MAGISTRATE'S COURT.

Taranaki Daily News, 27 March 1918, Page 2

MAGISTRATE'S COURT.

YESTERDAY'S ['UOCEK 1)1 XUS. (Before Alv. A. Crnnki\ S.M.). A sitting of the New I'l.vmoulh ilayiatrate's Court was held vualerdav, before Mr. A. C'rooke, S.M. CIVIL CASES. Judgment was given for plaintiff by default in the following undefended cases: Petty Bros. (Mr. T. P. Anderson) v. S. E. Adiims, £22 4s (costs £■> 15s); Halleustein Bros, (Mr, IJ. Ilutclic-n) v. A. Tulloch, .-Co lis ;jd (costs £1 .'is Oil); Newton King (Mr. J). Hutchen) v. U. Manaia, £l3 Os 10il (costs £1 19s Oil); W. J. Honcyfield (Mr. A. 11. Johnstone) v. C. CJ. Clarke for possession of dwelling as from April 16, and £0 5s arrears of rent (costs fl 15s). JUDGMENT SUMMONS. George Taylor, newsagent, New Plymouth, was ordered to pay the sum of £4 Is, forthwith to the trustees of theestate of the late John Norton, in default five days' imprisonment, the warrant to be suspended as long as the debtor paid 10s per month, the first payment to be made in one month from date of the order.

CLAIM FOR TRESPASS. T. W, Welsh (Mr. P. B. Fitzherbert) claimed £l3O from Percy Wood (Mr. A. H. Johnstone, with him Mr, H. R. Billing) for loss of grass caused by trespass of stock. Mr. Fitzherbert, in outlining the case, said two facts were admitted by the defendant: First, that the plaintiff was the owner of the leasehold of 324 acres mentioned in the claim, and which he occupied to the January 31, 1918; also that the adjoining section of 208 acres, of which Mr. Sargison was the registered leaseholder, was under, occupation by the defendant. The plaintiff was a land agent, and carried on business in New Plymouth. He purchased the leasehold named in the claim in September of last year, and in consequence of its condition he decided, in order to effect it favorable sale, that lie would allow the grazing to aceumulate, which he did, up January 31, 1918. They were the most favorable months for grass growing. At the beginning of December the fences had been repaired and put in "perfect order. There was no stock on the place during the term he had been conserving the grass, excepting a horau and two dairy cows, permission to graze which had been given by plainiff. Defendant came into the district in September 1917. He cnlled to see Welsh two or throe ti'nes shout some land for grazing, and subsequently put some cattle on his proper' J. •;'• ii>2h Welsh had given no aiithorrt>r '." t'ht> cattle were there a month. T» : "> t- later found that some wires had bttr pulled down from the fences between his place and that occupied by Wood, anil it appeared that stock had come into his place. The staples had been drawn out of the posts, and the top wires pulled down and twisted round the lower wires. The grass, of which there was abundance, and of heavy quality, had been practically all eaten or trampled down. Stock had been found on the farm, and these when startled had immediately fled in the direction of Mr. Wood's, holding, go in a over the fence at the place where the wires were down. When the new purchaser went into occupation of *thc farm on February 1, 191S, all the grazing was gone. The minimum value of the grazing lost was estimated at from £.IOO to £IOO.

Thomas W. Welsh, land agent, New Plymouth, plaintiff, gave evidence on the lines of counsel's opening address. Cross-examined by Mr. Johnstone witness said lie could not swear there were 300 acres of grass eaten down, but he would say there were 200 acres eaten down. He entered into an agreement to sell on December 12. When he took the place over ho did v.ot pay anything above the mortgages. When he sold the place he* was to get a Willys-Knight motor car, £l5O in cash by March 31, and the equity in some leasehold stables in Marton, unlet, at a rental of £2 ss, with a purchasing clause. The original agreement to sell was not completed, and a new agreement was drawn up in Mr. Billing's office, and instead of receiving £l5O in cash he was to take a third mortgage on the 324 acres for a period of two years. The loss of the grass was mentioned to Mr. Archibald at the time of the sale. The loss of the grass (valued at £130) was not mentioned in correspondence with Wood. He did not think it necessary to mention it, as Mr. Wood knew as much about grass as anyone in the district, and he quite expected him to come in and settle the matter satisfactorily. He could not say what the price of grazing was for cattle at per head per week. He did not see any open space in the fence between his and Sargison's property. He did not examine the fences where the land went down, somewhat steeply, to the Oakura River. Ho went over the farm with Mr. Archibald and Mr Wheeler. There were some goats and a turbine on the farm. These were to be given in at the sale, on account of the loss of the grass. The turbine had been used for driving a milking plant. The goats fed mostly on blackberry, on sections near the bush. He did not think the goats ate any of the grass worth speaking of. He did not know how many goats there were. Evidence was also given in support by Gladys Gilbert, managing clerk for plaintiff; John Robertson Archibald, farmer, Koru, purchaser of plaintiff's leasehold; Henry Lett, farmer, Oakura; Percy Tichbon, who formerly farmed the property leased by plaintiff; and Frederick W. McGregor, who previously owned the adjoining farm. Mr Johnstone held that judgment must he given for det'endair.. or that plaintiff must be non-suited, firstly because there was no proof that more than two cattle belonging to defendant were ever on plaintiff's property. No one had been able to identify more than two bullocks. Secondly, if there had been proof of the cattle belonging to defendant, there was no proof that the damage was all done by his cattle, and there was no differentiation between his cattle and any other cattle that might have stray?..', on to the property. Thirdly, that, according to the evidence before the court, the. property was not fenced securely according to the Fencing Act, and he submitted that no damage for trespass could be recovered when fences were insecure. As regards damage to Welsh, he said there had been, in fact, none. 'He apparently bought a farm with nothing, shut it up for 3 months, and sold it for a motor ear and £l5O in cash, which was subsequently amended to a mortgage for £l5O for a period of two years. Apparently the farm had been shut up in order that the growth of feed might give it a fresh appearance to a prospective purchaser. Cases were cited by counsel in support of his view of the charge of trespass, and the matter of fencing required under the Fencing Act. After legal argument the magistrate decided that the evidence showed that

the fencing was not according to the requirements of the Fencing Act, and on that ground -plaintiff was non-suited.