RESIDENT MAGISTRATE’S COURT, TEMUKA.

Temuka Leader, Volume I, Issue 100, 30 November 1878, Page 2

RESIDENT MAGISTRATE’S COURT, TEMUKA.

Wednesday, Nov. 27

[Before A. LeG. Campbell, Esq., R.M.]

POLICE CASES. James Robinson, charged with drunkenness and violent behaviour, was dismissed with a severe caution. CIVIL CASES. Hooper v. Bryant—Claim L 39 8s for wages. Defendant applied for an adjournment till next Court-day. Application granted. Leach v. Norton.— Claim-;L4 12's, for work done and trespass of pigs. A setoff 'of 15s, value of a calf, was put in. Mr Johnston appeared for plaintiff. A note was handed in "from Mr Hamersley, who was retained for defendant, asking for an adjournment,, as he was engaged at the-inquest on the fire at Waimate. Mr Johnston objected to an adjournment being granted on such ground, and animadverted strongly upon the practice of solicitors taking returners for cases to be heal’d on the same day at different places. Mr Jameson spoke in the same strain. If a solicitor undertook cases that he could not attend to himself lie should send some one to represent him. Later in the day another person asked or an adjournment of his case for exactly the same reason. Mr Campbell then took occasion to remark that it was very hard for clients to he put to expense and trouble in this way. If solicitors could not keep tl.eir engagements themselves they should give up the case to some one else. The practice was too common, and he would be acting wrongly to encourage it.

The adjournment applied for in the above case was refused. Mr Jameson then took up the defendant’s case. Leach deposed ; In October last Norton asked me to help him to get some sheep off an island in the Opilii, the river being high. I went myself, and look two men and a dray and two horses. The dray was firsr sent to Temukn for some hurdles to catch the sheep in. Three or four loads of sheep were carried over the stream —the rest were made to swim over. All the afternoon was spent over the work. The dray and horses, and the man witii them, from dinner time to half-past eight ; the third man only about two hours and a half. There was no agreement about charges. I charged 255. taking a calf (which I v deed at 10s) in part payment. Tne first item, 15s, is the balance due for the work. 25s was a fair charge for what wis done. The rest of the claim was for trespass of pigs in an English grass paddock. On the first occasion nine pigs, on another occasion fifteen, and on a third nineteen pigs belong'ng to defendant were trespassing. Is a head was charged for the first trespass and 2s a head for the second and third, according to th 3 impounding ordnance.

Thomas Hobbs was called, and gave evidence for tiie plaintiff re the work done at the river, and also concerning the trespass of the pigs. Tie defendants pigs were nearly always in plaintiff’s paddocks till lately S. Norton stated that he had heard nothing about the trespass of the pigs until he received the summons to the Court. Plaintiff had often growled about them. As to the claim for work done, he understood that the calf taken by plaintiff, and which vas worth 15-q was a sufficient payment. Very little work was really done by plaintiff, and the time spent upon it was not more than two hours and a half.

In defence, Mr Jameson urged that sufficient notice of the trespass had not been given, and that the damage, if done by defendant’s pigs at all, was done on the occasion of their first trespass.

Judgment was given for 9s, the amount claimed for the first trespass, the other items being struck out. S. Carrie v. Fuller.—Claim L2 Bd. Judgment by default. Hampson v. K. F. Gray.—Claim LlO, on dishonored diet pie. Mr Jameson appeared for plaintiff, and Mr Hamersley was to have appeared for the defendant, but was engaged elsewhere. Mr Gray applied for an adjournment. He was not prepared to defend his case himself, having trusted to his solicitor. He would therefore he placed at a disadvantage, as the plaintiff had counsel to assist him. Mr Jameson objected to an adjournment being granted. The case had been adjourned twice already for the same reason, and it was quite likely that further adjournments would be asked for if this one were granted. The course of justice was being impeded, as far as his client was concerned, by these adjournments.

His Worship concurred, and refused the adjournment. Mr Jameson stated the plaintiff’s case as follows :—Mr Hampson was using a roller for laying down asphalt. Mr Gray coming up. a question arose respecting the weight of the roller, Gray saying that he thought it was so much, Hampson that lie thought it was more, and they backed i pinions to the extent of LlO. For this purpose they went to Mr Smith, the postmaster, and each deposited a cheque for LlO with him. The roller was weighed, and it was found that Hampson’s guess was the nearer of the two to the truth. The stakeholder therefore handed both cheques over to the plaintiff as the winner of the bet. On the cheque being presented at the hank it was returned marked “ payment stopped.” Hampson deposed : I am a contractor living in Timaru. On the 3rd of August last I was laying down asphalts in front of the Post-office, Temuka, and using in the work a heavy roller belonging to me. In the afternoon of that day I was in a hurry, trying to finish the job that night. Mr Gray came up and told me the roller was not half heavy enough. I asked him what weight he thought it was. He

said about sewt. He took out a rule and measured it, saying that he had made four j or live of the same kind. I said it was 6cwt or over. I was anxious to finish the work, and to stop his. talking I asked him to back his opinion. He then pulled out a pound note. I said that was not worth my while. I asked him to bet L2O. He agreed to make it LlO. I should not have asked him at all hut that he bothered me. When we had agreed to make the het we went into, the Post-office, and laid the stakes with Mr Smith, the postmaster. We each put down a cheque for LlO. Mr Smith was to hold the stakes until the weight of the rol er was ascertained. (Cheque, given by Gray shown to, and recognized l>y witness.) Mr Gray,: I would ask your Worship totake notice that the cheque is drawn in favour of K. F. Gray. His Worship : Or bearer. Plaintiff resumed : We took the roller to Brown’s timber yard, and put it on the weigli-bridge, Mr Gray, and twenty or thirty others being present. The man who weighed it said it was Bcwt, ; but he would not give a certificate. I asked, Mr Brown, afterwards to give a weight-bill, but he refused. I took the roller to Timaru, and got it weighed at Jackson’s yard, and produce the weigh-bill. (WcighI .ill put in, showing weight of roll* r Bcwt.) I showed the ticket to Mr Smith, and asked him to hand over the stakes. I believe that he was satisfied that I had won, ■but he did not hand me the cheques for some time —perhaps two or three weeks. I'presented the cheque at the. hank myself,and it was returned to me marked payment stopped.” I have-since given notice to Mr Gr.iy that the cheque has not been paid, and I now sue for the amount. Cross-examined bv Defendant ; I may have said that the roller weighed lOcvvt, but I did not bet.that it did. On my applying to Smith for the cheques he refused°to give them up, saying there was some dispute. I don’t remember exactly what Mr Smith said on those occasions. He showed me a written protest, but I took no notice of it. When he did hand me the cheque lie told me that it was valueless, but I took no notice of that either. Ido not remember the words of the written protest. I threw it away as worthless. I remember yon offering rue a pound to settle the matter. That was after the first -weighing of the roller. That was within a few days after the bet was made. I bought the roller in Dunedin from Kincaid and M‘Queen two or three years ago. I cannot say exactly when. I ordered it of a certain size, not of a certain weight. It was sent up to me. I think I have the way-bill amongst my papers. Mr Gray : Then you knew the weight of the ro'ler !

Plaintiff. No, no. The way-bill «ays one roller. The weight is not stated in way-bill as far as I know. Mr Jameson objected to evidence concerning documents rmt produced Mr Gray ; Tne case hinges upon this point, that he knew the weight of the roller, and was bet’r-g upnn u certainity, while I was not. This is the reason of ray refusal to pay, and why I plead not indebted.

Cross-examination of plaintiff continued ; You told me that Mr Macplierson had said that ihe ruder was tool'g’it, but lie denied having said so when 1 asked him. Winn I took the roller to be weighed in Timaru I gave no instructions and said nothing about it until I got t .e bill, but before I look it off trie weighbridge I told them al about it. I did not tell them sooner for fear that, like Mr Brown they would refuse to give rue a bill. I did not consider that I ought to have given you noti e that 1 was taking the roller to Timaru. I consider I ought to have had it weighed in Temuka, but it was refused me. I did not serve you with a notice regarding the Timaru weight because I did not think I had anytning to do with you, but I did to the stake holder, and to Mr Franks, the witness to the bet.

Mr Smith, Postmaster, examined by Mr Jameson, gave evidence respecting the origination of the bet, and the weighing in Temuka similar to that given by plaintiff. Further evidence was the following : Mr Gray bet that the m ler did not weign so much as Gcvvt. Mr Hampson bet that it weighed more. Immediately after the weighing at Brown’s, before we lell yard, Mr Gray told me not to hand over the cheques, as he was not satisfie.d with the weighing of the roller. During the next week Mr Hampson applied to me for the stakes. I told him I could not give them up because Gray had protested. He afterwards brought ,a weigh-bill to me. I advised him to take it to Gray, and if he was satisfied I would hand over trie stakes. Ultimately I handed Gray’s _ cheque to Hampson. I believe I told him at the time tliat I heard that the payment of it was stopped. I was sitisfied that the we’gh-blll wis correct, and therefore I handed the two cheques two plaint ff. To Mr Gray : Mr Hampson knew of your protest before I gave him the cheques. He asked for the stakes before he took the ro'ler to Timaru. I said I would not hand them over until you withdrew your protest. Hump-on told me he was going to take trie roller into Timaru. I do not know Jackson and Gibson’s signatures. For might I know it may have been another roller that was weighed in Timaru. IF. Franks was also examined, hisevidmee corroborating the previous statements as to tbe making cf the bet, He had been asked to hold the stakes, but de l lined.

K. F. Gray, the defendant, sworn, admitted making the bet, writing the cheque, anil placing it as a stake in Mr Smith’s hands. In consequence of a conversation, lie lodged a protest with the stakeholder, to the effect that the money should not he paid over until a certain point had been referred to competent betting men. He must ag in press for an adjournment, as he had not prepared a defence for himself, and did not know what defence Mr Hainersely intended to offer. Mr Jameson stated that Mr Hamersley intended to rely on the illegality of making bets, but this was not a case against which such a defence would serve. It was not a question of the legality of a bet at all; it was a case simply of a cheque given, which on the face of it ought to have been paid, but which the drawer had dishonoured.

His Worship, expressing regret that Mr Gray’s ease had been so neglected, said lie could do nothing but give judgment. The case had proceeded too far to allow of fresh witnesses being called, as suggested by Mr Gray, Judgment must Vie given for amount claimed and costs.

Thursday, Nov. 28. v |y : MALICIOUS INJURY TO A HORSE. M James Goates was charged with having H wilfully and maliciously injured a certain J pony by cutting out its tongue. Jjlt Hamersley conducted the prosecution, \ and Mr Toswill defended the prisoner. Mr'Hamersley having .stated the case simplv, evidence was taken as.fo’lows^^^^« R. Orton, sworn ; I am a farm@r>|fljh| at Pleasant Point On the .22ud vember tbe accused was employed me as a groom. He travelled my horse Major, and rode an entire pony called the General. I saw the pony in the dusk of the evening of the 22nd, but did not examine him, not suspecting that anything was wrong with him. The next morning my son Reginald took the pony to Timaru. On his return, between one and two o’clock, I examined the pony, and found that bis tongue was gone. Since then I have done my best to cure him. I saw the accused on the night of the 22nd inst, after his return with the pony from his round. He appeared to be under the influence of'liquor, .He said nothing to me about the injury, and in fact has never mentioned it to me at all. Cross-examined : Accused had been in - my emploj about a month. I was disappointed in him ; he did not prove so good a man with horses as I expected, but he always treated them well in my presence. He never complained about having to take the two entires together. Rees Thomas, a farmer residing on the Main South Road, between Temuka and Winchester, sworn, said ; I was trimming a fence on the side of that road aboutfive o’clock on the afternoon of the 22nd, Ai cusi-d passed,- riding the pony now outside the Court, and leading a black entire horse. He was jerking the pony’s bit as he passed, keeping him almost rearing, ,' lthough he passed on the other side of the road, I noticed that the pony’s mouth was bleeding. ' Accused was evidently under the influence of liquor. I watched him going along for about twenty or thirty chains. He continued to abuse the animals by jerking the reins during the time I wat-hed him. I‘ was then ailed away to my tea. As I reached the house, a person, a stranger to me, whom I had seen on the road, came up and gave me a horse’s tongue. I believe the tongue produced is the same. It was afterwards given to Mr Orton. Cross-examined : The accused was jerking the pony’s mouth very severely, and the other horse’s also. The horse appeared to have become savage from the treatment, and I thought the man was in danger of his life. Mr Broad more, sworn : I am a shearer at present working at Mount Peel. On the 22nd of this month I was sitting down on the side of the South Road with two mates. I saw the pony now outside the Court. Someone was riding him and leading another horse. I cannot swear that accused is the same person. When I first noticed the man he was standing on the ground, and mounting the pony. He had the oth t horse also, and was mounting quietly. This was about 100 yards from where we werej My sight is not goou, so I did noiFsee v very clear v at that distance. After mounting, the man pass d us. going at a quick walk, and jerking the pony’s bit as he went. We then went up the road, and a! • the place where we had seen the man on the ground, one of my mat -s picked up a tougU". I believe the one produce lis the same. There were marks on ilm dust as if i horse had been thrown down. The longue was not bloody but dusty, and pretty dn when picked no. To the Bench: The man was going in the opposite dira tion to that in which we were going. The tongue was picked up where I saw him first. He was jerking ihe pony’s mouth as he passed us. I should have believer!, from the marks on the road, that a horse had been down, even if there had been no horses about. John Neill, detective, stationed at Timaru, proved the arrest of ‘he accused under warrant (produ ed). The warrant was read to the accuse'l. Accused stated that the pony was annoying the big horse, and that the horse got hold of the pony’s tongue and bit it off. The tongue (produced) I got from Mr Orton, and the bridle (produced, and which had a common smooth snaffle bit without cheek bars). I got at the police station, Timaru. Coming in the train prisoner said that the pony’s tongue was lacerated, hut did not say that the big horse had done it. W. Broadmoie, re-called : When the tongue was picked up the cut appeared jagged and rough. Could not say how it had been done. S. Durham, M.R CI S., practising in Timaru, sworn : I . exariiined the mouth of the pony now outside the Court on the % 23rd. The tongue had been severed just - at the freninn, the membrane that connects the tongue with the lower jaw. It had been severed by a cleanish cut. It may have been severed in one of three ways —by a person, dismounted, jerking tbe bit ; b ,T being bitten through by the animal itself in f filing after it had been lacerated by jerking the bit ; and by cutting with a blunt instrument, such as a common pocket-knife. Ido not think it could have been bitten off by another horse. That is an extremely improbable thing. To the Bench : I never heard of one horse biting another’s tongue. Cross-examined : Trie smaller marks (shown) net r the end of the tongue were made, I should think, by the pony’s own teeth. I do not think another horse would make such small marks if he bit at all. Ido not think the tongue could have een cut off by jerking the bit so long as the man was mounted. I think the tongue of a horse could be cut out by a blunt instrument without lacerating the jaws. I '•erlaiuly think it nnadvisable to take two entires about together, but it depends how they had een brought up together. Generally, it -would be dangerous to the hors s themselves, for entires will fight furiously when they get at each^^ other. T . , ~ ■'*9 To the Bench : I do not think the pony could have bitten it off at once with his own hind teeth, and have left no lacerations. My idea is that when the man was dismounted he cut the tongue partly through by jerkino- the bridle, and the pony in falling cut through the rest with his own hind teetli. The cut is made just where the " hit would go. I think the bit on the bridle produced would do it, but not at once ; repeated jarkings would be needed. Jas. Gilligan, sworn: I am in the employ of Mr Orton, and I know the pony General and the entire horse Major. The horse is a very quiet one. I led him Mid

rode the pony to day. They o -rae very quietly. Major is achesmil, .bm so (lark that he might he thought a Ida kata little distance. lam accustomed to Jeadieg entires. I may sometimes jerk their mouths, but jerking is never really necessary. A quiet pull will do as well. Mr Hammersley, addressing the t ourt : I think that a sufficient prima facie case has been made out. The two mates of Broadmore, who could sec better thau he could, might have been called, or I might ask for a remand to produce them, Ihe Supreme Court sits in a fortnight; and they can be called to that Court. Their evidence might be important, as they may have seen what was done when the man was dismounted. Mr Toswill submitted that there was not sufficient evidence to prove that the prisoner cut out the pony s tongue maliciously and wi’fullv, an .1 that had to be proved. Even if the two men referred to were called they could not prove that the injury was wilfully done. My defence is that it was an accident, and unless it be proved to have been otherwise than an accident, there is no prima facie case. Mr Durham stated in his evidence that it is dangerous to lead two entires together, and the man may have had great difficulty in keeping the two horses apart, and may have done the injury in trying to keep them from injuring each other. But there is nothing to show that it was done wilfully. , The Magistrate : I should like to have heard the evidence of the two men who were with Broadmore. Their evidence might have been very material. Tl.en there is the fact of prisoner’s concealing the injury, and his making a statement to the detective which the evidence of the veterinary surgeon proves untrue that the other horse bit out the tongue. Mr Toswill : I may explain that my client does not say that. He says the horse took hold of the point of the tongue and pulled it out. Mr Harnersley : That is more improbable still. The whole case shows the tern per of the man. Alter he must have known that the tongue was out he went on jerking the animal s mouth. If an action can be traced either to drunkenness or temper malice is inferred. The man severed the tongue, and a prima facie case arises from his 'concealing the fact. The accused was committed for trial at the next sitting of the Supreme Court at Timaru, bail being al owed himself and two sureties in fifty pounds each.