Resident Magistrate's Court.

Marlborough Express, Volume III, Issue 132, 22 August 1868, Page 4

Resident Magistrate's Court.

BLENHEIM — Monday, August 17, 1868. [Before S. L. Muller, Esq., R.M., J. Balfour Wemyss, Esq., J.P., aud J. Ward, Esq., J.P.] •T. JELLTMAN V. D. WEMYSS. £2 and costs had been paid into Court. Mr. Pitt, for the plaintiff, said the action was brought to recover £6 for gravelling at the Commercial Hotel. The defendant had undertaken a contract for the work at £9, which he sublet to plaintiff for the sum now claimed. The work had been done and passed by Mr. Douslin, and defendant had received the money, but now refused to pay plaintiff, alleging that - he had agreed for so many loads of gravel. The agreement produced was for providing and spreading so many yards 6 inches thick. James Jellyman, contractor, deposed to the making of the agreement, and completion of work. In cross-examination by Mr. Nelson, who appeared for defendant, he said he considered a yard of gravel to be a superficial yard; if a load was ordered he should not understand it to be a cubic yard, but should reckon superficial measurement; would charge 6s. a load for carting; some carts would hold 2 yards, but his would hold 3 superficial yards. It would take about 9 loads to spread 6 inches thick. It would come to £2 145., but that is not what I mean ; saw Howard there, but don’t know what he tendered at, nor what he said. He did say it wouldn’t pay me at 4s. a yard ; told him I would do it for that, but did not tell him any calculation at all; did not know why defendant refused to pay me the £6 ; he did not tell me there were not 30 cubic yards. By Mr. Pitt: Did not care to notice beyond the terms of my agreement. William Homes, builder and contractor, remembei’ed the contract in question. D. Wemyss’ tender was, £9 for travelling; had heard plaintiff swear that nine loads would do the work at 65., and yet thought the tender a fair one. Considered a superficial yard to be 1 yard square and 6 inches deep. Sand was always measured by the superficial yard. Mr. Nelson said he would prove that cubic yards were always understood, and called David Wemyss, carpenter, &c., who deposed that he was in the habit of buying gravel. Had not had occasion to buy any before, but had heard others speak of cubic yards. When I got the contract, both Jellyman and Howard asked for the work, and tendered to do it. Plaintiff said a cart would bring one square or cubic yard. I offered to reckon a load a yard, and gave him the contract. Did not tell him where he was to deliver them. Howard’s tender was £9, aud he asked plaintiff how he could do it for the amount of his tender. He said he reckoned a load at “four bob.” Howard said his was at 65., and he did not know how it could pay him, as he had two horses, and calculated on bringing yards. Objected to pay plaintiff, because he had not completed his contract. By Mr. Pitt: Have been a master tradesmen over twelve months, hut have had no other gravelling. A cubic yard was 3 feet through each way, and a superficial yard 9 feet each way, and 6 inches deep. Will swear he said either yard or load. carter, was in the habit of carting gravel, and tendered for the present work. Made a remark to plaintiff that his tender was very low. Understood cubic yards were meant, decidedly ; there are no superficial yards. Plaintiff said he was to get 4s. a load; I was to bring 1J yards. I am a contractor when I can get a chance. Beckoned to get £l a day for himself and two horses. Should bring three loads a day. Will swear positively that it was a load he said. Mr. Pitt contended that the Court could come to no other conclusion than that plaintiff was entitled to recover the sum claimed; the only difficulty was as to whether a square or cubic yard was meant, which was shown by the agreement itself to be a superficial yard, since the depth was mentioned, Mr. Nelson said the sum paid into Court was 4s. 6d. less than he admitted was due. After long deliberation, the Chairman said the judgment would he for £2, the sum paid into Court, defendant to he allowed costs, £2 9s. STEADMAH V. irffiAE. A claim for £lB, for wrongful detention of skins, and dray hire. Mr. Pitt, for plaintiff, said this was a claim for damages to skins by detention. Plaintiff was a stockdriver, and was acting under an order from Mr. Seymour to destroy any cattle upon the Meadow Bank and Tyntesfield Runs. He had killed a number of cattle, and was in possession of 40 skins, which were left at Blarich Pass. Having procured a carrier, he wished to remove them to Templeton’s, and he made a further contract, for £4 10s., to remove them to Blenheim. When removing them defendant stopped him on the way and took them

from him, and the dray came to town without them. Plaintiff went to defendant and demanded the shins, which were eventually handed to him again. John Steadman Avas lately employed in stock hunting; being authorised by Mr. Seymour’s manager to kill all unbranded cattle on both the runs named; had a similar authority from Dr. Renwick. There are three steers, reserved by the latter, which I was to get in if I could. During July, we had about 42 skins in our possession. They were in the mouth of the Blarich Pass. Sent a cart from Templeton’s at the cost of £l, but defendant removed and detained them about a fortnight ago; had previously sent for them, but did not get them ; meantime sent a dray from Blenheim, which had to return without them ; only two of them were branded. Defendant said he was sure they were his; he went by merely looking at the others. By Mr. Nelson : Saw defendant himself; have liberty to kill all Ren wick’s branded cattle on terms named; know M'Rae’s run ; have seen no wild cattle there ; he said he ought to have some ; he did not forbid me to kill any of his ; we creep slowly up the scrub and shoot them; we look for the brands before we shoot; the skins were worth 10s. each, but we only got 6s ; we never cut pieces out; I was to pay £4 to bring the hides down ; four men were idle three days ; did not see any wild cattle of defendant’s running. After a consultation the Court said the Brands Act provided that no person should claim cattle over six months old, which were not branded. The question really was whether Mr. Seymour had a right to give the order. Mr. Pitt thought the Court was goingbefore the case, as the defence had not raised the question. The Court considered it a duty to point out grounds for opposition, but decided to go on with the case, reserving the point. P. O Brien, labourer, employed by plaintiff in killing stock, remembered him having a number of skins; none of them bore the brand of Mr. P. MTlae. A dray was sent to Templeton’s for some skins at Blarich Pass. . They were taken to defendant’s. By Mr. Nelson Saw the skins stacked on the road in the flats in Blarich Pass, about one mile from MTlae’s. It is not above one quarter of a mile from the boundary of Mr. Seymour’s land. Was two years and six months in defendant’s service, but never saAV any cattle on his run. All that we killed were unbranded. Phillip Hush, carpenter, was employed by plaintiff to kill cattle. About duly 23rd, we had 41 skins in the Blarich Pass, none of which bore defendant’s brand; drays were sent from Templeton’s to fetch them ; we were going to the hills again, Avhen we heard from John Nicholson that the skins Avere there ; was three or four days down ; saw none of defendant’s cattle; know his brand; saw some tame cows, herded together ; I expect to be paid for the detention. George Forrest, laborer and carter, Avas employed by Templeton to carry skins for Steadman; carded 41 from Blarich Pass to the station, but ought to have brought them back with me; defendant would not allow me to take them away; was a servant to Templeton ; went up for them again and brought them down; no other dray came for the skins ; saAV defendant, who said he wouldn’t allow me to take them; this Avas off the public road. Mr. Nelson applied for a nonsuit, as Mr. Seymour had no right to give an order to kill unbranded cattle, for they were not his, nor had it been shown that he had any. After a further deliberation, the Court determined to go on with the evidence. Mr. Nelson then appealed to the Court for protection on behalf of the Stationholders. v Philip M‘Rae deposed: I am a sheep a Justice of the Peace. There ought to be about 80 head of cattle Avhich I have seen repeatedly on both sides ■of the boundary ; some are branded “ME” on the ribs, others “ BS” on the near rump. Neither Seymour or Renwick nor their managers have sent me any notice; have asked Mr, Seymour to allow me to remove them, which he agreed to, but it was not then convenient; saw the hides on my OAvn land; the men had seen his cattle 3 months ago; I came up before the skins were loaded ; I bade him take them to the station until they were examined; had I been well enough, I would have examined them that day; I never examined them after, but I saw them going into the cart; I identified one skin of a black bullock, which I bought from C. Elliott, and it bore both his brand and my own. The hide in question had been cut, and the mark removed ; it was my intention to^,retain the skins as my property. . By Mr. Pitt: I did not stick the cart up; I detained them on my own authority; have resided there 16 years; will not swear it was not a bull ; could not see any brand on

the black animal; certainly I did not interfere to prevent him taking them away. John Nicholson was a servant, whose duty it was to do all he Avas told. Have been with defendant three months. On June 28th, saAV a herd of cattle of his within the boundary of our run, adjoining Mr. Seymour’s run. SaAV the hides at the stack ; saw a black one among the lot; a portion was deficient; all round it slices had been taken out; two were not half the hide. There was also a strawberry, like one I had seen on the run. By Mr. Pitt: Have not seen all the cattle on the run. Cannot say those described were like them. Robert Scott had seen wild cattle on defendant’s land among the hills. There was a strawberry and a black one. The latter seemed to be cut across the root and tail Avhere the brand should be, but looked as if the tail had been cut off. All the skins were cut this Avay. P. M‘Rae, recalled, had warned plaintiff before he Avent on to the run. Do not recollect Mr. Seymour stocking his run with cattle. Do not know where these were shot. Mr. Pitt addressed the Court for his clients, Avho Avere not runholders, nor yet J.P.’s, but simply poor men, seeking a livelihood by a hard and dangerous pursuit. The conduct of defendant avus illegal in detaining the skins, Avhich, even if he did suspect them to be his, such suspicion Avas afterwards dissipated, or he Avould not have given them back again. His clients had suffered a grievous Avrong, and been put to the expense claimed. lie considered he had proved his ease, and asked for the A r crdict in his favour. The Court had great doubts as to Avhether the case should not be dismissed, on account of the Branding Act. Plaintiff Avas Avarned not to go on defendant’s run, and he had a right therefore to order them to stay at his stockyard while he examined the hides. Judgment for the defendant, Avho Avas allowed £3 ss. costs. TUESDAY, AUGUST IS, IS6S. [Before J. B. AVemyss and C. Goulter, Esqs., J.P.’s.] M. 0 UNX V. EUGENE JtULLEII. A claim for £6 17s. 6d. Mr. Nelson appeared for plaintiff. Defendant did not appear. M. Gunn deposed that he had supplied defendant with the goods charged for. He did not dispute the account, but gave evasive answers to repeated applications for payment. Judgment for plaintiff, Avith £3 13s. costs. HUTCHESON V. WEIGHT. Mr. Nelson applied for an adjournment till next Court day, Avhich was granted. M 'IVOR V. SPAKKES. R. MTvor, storekeeper, ReiiAvick, deposed that the account had been rendered, and defendant OAved £9 Bs., the sum claimed. Judgment for plaintiff, with £2 4s. costs.