RESIDENT MAGISTRATES' COURTS.

Grey River Argus, Volume XIV, Issue 1805, 19 May 1874, Page 2

RESIDENT MAGISTRATES' COURTS.

COBDEN,

Monday, Max 18. (Before C. Whitefoord, Esq., R.M.) CATTLE STEALING.

John and Patrick, Warren T and. James Fitzgerald, of Ten-mile" Creek, ""were charged on remand with stealing and driving one bull, two cows, and two bullocks, of the value of L 45, the property of Wallace and M'Kenzie, of Coal Creek. Mr Perkins appeared for the-prosecu-tion, and Mr Guinness for the defence". The following evidence was given : — - - Edward M'Kenzie : I am a farmer at Coal Creek Flaty in company with William John Wallace. We have a dairy' farm, and own a large number of cattle. We : usually turned them out at Coal Creek until 12 months ago, when we discontinued doing so as we had lost so, many. ; About 15 months ago we. turned out two . cows and two bullocks — a strawberry cow with a bell on her. The bell was marked ."horse teems." ■; ,1 swear positively to the, ; bell produced as the one, both by its peculiar , sound, by its general appearance, and marks. It . was . attached to the cow by a strap. The other was a red cow with white on : belly and over the tail]. : .We called her "Rosa." The strawberry was ■..branded by a blotched " J.N;' ; the red one was not branded. The red bullock bad white on each flank, arid- was ; named "Darby," but not branded. The. white bullock had red spots and was named V Jerry,!' but was not branded. 1 saw these cattle about ten months ago up Coal Creek, and with them a young bull .of 'a, greyish color wasjrunning. He would then oe about four or five months old, ; and unbranded. He was our property, and supposed to be " Rosa's "• calf, as she was in calf when turned out. On the 20th April I started to look for. these cattle. I went up Coal Creek and, got their tracks on the dividing range between that arid the Seveu-!mile, leading towards the Seven-mile. I. came home, and on Saturday, 2nd May, I rode out by the beach .to the Seven-mile. I called at the place of a man named Camps to ask about the cattle. While there John Warren passed with two horses. He could hear what I was saying to Camps. 1 went then up a track leading to the Seven-mile, and found the two cows, two bullocks arid the young bull I have described. The .strawberry cow had the bell on her then. I chopped down enough feed to last them for a few days, till I could come back for them with assistance to fetch them back. While returning, 1 met one of the Warren's at the Darkies Terrace. I think it was John. He was driving two horses loaded. On Monday, 4th May, , I returned with John Tindall, for/the purpose of bringing in the cattle, but cou.d , riot find; them, although we searched/all, over; the flat till dark- We noticed where three men had been camped. The following morning we searched the flat again, and found tracks of cattle and alßo footmarks of men and a dog having followed them. We followed them down a short distauce, and left them at a small creek, and went back" to the beach in the direction >f Warrens' place. We noticed men and cattle, tracks coming from a terrace on to the beach. : One man's footmark we noticed! particularly, both on the flat and on the beach. It appeared to have a boot with heel and toe plates, and had nine rows of small roundheaded nails in one part, and a few squareheaded nails in the heel. (Boot produced.) This corresponds with the footprint. >Ye -followed the tracks along the beach, up a terrace, and as far as Warren's, slip-rails, about a mile and a half from Warren's house. We got the tracks a short distance through the bush and, then lost them. We then went to Warren's house, and Tindall stayed there while I went as far as the Twelve-mile, but could see no tracks in that direction. I : returned towards Warren's and waited near. his house till near dark. We saw his cattle come out at milking time, bat none of our's were with them. I heard, the sound of my bell and knew it at once. The bell was on one of Warren's cows'. I went up to the cow at once and identified it. On Wednesday we proceeded up'the creek to where we had traced , the ; tracks ; to the previous day, and followed them up to-, wards the head of the Seven-mile Creek' to a gorge. The cattle had apparently then been driven into another creek, then up on to a terrace and towards the- beach where we had picked up the tracks previously coming off the terrace, and leading i to Warren's slip-panels. If it had been; wanted to .'drive the cattle to the beach from where 1 left them they could have been driven down a cut survey line which ran from the flat to the beach, and then along (the beach. Warren's house is at the Teh-; mile. I could identify one of the tracks .we were following as that of the strawberiy cow, as she spreads her toes veVy wide. On Thursday we searched at the Nine-mile without success. On Friday, Bth May, I sent Tindall to search a part of the bush on the south side of Warren's house, and I went towards the house. I met jPatrick Warren and asked if he had seen any strange cattle about,. He Baid there was none but hia own. I told him I had lost some cattle and described them to him. He said there was nothing of that sort about his place. I asked him what sort of cattle he brought out of the Seven-mile Flat. He said he brought none from there. I asked him if his brother, or any person about his place had bi ought in cattle from the Sevenmile, and he said "no." I told him I had seen the cattle on the Flat on Saturday, and described how 1 had tracked them rip. to and through his slip-rails. He said it. was impossible ; it must be a mistake ; and asked if, l thought he stole my cattle ? I said I had information that, the cattle were driven from the Flat betwean four o'clock on Sunday night aud eight o'clock on Mond ay morning . He said he was at Pat. Regan's, at the Darkies Terrace, and his brother was at Razorback at the time, so it could not have been them. I asked him if he would muster his. cattle, and he consented. He took me up the side of the Nine-mile creek, then on a range, followed it round, and came out almost where we went in, and saw no cattle excej fc milch cows. We then went to Warren's to dinner, and afterwards into t c, garden, where Warren's father was at work. Patrick said he wan led-, to speak to his father. I followed after him. He asked his father ; to tell fiis brother he was going to the island to look for cattle. He and I then atarted for the island. On ithe way we. met Tindall, and he.went w\th vs ;V Tindall.led the way to,,a,piace where hVhadseen tracks. After going" a Bhort distance Warren said he : #ould go rid fiir*

ther, as his cattle were" not in that direction. He said it was no use their going together, and we should separate. I requested him to come on with us, but he turned back and left us;- We foutid the tracks of the cattle about twelve yards from where he left us, and followed them up. We found three head of cattle, but not mine. I then went up on [to a 'terraegj-rand^heard'a noise^ajr*of~somer person driving, cattle through, the bush. I pushed^hrough as fais't' as 1 could,- and Jound_the.cpat prpduce r d . : near „the,;side t of an oid race. I believe it was tlie °one v Warren was 'wearing. ■ -I lost the bracks, and returned tathe beach to see if Warren would come home without his coat. Nearirig the, house I saw the three prisoners driving. cattle into. Warren's stockyard.' There .were then three Beasts in the yard, and two on the, beach. I at. once identified them" 'as r my cattle, and claimed 1 them at once. 1 Patrick Warren said— ".There's, your cow ; she ,fol|owed oiirs." He" pointed to .the- strawberry cow. They were trying to separate the young bull, fromthe. cow. I entered -.tlie yard,, when . John, jWarren .came on .one side of me arid^Fitzgerald, ,ori the other, and said—? ( , Clear f , out of ; this ; you, / are not coming here ;,. to; taken the. > (mark's and tokens of the cattle." I walked out. Patrick had gone'towa'rds'ithe house, and aa I passed I saw him with a ; guri in his handl" 1 I came to 1 town, : applied ;: fo'r a warrant, and, accompanied by Sergeant Neville, got back .to Warren's house between 2 and 3 a. in. on Saturday. .We found the cattle. in a yard at tlie- back of the yard I last,, saw' them in. The yard was against a high cliffy with, as large hollow ; in the -rock. : The place was divided partly by r boards, t The yard was, divided from the .'first Tyard! by a high feuco. No 'person passing on the ■beach could see them in r the; inner yard, unless he. went' through the outer yard and looked over the fence. The gale was nailed up with five-inch spikes. I took possession of the cattle, and brought them home. They have been.in my. posseision since, and" are; the same row!, outside the Court. . ...• , ... , ,'■. '.,'.'../•' By Mr Guinness : Patrick Warren claimed the cattle as his. ;I did ■ not actually ask: him to give up possessiomof therii, 'but I said they .were minei Fitz-! Gerald said they were noirmirid, iirid i; ti)la me to clear out of the yard. Re-examined : When -1 left the cattle, on Friday they were riot branded, bjati when 1 found them. on Saturday . morning they weie branded with a W. on the rump. I was present when the bell was| found by Sergeant Neville in. Warren's! cow-shed. When i l came up to Warren; at the stock-yard he had no coat on. \ Williaih'Jdhn Wallace: j ama: farmer, at Coal Creek, in partnership with last i witness. I have seen the? cattle!'in thei yard, and identify the,tri : all as!|riiy pro-i : perty., _. - r :' ;.;;.;' ..!;!/,,., .Z'!S/r i J<)hn .Tindall gave at some. leu'gth cor-! roborative evidence regarding the track-' ing and finding- of the cattle, as stared by! .M'Kemrie.; "■■ ;... ?. ; ■: : r^;- : J \ A large number of witnesses were examined as fo the identity of the catsfe,j but it is useless to give their evidence J as! the. question of identity was afterwards! withdrawn by the counsel for -the defence, j In defence, Patrick Warren .made the! followinsj< .statement : A bout . five; years, ago I bought some cattle, two head, froni Nancarrow, ; on the Grey, as agent fora! man named Max. I then bought two| head more from Samuel 1 , Hill,? and then I bought a cow from Mr King, Bank of | New Sorith Wales. I then bought "four! head of young cattle front j Maclean.' ij bought a cow from Miller, a drover, goingj along theilbeach. -I :then bought acdlfj from Evans, up Coal Creek, and another! from Hildebrana, butcher, in the Grey.J I lost the cow I bought from Miller, and the two young beasts I 'bbughitfrom^the cattle drovers. , I lost.the i one r I bought from Sam. Hill, ; arid the^brie 'l briught from Hildebrand, and the cow I r bought from Mr King. The four I bought in the Grey I had in Evans's paddock* up Coal Creek for a month; before! took- them home.: When I took them' home onefell; over a bluff and was killed, andl lost the! others. I lost one I bought from Evans.j All these cattle went into the ranges atj the back of ortr place. I went to see them occasionally. Some of the young cows were in "'{calf' when turned out and slipped the calves. We found soirie^ and seven head we do not know- where th^y; are. ,T hay.e. spent, days looking for them.! My brother was mining at RazprbackJ and came to work with me when I lost the! cattle. On Sundays or any days he had to-' spare he.wentout to lookfor themtoo. I w v ai tired of looking for them, buif iriy brpthei continued the ; search. ■; He said thebesl thing 1 could do was to sell himitht chance. I said alLright,'if you : give- me L 5 you can have the chance of what yoi find of mine. He was often looking for them. Fifteen or twelve 1 months after} wards soriie miners told us they found icattle i"; tracks back further, tiian we hjid been looking, in the direction 'oli the Seven-mile, and between our place 'arid there,' at «i place called Rocky Creek. M^ brother went there -with Skelton,-. and itold me he found tracks of cattle Jpretty fresh . I afterwards went with my brother^ found tracks, but did not get the cattle} We. tracked : them pretty : lpw down to the Seven-mile Creek.- I was told by thfe survey men; they found' ;\tracks..on thb survoy liriej f rotn Seven-mile to GoalCreele. I was told by Batty he saw two mobs of' cattle, one on the sand on the banks of the Seven-mile. He said there, were seven in one and thirteen 'in another. |T told Batty they "in'iiSt be some of mine. He s.iid he would! spend a day and show • .them to ;me,. , He said he was frightened of the cattle and did not go near them 1 , and could give me no description of them. The last one I lost .was running with our cattle at the foot of :the Sevfln-mile.Creek^ and wasone J bought from Evans. Therb wpre five or six running at the foot of the creek, arid we found them all 'but/one within a mile off where we found thMisputed lot. When we heard they werja turning ; in ithe r Seven-mile, my brother and I often made up our ririhds to go and look atithem, tosee.if they were ours> I had no time to go with my brother, bo I sent James Fitzgerald^ a;man.whb worked for wages, for us, I! .toldvthpm if they found any cattle not to bring them, but to leave them until I could go arid see if they were the onesl.lost. This was six weeks ago,'. They . were away ttjro days, and came backed" Said 1 they found five head pf-cattle. . I asked what sort they were. They said . one was v a' cow with a belliu I said thei cow: with the bell,don't : belong to us, whaLare the others like ? They told me there was a young cow, young bulljjand two bjuUocks, young one* I said theßOripiW; aria|srer the d?'

scription of some we lost. I said we must go and have a look at them. I said did you leave them wheie you found them, and they said yes. I asked where they were,* and they said in the valley of the Seven-mile. Day after day we put off going to look for them for about five weeks. About three weeks ago the three of us went together. We went on the : ;28th,ofw^priUaBt J toJopk^rJJbßjn ; the thrietjof , us together We remained out onO- Wednesday and Thursday/ and found the cattle on Thursday evening. WrfiaTiio I 'drive K ttiemr imeTTißoirß« at them I said the' cow with'the bell was not mine; the other four answered the description of those I lost. They seemed wild. We decided .we could not fetch them home alone, and .we went for some quiet cattle. Then we thought it was too much; trouble to take the quiet , cattle so, far: in, rand we would ■ try/to 4rive them as they ; were. , ; VVe went on Monday, i.tHe 4th of May last and found the cattle again, and tried todrive the four without the cow. witb the bell, feut could not. The cattle •rashed'a^a^'down^tW-.fla^ald.it was only by the noise ot the'lfeli'we^knew wheret o gotoVJ Isaid'to inylbfotHer'and Fitgerald, we may as well drive' the 'lot ' together, l and i after .we get . those of ours branded we will advertise the' ; one with the- bell^and the owner; wiltilikely^.turn up. The cattle were rushing 1 , abbut- the flat a long time before we could get them anywhere; after some time we managed to_get';iJieni i: ieade'd,;- ; in a northerly direction. We came to'a river, and diet, not exactly ; know where' we were'ai 1M lime. We^ ,9roMod tfie^^v<^(sm)An'|£i#^ 'the Seven r mile !]Cre!ek. ! ~ ; The[ qjifite'jfeip ! p.p'|t f (>r some distance ■ be|6Jre ,we , could .head them. When we did so 'we went for tne beach as near as we could. Justat snndo.wn: we got. out on the Seven-mile Beach. Once the. old ,cp^ ., got ktuck where there was some fallen timber, and I found a branch was stuck in the. bell-strap, f Icut the Btraptoget her loose;!,;'!, threw , the bell to my brother, said whoever claimed the cdwwbuldiwanfc'th'd ibell.A iWeJdrove the cattle to the Nine-mile Bluff, and then' drove along the Government track to within ;arrmile ( of our .own hoiise," where' we 'keep 'otlr 'quiet "cittie, and left them there for the night.'! isliv the morni.ngjmy brother (brought our quiet cattle,: and turned these in with them. I came into the Grey to get a brand made. On Thufsd&y, after :I<ggtjhomeMish „the brand, I told my hrother. we would brand those cattle the rifextra^ In the morning I got^ up 'early|i®ia»went to see the cattle^ to : see- if '■ they* we're r ail rigHO^k cook two horses with, me, and tied themTv <ip near the Be^ch/ 'as' lifwasI if was going to the ,Sey.en 3 mile.'onr other'busine.B8 i v .J;Ußt[aß/I was coming a10ng.., 1 met M*Kenzie* ; he asked me what I aid with the cattle I brought 6ut'-o r f th'rs;e'veft2mile?' n l?Baid howdid*you'<Kti6w i l brought cattle out of the' Seven-mile. He said he tracked them jtol the .Ten -mile Bluff, and cpuldnot track ' them further. Then, lie 'said, tie wanted j j o see every head J had. r I said all tigfit; i if y,)u come I wyistiowyou where they i were ; left'on Tuesday morning:;' 1 that I | left them in a valley with a range round ; it, or. hearlyisoi .-.1- aaid when. ; ypu /; ; drive j cattle here they -take to the - .rigUt, ,pr left, I and you find them on the. ridged We ' went along, and found the bracks of the cattle as we went..- We came; out on the ; Ten-mUe;;Bluff, , where ; my;, milch, .cows i .were. They were^tw.opf the young : pnes ; we' left on the island with' the milch' cows. ! I said we'may 1 as well- go'h'o'me Mid | have something to eat, - and ;we .will i see if my brother 1 knows* Where '.they j are. When' ww e ir\ r went niy brother was : not=' therei* I asked I my father where he Was. He said he did not know where he was, unless he was up the Ten-mile Cree.k^|p,oking for timber for a bridge we had:4a ?i coj|sfoct for. I told my father to^teil^^JM^when he came home that I hadjgßtie i?HEhe island with 'M'Eenzie.' When^M'Ken'zie ''and I 'ment i down the beach we met. TindalL He Baid he found some tracks up a' gully ? near the Nine- mile .Creek. -Tindall. asked me where our dry cattle were running. ' 'I told 'him we had p'iii; them intoftheislah'd on Tuesday/ and : they'were'"B ; 6mewhere : in"h6re behind where we were standing, in* the ( Nine-mire r bnsh; Tindall said we will go up here,: and startedup: the creek.: > Psaid you can't go up: there; J After he went ud a T iittle he~ turned back, finding"l^wwlr right. Tindall ;then -said there musbbdf a creek between here and the Nine-mine, and I said there .was not, L said I" will go, with,ypu' to show you, there is no "creek between this and the Nine-mile Bridge. After we got ',to the, bridge he Baid the creek must be further up ( the creek, where I found the, cattle tracks. I said J would go either up the creek or show him where I left the cattle. After we got up s.ome little way Tindall said we will go up Tiete, and we went up theteirratie for a quarter 6f ? a mile or so;; J ss^l don't' Be'e ; the use of the three of vs 1 travelling abng in this. way. If the cattle are there, you , yvili. find them ; without^ ; me,' and/ 1 s:»id to M'Kenjjie i ' willigo ijt)me,'|^4ip, and I. went home, .W^enl!got;,th'ere'niy brother and, >Eit^g6ra)4,w^^ said to my brother, where are the cattle we brought from: the Seven-mile ? He said. they were late last night, about a quarter of a mile sorith of ! our^plnce,, and about SOOyds in .the t bpsh..,4 faijdf, . well, it :^Qnjt; taj(.e . r us ; ! long to get^thera, we may as welr ( drive theni in. and .brand, .themjrio.w. .'.'. \^e/^siii.for : .''iii[e l m f . : «^^ )^fe c,§s.J went for .them I saw M'lfenzie conning on to the beach. We then drove, -tiie cattle out of the bush on to thebeaohand into the yard, that.is the four we claim as pnrs, the bid "cow we did not drive mi •The young one rushed. out, and while in the act of separating it from the old v <|)w M'Kenzie came, up. He, aaid, I 'claim that cow as my property, meaning the old cow on the beach/ .'Voryj well, I said, if she is yours you can take her ; I don't, know who owns her, arid he said that' is 'the' cow ttiat^had'the bell otii \ said, vory well, the belli* :fn theiho^Be, you can take it too; M'Keniiethen looked |nto, the yard and Baid,,l claim those four too. I said .they^'Hjeife exactly like some Host some time since. : - We found them in the boßh and ; jneantr to stick to them. M'Kenzie said we^fust let the'law settle it.v:tßaid, vet^j well the law is open to you. and as soon as yon shew you have a better right them than I i haye, you can 'get -them. M'Kenjtie i went into .the.yard; and I said, have ybu come iritb the yard to take the marks and tokens of them *to" lay information; If ybU 'are' so certain they are! ypri^ypu will be able.to describe. thbm..!withojit u cqniing in here, q MjKenziethen "Went away, «nd we put the cattle into another vaglfgnd fastened the.gateawith^n^ilß, as there m*

(2'V mwtMitfw o/ mm, iw*'4<kyage.)

no other way of doing ao. We then branded the cattle — the four head we claim. M'Kenzie took away the old one as he went. We were going to let the cattle out with ours in the morningDuring the night Senior Constable Neville came. M'Kenzie wanted to break open the yard, and I said I would not let him. Neville said, yon are my prisoner, and you must not interfere. I asked M'Kenzie what he meant ; did he think I stole them, and he said no. M'Kenzie broke the gate and took the cattle,-and said he would be responsible for what he did. I said all right, I'll make you pay for them yet. I have several head of cattle in the bush, and I. don't know how to proceed unless I do as I have done in this case. In filing my declaration of insolvency I did not put down any cattle, as I had sold the chance to my brother, and we afterwards went mates when I went through the Court. The cattle I had were sold to Glenn Bros, under a bill of sale, and re-sold to my brother by auction . In support of this statement three witnesses were examined. This closed the case, and the defendants were all committed for trial. Bail was accepted — the two Warrens in two snreties of L 250 each, and Fitzgerald in two sureties of LIOO each. The Court then adjourned.