S COURT.

This Day. (Before A. C. Strode, Esq., R.M.) Civil Cases. J. H. Sibbald and Guthrie v. Robertson. A claim for LSO, being L 45 for loss through non-delivery of four cows, and damages by trespass L 5. Mr Harris for the plaintiff; Mr Stewart for the defence. From the evidence it appeared that the plaintiffs occupied land under lease from the defendant at Tomahawk on the Peninsula. The deed of lease was prepared by Mr Ross, son-in-law to Mr Robertson.

Mr Stewart took objection to ihc stamp on the deed of lease, as not being su : cient. It appeared from the terms of the lease, that one of the conditions was that the lessees should have the use of four milch cows for two years. This document was therefore a lease of laud, and also an agreement in reference to certain cattle, which were not accessory to the land. That was a distinct object, and he contended the stamp duty on the demise of land was not sufficient. He quite admitted, if the lease had been a simple agreement, it would be sufficient, but inasmuch as it related to a distinct matter from land, it ought to have had a 10s stamp and perhaps also a 2s Gd stamp. The GGth clause, under the head “lease,” states “Lease and agreement of a lease for the' tenancy and occupancy of any lands, tenements, or hereditaments.” Now it was singular enough in the schedule the word “property” was not mentioned, there was no provision made in the Act for a lease of personal property. It had been decided in England that where two objects were included in one agreement, one involving a higher stamp than the other, it was invalid if only stamped with the lower priced stamp. Mr Harris': Should his Worship decide in favor of the view taken by Mr Stcwa-t, he would be prepared to pay the additional duty necessary to give validity to the deed of lease ?

Ilis Worship would not at the moment speak positively, but was inclined to adopt Mr Stewart’s views. Mr Stewart would, under the ciic iinstall cos, not press the objection. The case then proceeded. J. H. Sibbald said that he and his partner agreed to take a certain quantity of land, about forty acres, of the defendant, one of the conditions of which was that they were to have the use of four cows. Defendant refused to give them in language too gross for repetition. The cattle of the defendant had trespassed up to the present month upon the land leased by the plaintiffs, notwithstanding frequent remonstrances, and though repeated applications had been made, the boundaries of the property had never been defined. The loss to the plaintiffs through nondelivery of the cows, was about forty quarts of milk a day, which, at 21, d per quart, gave a loss of 8s 4d a day. They had also sustained a loss of L 3 through the trespass of defendant's cattle. This was confirmed by the plaintiff Guthrie. In cross-examina-tion, Guthrie stated they had received milk for a pig, which was supplied to the plaintiffs by the defendant gratis, rather than it should be thrown away, and that the milk consumed in the house of the plaintiffs' was paid for. D. Nicol, gardener and dairyman, said milk in Anderson’s Bay district was selling wholesale at 2j.cl to 3d aqhart. An average cow would give 10 quarts of milk a day, but some of the cows in the Anderson’s Bay district were said .to give 20 quarts. Some letters were put in, written by Boss, on behalf of the defendant, and between the defendant and plaintiffs’ solicitor. Ross, on being examined, stated the object of bis letter was to point out that an error had been made in the description of the land leased, both in situation and area, and that instead of 40 acres they could only have 30 in another position. Ho recommended the plaintiffs to agree tq an arrangement.

In cross-examination, it was stated that the plaintiff SibKald offered to sell his interest in the lease for LlO. The defendant Robertson admitted the agreement, and said that when applied to for the four cows, he told the plaintiffs they might have them at any time. He bad conveyed the land to his daughter and son-in-law, reserving a life interest in it, and was not aware of the correspondence to which replies had been given in his own mine, and which he had signed. The plaintiffs bad had two American buckets of mi k every day for three months ; it was good, usable milk, for which he hipl no use. For the defence, Mr Stewart contended that no time was specified at which the cows were to be delivered, and that as the lease was for twenty-one years, no unreasonable time had elapsed ; and as for the claim for damage through trespass, as the land was not fenced tho claim poulil not be sustained. Mrs Robertson was examined, bpt st tod nothing but was already in evidence. James Miller, son-in-law to the defendant, said lie had seen 45 to CO head of cattle on the leased land every day, and they were starving upop it. Ho had pet built q, hqu-e qn the Rasec} laud, but-qp his ;(mn property.

Afltfj reply to Mr Harris, the witness said tlie land on which his house was built' was given him by defendant. Mr Harris : Then he has given it to three parties, Mr Ross, the plaintiffs, and Sjjlf.His Worship said that it was evident damage .had been sustained by the plaintiffs . through non-delivery of the cows. He esti- I mated this at L2O, As to the trespass the evidence was not satisfactory. Judgment for the plaintiffs, L2O and costs. Respecting the objections raised by Mr Stewart to the insufficiency of the stamp, his Worship said that he could not re-open that question, for the stamp having been obliterated by the officer in the Stamp Office, it was decided by the Commissioner that it was for him to see that the proper stamp was affixed to any document.