Patea R. M. Court.

Patea Mail, 18 November 1880, Page 2

Patea R. M. Court.

Tuesday, before C. A. Wray, H.M., Dr Croft, and H. F. Christie. CLAIM FOR ILLEGAL SIEZURE OF CATTLE. D. WILLIAMSON v. TAPLIN. This was a claim for £SO as damage and expenses alleged to be sustained and incurred by Daniel Williamson, farmmanager near Waitotara, through the illegal siezure of cattle by a bailiff acting under a warrant of distraint issued at the instance of S. Taplin, merchant, Patea. The plaintiff manages the farm as servant of the trustees, who hold the propert}' for the joint benefit of five members of the family of the late Mr Williamson. This action arose out of the failure of Francis Williamson to pay his creditors, he having joint interest in the estate. A judgment summons had been granted against Francis Williamson for about £SO, and as he could not be found, a distress warrant was issued for siezure of goods. Tho'pursuing creditor being advised that Francis Williamson’s share in the joint estate could be distrained on to satisfy this judgment, the bailiff was instructed to sieze as many cattle on the farm as would satisfy the judgment. The bailiff siezed 22 head of stock, and placed them in Mr Dempsey’s paddocks at Waverley, under charge. Daniel Williamson then claimed the cattle or part of them as his private property, and as not being part of the joint estate ; and the 22 head were returned within a few days. D. Williamson alleged they were not returned to the same paddock, but were put in a paddock with inferior bulls ; and he claimed incidental damage for loss of value by not being able to guarantee pedigree of calves not ye*dropped. He claimed altogether £SO, as follows :

The defence was that the cattle were returned to the same paddock, and any damage was imaginary or the result of plaintiff’s own negligence ; that the siezurc was made on legal advice ; and that the defendant had offered to pa 3' for loss sustained, and reasonable expenses. Mr Duncan, Wanganui, appeared for plaintiff ; Mr Hamerton for defendant. D. Williamson deposed : In April I remember a notice being left at my house. I was in occupation of the farm ; the manager of it. Seven cows were taken belonging to mo, having my brand, and there were three very young calves. I had been selecting for years from the best cows in the district. I had put a pure bred bull in with them about two days before they were taken away. Four or five had young calves. They were all shorthorns. I went at once to, Waverley and demanded them from the bailiff, telling him the claim of Taplin against Francis Williamson had nothing to do with these cattle ; and that unless they

were given up at once I would take legal advice. I went then to Wanganui. There was no water in the paddock at Dempsey’s where-the cattle were kept by the bailiff, except ' a tub at the back door, holding about 8 gallons. I am sure. my cattle would not drink there. I demanded them early nest morning, after they were removed to Waverley. I returned from my solicitor at Wanganui and served notices for return of the cattle. They were returned two or three days after. My expenses in going to Waverley three times would be 10s each trip, I went twice to Wanganui in a buggy, the cost being 30s for the buggy and quite 18s 6d for expenses. The journey to Patea is charged £1 : it would have cost me that much if I had had to hire a horse at 12s or 15s a clay. After the cattle were returned, I had to collect them, and had a person in to help me. A man and myself and horse coat 30s. That would be the cost if I had to employ two men. The solicitor’s fees in connection with the siezure were £3 Is Gd } which I paid. The cattle were returned into the big run, 1500 acres, where there were three bulls with no pedigree, two being very inferior. I mustered them from there into the other paddock. I pay particular attention to the breeding of cattle, and took three prizes at the Patea show the other day. I don’t know that any of these siezed cattle were among the prize cattle. There was a bullock on the run belonging to Mr Parsons, and I missed it after the siezure of these cattle. The value was about £5. I don't remember how long before that I had seen that bull. The calves were bull-calves, and were spoiled for the purpose I wanted them. I sold two of them for about 30s each, among a mob ; but I would not have parted with them as bull-calves till they got about 18 months old. The service of the pure-bred bull would be £3, and the calves would not be worth less when dropped. One cow slipped her calf when she came back. I had seen this cow being chased by dogs while at Waverley. That calf was by the pure-bred bull. I found a dead calf in the paddock. Cross-examined by Mr Hamerton : I found the calf dead after I had been mustering the cattle. They drove quietly. Are you not paid so much a week, £2 a week, for managing the farm for the executors ? Plaintiff : I get paid quarterly, and got a cheque last Friday. Have you any interest in that farm beyond the rest of the family ? Plaintiff: No, as far as that goes I don’t know that I have. The Bench : Do you mean the laud or the stock ? Plaintiff : I have permission from one of the executors to run a certain number of stock, but I have no authority in writing. I sold some cattle recently to Mr Duty, and received payment. Mr Hamerton : Just think whether you did or not ? Plaintiff: Yes, I received a bill, and sent it to Mr Todd, of Wanganui, Was the bill renewed in the executors’ names ; and your name struck out ? Plaintiff: I swear I don’t know, to my knowledge. Have you authority from both the executors to keep your cattle ? Plaintiff : I have looked on Mr Todd as the principal. But you have not the authority of the executors ? Plaintiff: No, but I have Mr Todd’s permission. Was there any limit to the number of cattle you might run for yourself ? Plaintiff: JS"o. I believe Mr Ke/Ia spoke to me once about making a return of the number of cattle on the farm, but I have never bothered about doing it. I occupy the house, rent free, and have £IOO to manage the farm. Did you go to the nearest executor ? Plaintiff : No, I went to Wanganui, to see my solicitor, and I went to see Mr Todd. I am not authorised by the executors to keep any horses on the farm. Then you do not occupy this farm? Plaintiff ; I occupy it so much that I have got cattle there. Then you are not the occupier, but arc only a paid servant ? Plaintiff : I occupy it when there, and am in possession. Are there not some 700 head of cattle belonging to the family jointly ? Plaintiff : You say the executors are in possession. Have you not stated to one of the executors that there are 700 head on the farm belonging to the family ? Plaintiff : I never made any but a verbal statement, and that might be 12 months ago. I have sold some since then , and there may be 600 now. I have em-

ployed labor on the form, and have no doubt I shall charge that to the executors. Were the journeys you charged for made during 4 days ? Plaintiff : I don’t remember. Were you not paid for those days by the executors ? Plaintiff : I believe I have, to the best of my knowledge, and I suppose I have given a receipt for it, Did you pay for a buggy to go to Wanganui for two days ? Plaintiff ; No, but if I borrow a buggy from my neighbors I pay it back in othe l ' ways. From whom did you borrow it ? Plaintiff : I borrowed itfrom my brother-in-law. Ho was going to Wanganui, and ho went with mo. Perhaps he would have gone himself if I had not been going. Have you paid him for the buggy V Plaintiff : No. Is £3 18s 6d a reasonable charge for a seat in a buggy to Wanganui, Plaintiff : I went twice, once in Mr J. Dickie’s buggy, and once in Mr Andrew’s buggy. Have you paid either of those persons ? Plaintiff ; No, but I shall have to pay them in other ways. Is ten shillings a reasonable charge for a saddle horse in going four miles to Dempsey’s at Waverley ? Plaintiff : Well, it would he worth if I had to hire one. Did you hire one ? Plaintiff : No, I caught a horse on the farm. Did you make the visit to Patea the same day as you went to Wanganui V Plaintiff : It might have been the same day. When your cattle were taken from the farm, did you not receive a notice that 22 head were taken ? Plaintiff : I saw a notice. Yon have charged £8 8s Gel for riding about the country, and do you consider that a reasonable charge to make for your time, in addition to the £2 a week paid to you by the executors ? Plaintiff : Yes. Mr Hamcrton : Before we go farther, I am entitled, in mitigation of damages, to show the animus with which the present plaintiff has brought this action. At this stage the Court adjourned for luncheon. Mr Hamcrton (on resuming) proposed to show that the plaintiff or his solicitor had made three separate claims, each for a different amount. Mr Duncan objected that any offer made by him was made without prejudice to his client’s right to recover the whole amount, and he objected to any claim being gone into except that now before the Court. Mr Hamcrton : My letter before the Court says we arc prepared to pay what Is reasonable ; but lie never claimed any damage as the amount actually suffered. But we have no reply that wo can put before the Court. Mr Duncan : I replied to that making a a certain claim without prejudice, and 1 object to its being put in as evidence. Mr Hamcrton : Have you had any conversation with Duncan McGregor, and did you tell him you would make it hot for Taplin if your brother was arrested. Plaintiff : I don’t remember having said so. James Peal deposed : I am a farmer at Waitotnra, and sold two cows to the plaintiff. As to the cattle siezed and returned, I should say three of the cows with calves arc worse now than before. One of the cows would not be worth 30s when I saw it last. It was an average cow before, worth £9 or £lO. The two cows he bought off mo are very poor, but I can’t say bow much of that was caused by the siezure. The calves have not thriven well. At weaning time they should fetch LBto L 12 .: The value of a calf slipped would be, with service fee, about L 5. Three of the cows were not milked while at Dempsey’s, and when the calves got at them they drew the bad milk, and that would 'injure them. ■-Cows would not drink water from a tub near a bouse. The fact of cows being for any time with inferior bulls would bo sufficient to destroy their selling value as pure-bred stock. The amount of damage sustained would be the difference between 30s as the value of ordinary stock at weaning, and the value of pure-bred calves at weaning, a bull calf being worth £lO to £l2, and heifer calves £8 or £9. Cross-examined by Mr Hamcrton ; At the present time it could not be ascertained whether a. calf-was the result of stinting by the inferior bulls or by the pure-bred bull. The time is not long enough. The calf that remains ’now looks only five months old, but its age is about seven months.

j Re-examined : The average value of the ) cows now claimed for would be £9 to .£lO cadi.

Owen Hawes deposed ; 1 have been a judge at cattle shows. I saw these cows three wseks ago, and their value would he £l2 to £l4. If calves cannot be guaranteed as being from a purc-brcd bull (a bull-calf should be worth £10), its value would be reduced to that of ordinary stock. In Dempsey’s paddock cows could not be quiet, there being dogs and men about. The roan cow pointed out to me looks very poor now ; worth only about £3. It appears to have been a good cow. J. Chadwick deposed : There is no natural water in Dempsey’s paddocks. The only water is by the kitchen door of the hotel. There are always people catching horses there every day. This closed the plaintiff’s case.

Mr Hamcrton asked for a nonsuit. He said the plaintiff had failed to prove that the cattle were ever removed, or to what paddock they were returned.

Mr Duncan : I must call attention to the letters from the defendant which admit the thing. Mr Hamcrton ; The fact of an admission made by the defendant’s solicitor does not prme the plaintiff’s case. As a matter of law, he has failed entirely to prove the damage for which ho sues. I say also that D. Williamson has no locus standi in this action, being neither the occupier nor the tenant. Ho is only a servant on the farm, and as such ho lias no pre-emptive right to make a claim of this kind. Whatever action there might bo for illegal or improper siezure, would aviso from the owners of the soil, and not from a servant employed by them. Therefore I ask for a nonsuit.

Mr Duncan replied on this point, contending that tho plaintiff, as private owner of some of the cattle siczcd, irrespective of his joint share in tho farm, could sue for damage to his own stock. Tho Bench : We consider that the plaintiff being in possession had a right to maintain this action. Mr Hamcrton : Then 1 must call witnesses for the defence.

S. Taplin deposed : In April last I obtained a judgment against Francis Williamson for £SO, with costs. After tiiat I caused certain investigations to be made, by a solicitor's advice, into Williamson’s property, and upon that advice I caused a warrant to issue for a destraint on Francis Williamson’s property, called Buenos Ayres station. 1 was aware that his interest was one-fifth of the station and everything on it. After the bailiff had entered, I received information from him late on the second evening after tho cattle were taken. It was Saturday night, and too late to telegraph, but steps were taken first thing on Monday to comply with a notice received from Mr Duncan. A letter was written hj - my solicitor offering to pay any reasonable damage that the plaintiff had been pin to, but no claim for damage was received. When this action was brought, I was at the time suing the plaintiff’s brother, and ultimately had to foico him into bankruptcy. Immediately after I received a claim for £SO, or proceedings would be taken without any option. A few days after that, I received a notice of this action. Tho hire for a horse is os for part of a day and 7s 6d for a whole day. A buggy ane horse cost about £1 a day. Cross-examined : 1 did not get any information from the executor. I got a copy of the will from Wellington.

Mr Duncan '• If D. Williamson owned a fifth part of the 22 cattle you siczcd, which part did you intend to take—the leg or t Ire tail ? Defendant : I seized enough to satisfy the judgment for £SO. W. Connolly, bailiff, deposed : In pursuance of a warrant issued in April, I siezed certain stock on Williamson’s farm, and left notice of the removal. I drove the cattle to Waverley, with two assistants None escaped from the mob. There was very fair feed in Dempsey’s paddock where they were put ; quite as good as Williamson's. I arranged with Dempsey that he should give them water every day. D. Williamson called on me next day and claimed the whole mob to bo returned to him. Ho did not complain of the feed. Ho served me with a number of notices on Saturday night. It was too late to' take action, but on Monday morning they were released by instruction. I did not know I was taking mother cows away from calves, and no one made any suggestion to me at that time, George Alexander deposed : I assisted to drive a mob of catttc in by the first gate of Williamson’s farm. They were all delivered without loss, and were driven slowly.

Rupert Jacomb deposed : I assisted Mr Connolly to seize about 22 head of cattle on Williamson’s farm. They were driven quietly. None were lost. There was not a big bullock among them. Mr Hynes assisted also. I have had large experience with cattle in Australia. W. A. G. Winchcomb deposed ; I received 22 head of cattle from the bailiff, to take charge of under his warrant. I did not see a big bullock. I returned 22 head. The feed-at Dempsey’s was good. About equal to Williamson’s feed. There was water at the pump in two zinc cases and a large tub. I saw some of them drink three or four times a day. I visited them three times a day: they were always quiet and feeding, and apparently enjoyingthcmselves. I employed Alexander and O’Brien to drive the cattle back to Williamson’s farm. The water would be 20 to 30 yards from the hotel. Thos. Kells deposed : 1 am one of the executors under the. will of the late Mr Williamson. Mr D, Williamson is employed to look after the farm and stock at £2 a week, paid quarterly. He had no other interest whatever in the farm but as a servant ; to receive instructions from the executors, particularly myself, as it was agreed that I should give directions. I have repeatedly called on him to make a written statement of the stock, but tie has not done so, and it is certainly his duty to do so. He has no right to employ labor, except such temporary labor as mending a gap or trimming a fence. He certainly has no instruction or authority to buy or sell slock on the farm.

The Bench objected to farther questions as to soiling stock to Mr Doric, as being irrelevant to the point at issue. Witness continued : I was not informed of any trespass on the farm, nor of any damage. Wo divide the profits of the farm among the members of the family, and D. Williamson gets his share like tho others.

Cross-examined : I am a relation of Mr Taplin by marriage. It was agreed by Mr Todd and myself that I should give the general directions about the Buenos Ayres estate.

Duncan McGregor deposed ; The plain" tiff told me that he did not consider (he amount of damage much, but if Taplin had conic and apologised to him he would have said nothing more about it. lie mentioned the same thing to me several times. In the presence of Brewer, of Waitotarn, he said now that, the warrant was out for Ins brother, he would make it Hot for Taplin.

Cross-examined : J. am a victim of F Williamson in a pecuniary sense. Dan said “ I would have been good friends with Taplin, if he had apologised, but 1 did not think much of the damage.”

This closed the defendant’s case. Mr Hamcrton addressed the Court in defence. Ho submitted that the plaintiff had no locus standi, because he is only a farm servant, and is not an occupier. As to the two pure-bred calves he contended that the plaintiff, by want of due cam was contributary to any injury by not taking care tofeed the calves in the absence of their mother. -The defendant’s witness had put the cattle back in the same paddock as they were taken from. The utmost dcligonce had been shown by the defendant in returning the cattle upon notice received. Ho had offered to pay reasonable damage. Tho plaintiff had not given him any option to pay reasonable damage, but had proceeded to sue for £SO. The damage could only be nominal. Five months and more had elapsed between the alleged damage and tho bringing of this action. This action was begun immediately on the plaintiff’s brother being apprehended under a warrant as an absconding debtor. Considering the,animus and the other circumstances, he asked the Court to give a verdict with one shilling damages. Mr Duncan addressed the Court for the plaintiff. He said the reason for not bringing the action earlier was, as the plaintiff had stated, that the solicitor (himself) was too busy to attend to the matter. He considered the amount claimed for buggy hire was a marvel of cheapness, and asked for the whole amount of damages and expenses, £SO. The Magistrates, after ten minutes’ consultation, gave judgment for the plaintiff for £25 and costs of suit. The money was paid. Wednesday, before H. S. Peacock and H. F. Christie. MALICIOUS INJURY to a HORSE. Thomas Turney, a foreman at the Patea railway wharf construction, appeared on remand to answer a charge of maliciously wounding a young horse, the property of Felix O’S. McCarthy, fell monger, by

cutting its leg with a spade, thereby severing the tendon, and making the animal useless. The value was stated at £4O

Sergeant Donovan conducted the case for the prosecution. Mr Hamcrton defended the prisoner. Felix O’Sullivan McCarthy deposed : The prisoner is a pile-driver for Messrs Proctor and Downes. He lives near the railway wharf, in a small hut near my land. 1 had a filly with other horses running near the prisoner’s hut. She was a light bay, nearly chestnut, two years old. On Sunday morning last, about nine o’clock, it was reported to me that one of my horses was hamstrung, and the only tiling was to shoot it. I saw it was my filly, cut about six inches above the hock. I observed a number of horses coining from the direction of the hut, also the injured filly in the same direction. The filly was staggering after the others. 1 valued her at £4O. I saw traces of blood on the ground about twenty-three yards from the prisoner’s house. As I traced the blood-spots up, there was more of it on (he ground. There were ten or fifteen people present. The blood was fresh. I sent for the police, and placed a watch over the prisoner’s hut. I also watched. Two others were living in the wharo with prisoner. I saw a spado behind the door. Prisoner made his appearance and spoke to me before the police came. He did not make any remarks about the horse. I suspected at this time that some one had injured the horse from the. wharc. I did not at first suspect the prisoner. As soon as 1 saw the spade shifted from the hack door of the hut I suspected the prisoner, because he said he was using the spade. He said he was in the wharc all the lime. He made no freedom with mo. At this time I hoard someone singing in the wharc. There were some twenty to thirty persons outside. I recognize the papers produced. They were handed to mo by Holmes. The blood was fresh on the paper to my idea. It was softer than it is now. There is a crease on the paper as if had been used to clean a spade. I received the second piece ol paper from a man named Williams. It contained more blood, but the blood on the other paper was fresher than this. 1 saw the spade examined by Sergeant Donovan. Prisoner told Sergeant Donovan that the spade was his. Ho said ho was working with U making a fire-place. I saw a sod of earth dug up at the end of the house. That sod was chopped with a spade. Tho spade produced was standing beside the hole. If blood had been on the spade, the chopping of this sod would have cleaned it. Prisoner said he wanted to put it on the hearth of his chimney. The chimney was the ordinary kind built in a wharc. The bottom of the fire-place was made of hard clay. The sides and bricks were nicely white-washed. 1 saw Sergeant Donovan take soil like that produced from tho foundation of the hearth. I was present when Sergeant Donovan examined the spade. I saw him taking the hair from the jagged edge, and I saw him take a second one off. The hair was like a horse-hair of chestnut color. The waistcoat produced was examined by Sergt Donovan in my presence. The blood does not look so fresh now.

Cross-examined by Mr Hamcrton : 1 am building an hotel fronting Portland Quay. I have had the filly since Axup’s sale) about five months ago. 1 gave £8 5s for the filly then. 'When J went down the horses were passing" the hotel. The filly was able to move on three legs. She moved perhaps two chains from where I saw her At first the blood was very slight. It continued towards some timber on which there were marks of blood also. The timber is about two chains from whore I saw the horse. There was a large pool where the horse stood. There was a pool of blood a few yards from the timber, but there was no pool of blood at the timber. The horse must have bled fast. I watched the wharc. I said something about the spade. I did not notice anything particular about the spado until Sergeant Donovan came. I did not examine the spade myself. I did not go near it, until I saw a man digging with the spade. 1 spoke to this man about my horse, and ho said it was a bad job. Others there said it was a bad job. They could not say otherwise. I will not swear that the blood came off the spade. I cannot say that the blood came off a man’s nose. By the appearance of the paper I should say it come from some instrument. I don’t know that the blood was cleaned off the spado by the paper. I imagine so. The blood would bo on the edge of the spade which inflicted the wound. I was present when the paper was picked up. It appeared to

me to be damp and soft at the time. The blood was fresher on one piece than on the other. Hair falls from both horses and cattle yearly. I consider the hair that was on the spade could not have been rubbed off with two spades full of earth. The hair taken from the spade was the same color as my horse’s hair. By Sergeant Donovan : The blood I first saw was a pool, and I traced itfrom there towards tho hut. Dr Keating deposed ; I wont to see the filly on Monday. It was then dead, and had boon ham-strung. I think the spade produced would be extremely likely to make the wound. I recollect being shewn the vest produced on Sunday night. The blood on it docs not look as fresh as it did then. I would call the filly a light bay or chestnut. The hair I examined by a microscope this morning, and it presented a similar appearance. I examined tho paper covered with blood, and it looked as if it had been wiped on a spade or some such instrument. Tho paper fits in to the mouth or edge of the spade. Alfred Trcsodcr said he slept in the wharc with prisoner, and on waking on Sunday morning saw him laying clay on the fire-place. No one else used the spade that morning. W. H. Dickson, George Williams, and Frederick Trcweek gave evidence as to the appearance of the horse and blood spots. Sergeant Donovan said he arrested the prisoner because his demeanour was suspicious. The Sergeant produced two hairs which he took off the spade, and said they were similar to hairs he took off the filly. The prisoner was humming a song, not a very sanctimonious one for Sunday. This concluded tho case for the prosecution, and the Bench informed Mr Hamerton that as they had come to the conclusion (hat (hero was no evidence to support the charge, the prisoner would be discharged. Mr Hamcrton applied for costs, but the Bench did not decide the point. Tho prisoner left tho Court.

One bullock missing, 2 wellbred calves, 7 well-bred cows put into paddock with inferior bull, and 1 pure-bred calf killed 40 0 0 And for cash paid and expenses incurred by plain tilt" in consequence of the wrongful siezure of the said cattle by the defendant, namely :— Expenses of plaintilf from farm at Waitotara] to and from Wavcrley three journeys on different days 1 10 0 Expenses of plaintiff from Wanganui, two days and buggy hire 3 18 6 Expenses of plaintiff with horse to and from Waitotara to Patea with notice to defendant i 0 0 Plaintiff and workman with horses, one day, collecting and driving cattle from paddock where found after released to proper paddock i 10 0 Cash paid by plaintiff for legal assistance in the matter of the siezuro o 1 6 Total £50 0 0