RESIDENT MAGISTRATE'S COURT.

Mataura Ensign, Volume V, Issue 236, 9 March 1883, Page 2

RESIDENT MAGISTRATE'S COURT.

j .-.;, ,:■;;] oir/jaQEgi,};-.. 1 . „■,.;/{,!/* j Ttxbsda*, 6th Ma*oh, 1883. , „. ! (Before H. McOalloeb, Esq., 8.M.) ; GariioT. J. Bathgate, Hayi.iahdfTurjabuil:!.* Claim, £75. Mr Johnston for plaintiff, Mr A. Bathgate. bf.Dunedih for defehdapts.j | This wa» an action for damages) for trespass by Bheop alleged to be the property of defendants. ...■* . •=? V. ■•' •.>[;;.,;.: :.? 0 ;;^ ; y\ ! ,Couneel : "^.opening ,tho ...case said hup client was. a ( farmer in .the Tuturau district and,o^ner'x)f section 22, t>ioek X, futurau[ ? Plaintiff, said thkii sheep fromtheT'lslay^Jputf* had trespasßed on his pro^iertyf from' ihtf iStfc* jOctober, 1882, to 3rd January,; 1883, and from the 19th January to. the end .pf^ll^tto^^ 1883. A large portion of his ; saction had bean under crop in iwhaat aud oats, and notwithstanding the remonstrances he. -had. ,made ,to the manager of the Islay run, the sheep had 'continually been on his property and had done ? great damage to his crops V hence ithij, prfaen^j. faction. An attempt had been made to come (to some amicable arrangement' of the matter ivrith the firat-named defendant, but without Isuccesa. " ;. , .■ • . „ ■■. y.\. , • , Mr Bathgate wished ,to know who.< (the defendants were—the New Zealand MortIgage Association or Messrs Batbgate, ,Hay and (Turnbull? ' ; After argument by counsel, His Worship (ruled that the defendants were the parties ! named, and struck out the words in fcho ? p^ jticulars referring to the Mortgage Company, i granting leavej however, to amend if found : necessary. ...... Mr Johnston then called p . John Meiile, farmer, who, being' B%ora^ said— l live near the farm of Mr Jainea Garrie, and saw the trespasses complained- of during the months of October, NovemberV December, January and February, j irirM fencing on the land and saw oi^.many poca T ; sions sheep -branded A on plaintiff!*, cropitf Witness produced a memorandum book ( in Which he had entered the dates upon which ha had seen sheep on plaintiff's property 'and the number of sheep. I saw sheep* 'on^the crops on October 15th (106. sheep), 16th (143) on the 18th I was unable to aicerfcain tha number of sheep ; on 19th, 20th, 23rd, 24th, 25th;,28th and 30th sheep jww.ofl c:e :> i e^ 0 P but I did not count them. , On Ist and 2nd Norembsrl law sheep" there, and on sth counted 92. Sheep were again trespassing o n the 9fch, 11th, 12tbj 13tb,fl7th, 20th and 25th November, though I did not count them. On ;Dedemb'er ! 2nd'therewere 4.7, ;] and^they^ Y^fo trespassing in largeV or smaller numbers -on the 6th,vl2th, 16th, 18th and 20, th December' It is not easy; to count sheep running down a slope'or in long tuWac: On 26tb;'.'and;>27th December, the sheep were again on the crops. Idid no^^ee them again until the 21itr- Jamlary, as in the ihterralthey^had 1 been mustered fo^ shearing. r On 2lß<i January I counted 64; on the 24th, 64 i ( 2stti', 22 ; 304 l6T>&rbary^2nd, 20 ; 3rd, 20 j 10th, .43 ; >6th718 J ].bth,'6 ; 20th ; i ; 6. '"' The darna^ done^y'tHe sheep was not very extenßive {J/ u'n'til the end of December • and<beginnjn|f of January, bs the crops were not in eat? until then. There

would be about 16, acres of wheat and .84 ncresofoatsoh plaintiff's property. Fartoi tHe'^at* "we re "cut about the beginning of February. The crops would have been f ullj worth £6 an acre if they had not been destroyed. I estimate that the crops would have yielded between 70 and 80 bushels to the acre. About 7 acres of wheat and 43 aores pf oat B were damaged, -and £2 an acre is a fair average estimate of the damage done. The oats were a clean sample and Bhould hate easily Realised 2s 3d per bushel. That part datfajged would not yield 50 bushels to the aoreV I ' Oh two occasions I went through the crops with MrMcAuley and drove off clipped sheep branded A. Had seen defendants' men driving off the same sheep no later than last night. Mr John Bathgate, of Dunedin, told me the week before last (28rd February) tha t he had bought in the Islay run on the 17th January, arid that Mtf McAuley was managing; the run for him. I told him his aheep were annoying Garrie, and he said that whatever damage they had done he would pay for. I wanted the job of putting np a fence between Bathgate's and Game's, but Mr Batbgate ■aid' he would mate Garrie pay half the cost of erecting the fence j he was a bad neighbor and'he' (Mr Bathgate) would give him "hi 8 belly-full of law." Part of the dividing fenc c had been putupby Garrie. The run of which Mr 'MoAuley 'was 1 manager was known as the 1 1slay run/ Cross-examined by Mr Bathgate: When speaking to *Mr Batbgate. he did not say who the mortgagees were. The land belonging to Mr Garrie ia open on one side, but that tide was 'fenced' by bush. Section 12 is bush land. .Mr TrumWe has no sheep in that ' locality., ,;None of the crop was on the ridge. The crop was .poorest next the school reserve near. the Miniihau, stream. The orop des" troj ed was in what ,is called the valley, I was asked by Garrie to take a note of the number of sheep, I saw on : the place from the 25th January, McGilvray and. Scott were, on the ground with me ;.,they. mustered the sheep' and drove, them, away., . I have no interest in either land. or crop. in question.. , Re-examined by Mr Johnston,: I have, not t^e slighteat.doubtithat, the. sheep I saw on . the, crop; were aUJtoranded A, and that, I unde r stand, is Mr McAuley's brand. RoWt Crawford, eworn, said:.! know Game's landau Tuturau k where I was harvesting during- the; flatter part of last . month » : • I was there only: about 40 hours* On 4th Feb. iuary I was visiting Garrie't and saw 20 sheep in the bats, which were within about a week of 'being ripe. ' They were in the crop all the lime.lwasat Garrie's— about an hour. The' sheep would, have ,done considerable damage during that time. The crop was a heavy oneI saw the brand A on all the sheep ; the brand }< was on ; the off side, on the fore shoulder. I saw no Bheep on the land, when I was harvesting. • ■■_■':■■•'■•■• JameS ■ Crawford, sworn, said : I was binding at Game's last month. The crop had been trampled and damaged by sheep. About 30 acres of oats -were harvested during the time I was there j< about 12 acres bad been badly damaged; the ea*s had been eaten off. Cross-examined by Mr Batbgate : The land is flat where , the crops ; were,, The orop I was engaged in.harveating was; alongside the Mimi" hau, and sheep from the lslay property would haTfttocroßSjthatetceam before they could get into the crop. . :• : ' John Gregg, sworn, said : I have seen sheep on ,G,arr^e'B, land seyeral times during the laij month.: Saw, sheep on the . oats at different imes jbince October,, and also on the wheat. I •w. sheep several times in -the , crop after i* was in „ l.bave jeen'as many as a score: o* * Bhe,epiinthe,oropij . 1, , was .harvesting with P Garrietthreo qt fow days,.butisaw/no aheep in the orop at that time, though the,; crop had been a good 'deal tramped andeaten. I a6»isted,in.narveßting over 30, ; acres, , and, in my opinion,! more than three r partß of the crop had been badly, damaged. The crop would haw yielded, Bo,bushels to, the acre if it .had: not been damagod,,but it will not yield more than about 30 bushels now. The sheep bore the Way, .brand—the, letter A— on the side, hip, or ; fore shoulder, according to the age of the sheep.. : ■. Cross-examined by Mr Bathgate l About three parts of the 30 acres was damaged, and in addition there were a few acres of crop that it was impossible to out. The piece of crop we ,were un able to cut was on the jfa'r side ( oi the crop next the Mimihau stream. The sheep did' not cross the thick crop to get to, that side of. the crop) they came i down off. the hill side. They would, in that case, come through Meikle's land and t hrough section H, which was not fenced. could get throu^seo.1 3 . There was some "crop on f *^ge i'j'jfctia, land was not of subH good quality 'there ; as other parts of tyie farm. The yield Would 'not' have g^ne 80 bushels to ( the acre at that B po'i Besidey 12 acres damaged very seriously there were sit acres totally destroyed. Eoberb Bridsoti, blacksmith, sworn, said : I was at Qarrie's land on 4bh February and saw -about SO sheep on his place. Threo people were in the act of driving them from the orop. Meikle was one, I did not notice in >what condition the crop was. James Garrie, plaintiff, sworn : I took a memorandum of the dates on which I saw sheep jon my property. They were on constantly from 13th Ootober to Ist November.. In' number they varied from 40 to 20. lhey were on the orop on the Ist, 2ndi stb, 9tb, lltb, 12th, 13th, 17th, 20th and 25th Nov. The oats were coming through the gronnd at that: time and I paid a man 7s a day for Watohing when I was away; On December 2Hdi (> 12fcb; 16tbi 18tbj 20th;- 26th and 27th the SHeep c were trespaßsing, aud on, January I9bh I cotfrifced 64 ; on the 20th, 64 ; 24tb, 66 ; 25tb,i 22, ' On February sthi 7th, 10th, (48) ; 16th, 19 th, and 20bh I saw them again. All the sheep were branded A on different parts of the >bod j~mostly on the right side. I received a notice to fence from the owners of gection 7, block X, TatUTau, signed, by John Batbgate, ..R.. Hay and George Turnbull. About 5 or 6 aoreß pf the orop were so badly damaged as-to render it unfit for cutting; that part of the orop might have yielded 50 o* 60 bushelstto the acre. Other parts would average 80, bushels. arid some from 60 to 70 I bttßhele, I nevet saw any sheep bearing any other brand in the o,rdp. I have never seen I any, other* sheep or cattle niar , my land. I ffhere are Uor 16 acr«a of wheat not yet I cni and l all /more or less damaged ; four or I muohso thatit, won't be worth |^pfc£Jroßß-examinedby Mr Bathgate : I went S^Borigh the orop with Mr MoAule> early in 'T&ruary and told him I would take <25 in 1 ■ettiement for the damage, That was after I I had sent in * Olaim for £50, and the £S5 was S' nt i tt I did not t»ll Mr MoAuley thatthe ] W* » wtiou ia

not brought in consequence of my having been served with a notice to fence, for I had put in a claim months before I had received that notice. The part of crop most damaged was the part nearest the Mimihau Creek. Mr Johnston to Mr Batbgate : Will you admit that signature (producing letter) to be the signature of Mr John Bathgate, your father ? ' Mr Bathgate: I admit nothing. j Mr Johnston : Then I will ask you to step into the witness-box. ! Alexander Bathgate, .a solicitor of the Supreme Court, residing in. Dgnedin, sworn, said : The signature to the letter produced And dated 3rd February is, I belisve, that of Mr John Bathgate. The three signatures to I{he notice to fence are, I believe, the signatures of the three defendants in this action. Mr Johnston : Thank you— that will do. Mr Bathgate : Now that I am here I may as well say that of my own knowledge defendants are not the owners of any sheep in the Tuturau district. They were directors of a company holding a mortgage on the land, and on the 19fch January the land was sold through the Registrar of the Supreme Court, Invercargill, and bought by the company. Alexander MsAuley, manager Islay station, sworn, said : I took charge of the station on 23rd December, 1881. I received nay salary from the New Zealand Mortgage Company, through Mr Bathgato, of Dunedin. The cheques were sigued by Mossis John Bathgate and Hay. I bi.ve all along been paid by cheqiu-, signed by the gentleineu named, My instructions have come from Messrs McLew and Co., otDunedin, and Mr John Bathgate. I received my appointment from Messrs McLean. I went through the crop in question once with Mr Meikle and once with Mr Game. The Islay sheep are branded A on different psrt3 of the body according to their agee. Mr Bathgate contended that there was no evidence as to the ownership of the sheep and submitted that the plaintiff must be nonsuited, His Worship concurred* though he hadlittle doubt the sheep were owned by the Mortgage Company. The defendants were only middle men. The plaiutiff muet be nonsuited with costs £3 3f. i After the adjournment for lunch the cases | ifiret Bet down for healing, aud which had beeu adjourned, at the request of Mr Bathgate, to allow of the previous case being heard, were called. ABUSIVE LAHGWAGIt. Philip Heffernan was charged upon the information of Kenneth Mac Donald, teacher, that he did, upon the 10th February last, use threatening and abusive language to. wards the said Kenneth Mac Donald. Mr Henderson pointed out that the information was incomplete inasmuch as it did not state where the alleged offence was committed. Hiß Worship, to complainant : Where was the defendant when lie used the language you complain of ? Complainant : He was standing inside the fence upon his own section, Your Worship. Mr Henderson : That is not a public place, Your Worship. | His Worship : No ; and the case must therefore be dismissed without costs. THE PROHIBITION CLAUSB. Upon the application of JohnMcPhail, for whom Mr Henderson appeared, a prohibition order was granted against William McPhail, farmer, of Otariaj notices to be served upon all holder a of Keen seß at Otaria, Pukerau, Waipahi, Gore, Gordon and Mataura, 1 civil oases. Vale v. Kurtain : Claim &-4ii7e. No appearance of plaintiff. Case struck out. Mr Johnston applied for costs to defendant-fal-lowed £l Is. \ Turabull v. Turnbull: Claim £3 17s 6d. Mr Henderson for plaintiff* Judgment by default for amount claimed with costs, £ l lOa 6d. • " . . White v. Aldridge : Claim, £10 Us. This was a judgment summons. Ordered to be paid forthwith, with costs of court, 15s ; in default 14 days imprisonment, Mac Gibbon and Sons v. Neithe t Claim, £1 6b. Mr Henderson for plaintiff's. Judgment summon?, Adjourned till next court day, . Mac Gibbon and Sons v,' Sparks i Claim»

'£7 18s 4 J. Mr Henderson for plaintiffs. : Judgment for plaiutiifs with coats £1 14 a. . Sinclair v. Murphy s. Olaim £5 16i Bd, No appearance o£/either party. , Case struck 'put. . ■..'••-, ; Gregg, and Stephenson v. I>. McLean , Claim £62 4a 9d. Mr Henderson for plain- , tiffs. Mr Aldridge appeared, for defendant, and pled "Not indebted," After hearing . evidence, His /Worship gave judgment for plaintiffs for £42 4s 9d with oosts of court '£2 8s 41 and professional coats £2 23. Ooßtello v. Sheehy : Claim £9 43. .Mr Henderson for plaintiff, Mr Aldridge for der : fendant. This was a claim for. board, horsefeed, money lent, &c; Judgment for plaintiff amount claimed with costs 3ls and 21s solicitor's fee., LsaV9 to appeal was rafused. ■Gregg and Stephenson v. Devoloski : Claim , £2 9a sd. Mr Henderson for plaintiffs, De- s fendant produced receipts to show that the. amount sued for had been paid.' At this ■. atage the case had to be adjourned till next . court day iv consequence , of the disappear - ance of a witness^ . : Hood v. Jenkins : Claim £20 4s 3d. Mr Henderson for plaintiff, Mr Bathgate for:, defendant. This was a claim for. goods supplied. Defendant admitted all the items except the last two, 3 hew rollers £12, and a • set of horse-trees £1 16s. A'set off, £7, for a ' cow supplied to phtiqtiff on 22ad October was ' putini . . , : ' . ; Peter Hood, blacksmith^ . sworn, said i I ' received orders for making the rollers' for ' defendant. I suggested that they were too light as he ordered, but defendant said not. ' He took one Bet away ten days or so before" he came for the others, and had worked them ' all during the season. He had' made so coat' ' ' plaint of the rollers until he had been asked ' for payment. The rollers were made accord- - ing to defendant's own dimensions. I bought a cow from him as & cow in full milkj but' when I got the cow home I found she was nearly dry. I complained to defendant arid ' he agreed to take the cow baok if I paifl him £2. .-:■■■ • \ :■:.' ••!/».;, Cross-examined by Mr Bathgate: I took the cow back three times.' The rollers were' made of black pine. It was 'stipulated (that ' they wer6 to be made of totara. butnofc being', able to procure totara, defendant, who wanted i the rollers at once, instructed me to make them : i of what wood I could get* The.horse.fcree's'j;) were made to defendant's order but he had'i' not taken delivery of them all j the ; sett w&j, ' however, broken. ! ■ : •■'"• William Meara, carpenter, sworn, said : ■I- : made the rollers at Mr Hood's orders. Defend- f ( ant examined the rollers after they ; were ; finished and took them away on the 28th Oot; •'«■„ Defendant returned them at the close df tn» season. 1 • • ' • .■-.')!•?■:( Mr Bathgate said the case for the defendant '■■ was that the rollers were not turned dub in< a( ; •". workmanlike manner. As for the cow it -had i ! never been returned by plaintiff although i defendant had agreed to take' it back, > William Jenkins, defendant, sworn, said?: n One of 'the three trees ' had 'never ; been -> delivered. '• The rollers were not : properly ' finished and were in fact turned out in a tery ' unworkmanlike manner, They would hot i work properly—the men could hot sit on them to work them , and they left mo 1 after rolling ' about 200 acres. - I had td'go to Doiiedin 'td' v jet another roller to complete my 1 work.' I' had an interview with plaintiff and complained' 1 pi the rollers but all I could get from bimwai' f "Oh! anything will do for Ptikeran," : ' : fxei : ? A pUed/'Weli; whenl oonie W p&jr 1 for'thenf :> H they won't do," : ' . .•-•;-f--'; ■.-.■■. , : f> Cross-examined- by Mr Henderson ':' 'I tav' ' the rollers lying- outside the carpenter's sho^i ' one day as I was riding 'past. ' I' did not' • examine them closely. • ! One 'of ' my men' went ! f to the carppnter's anfl : fob& tKe-'rollers to my i farm. The rollers were" taoY" put- property ! together and : the frames DSoame'lo6's'» ri after-' about three days' work; I boughVa Cambridge 1 ' roller ; in Dunedin, for which I paid £18i I 1 ordered the three sets.of trees but have npi'' received them all.' ' ' . ' W. C. Jenkins, sworn, said : At the first ' attempt to work the rollers one of them fell" to pieces. I only rolled about 200 asres with those rollers. Plointiff brought the cow back ' and returned it to me. I don't know where f ,the cow is now. : ' His Worship : There should be a warranty that the rollers had not been made in a. work' manlike manner. The evidence is very evenly balanced* .."'."' ; . '^n : Mr Bathgate said he had previously asked fIH for an adjournment to 'secure the" attendance of an independent witness as to the unwork- ' manlike manner -in which the rollers had ibeen turned out. . , ' His Worship thought the rollers had been made in accordance with defendant's ordet.B and would, therefore, give judgment for £J8 48 3d (deducting £2 for th« cow), : court fees '. 275, , witness's expenses 10s, and professional; 'Costs £ils •. „ „,..,'; Brown v. Todd: Claim £15 13s. M«. Johnston for plaintiff. Mr Henderson for defendant. ; This was a claim foe wages on a ;! contract at Wyndbami ; ... |( . The plaintiff fsaid that he was engaged- ab^ 8s a day. and he was to pay his share of . the ! ". tucker": account with the other meni < Hw ■■■ share came to £3 3s, for which he gave credit; ' He had also received in caßh, £s 10a and an" order on Mr Simson for £1 (which he gave \ to Robert Dick tocaßhbutl he had never/, received the amount Mr Simaon told him:, that the order had been paid. Defendant} Baid he engaged plaintiff and was to pay him j what he was worth. -Two : days after plaintiff,, began. working he (defendant) < told him be: would give him £1 a week and " tuoker,'f> Plaintiff worked for him six weeks and a half- / and had been paid £6 10a. The order for £1 v had been cashed by Robert Dick. v • Judgment for defendant with costs £1 ll«' The Court rose at 7 p.m, ' ;/