RESIDENT MAGISTRATE'S COURT.

Temuka Leader, Issue 1045, 19 December 1882, Page 3

RESIDENT MAGISTRATE'S COURT.

Temuka — Monday, Dec. 18, 1882

(Before I. N. Watt, Esq. R.M, and E. Acton, Esq., J.P.) FORCIBLE ENTRY'.

James Blyth, George Bolton, W. Cameron, and J. Popplewell wore charged with having, on the -Ith day of December, forcibly entered land in the possession of William McCann.

Messrs Hamersley and Austin prosecuted and Mr White appeared for the defence.

Mr Hamersley opened the case, stating that the defendants forcibly entered the land in possession of the prosecutor, and called the following evidence :

William McCann ; I am a cattle dealer. lam in possession of a part of the Maori reserves, and have been for six weeks. On the 14th of December I had cattle and horses there. The paddocks are all fenced with gorse fences, and gates in them. I live on the Dud. I saw the accused on the 4th Dee-;.iber last. About 7 o’clock in the I-celling the four of them came to where 1 live. There were three other men with them—two on horse back and one on a spring cart. They came into the stockyard, and I asked them what they wanted. One of them said they were going to drive away the cattle. I told

them the cattle were mine, and that unless they took them by force I would not allow them to go. They opened the gate of the stockyard and passed through. The cattle were in a paddock. Blyth and Bolton came, and one of them tried to push me away from the gate while I was closing it, but did not succeed in doing so. They then rounded up the cattle to take them towards the Epworth road, but a young man named W. McCallum prevented them. After some time they -went away. They appeared determined to take everything by force. They started to go home; there were some young cattle in the front. About two hours after I saw them and a great many Macris, about 9 or 10, coming into the paddock. There were several of them on horseback, and they carried sticks and stockwhips. The gate on the Epworth road was locked, but it was broken down. Someone said, ‘ Let us rush them now.’ The men on horseback rounded the cattle up while the others went down to open the gate on the south road. I went down to that gate, and they tried to pull me away from it. Blyth and Bolton tried to pull me away from it. Blyth said ‘Let us take them through the stockyard.’ They smashed the stockyard gate, and took the cattle away by the Epworth road. While they were in the act of smashing the stockyard gate Blyth pinioned my arms, and called out for someone to help him. One of the Maoris struck me with a stick. To Mr J. W. White : I was in possession of the the hind. I could not say how long 1 had been in possession of it.

Mr White : Will you produce your title ?

Mr Austin : We only got notice to produce it this morning. His Worship : I know of my own knowledge that there is no title, as this is native laud ; but this is not evidence. Mr Hamersley pointed out that they did not rely on their title. A person could not forcibly enter a place to which he had no legal title. His Worship said that the prosecutor could not prosecute if he had no legal title.

Examination continued ; I am a bachelor, and lived with Mr Leach. J kept his books, and got the run of my horses and my board for so doing. I did not tell Blyth I Went to live with

him > ecause 1 had not sufficient means, [f 1 .ji.l so 1 would tell a lie. [ had five or six horses there. J bonghl six bead of cattle tioiu Lecah before his bankruptcy. I was not doing much business, but f always paid 20s in the £. 1 owed Mr Gray some money, and he declined to take my bill for it. That might be three months ago. The witness in the course, of a severe cToss-examination said that when he went to close the gate Blyth and Bolton tried to push him away, but did not succeed. His Worship said the evidence of the witness was a tissue of contradictions. In reply to Mr White, witness said he could not explain the points in the nice \vay he required.

His Worship said to witness : You stated first they smashed the gate, next that they forced it open in a forcible manner, and now you say you were not present! What conclusion is the Bench to come to ?

Witness ; I stated in my evidence what had happened. Leach and myself retook possession of the cattle after they were driven away. It was after the retaking of the cattle that the gates were broken. Blyth held me while a Maori struck me. I was not pounding Bolton when Blyth held me. I struck Bolton once, but Blyth did not hold me until I promised not to strike Bolton again. I made no such promise. 1 do not know how many acres there are in the reserve. I reckoned on about 200. I gave £SO for the lease in two bills, of three months and six months. Nothing was said about the bills being returned to mo if I did not get a title to the land. The rent is £SO a year. Twenty-one acres of it is sub-let for £2l a year, but I did not know that three acres were let for £3 year. There are 30 acres of linseed, and 26 acres of oats on the land. I have not arranged to sell the crops. I did not know that Mr Quinn had given £1 per acre per annum for 50 acres of it. I have no recollection of telling Mr Blyth that I expected to get the lease from the Maoris. Messrs Blyth and Bolton told me they were trustees. Bolton told me that if 1 gave my word of honor that I would not remove any cattle he would not disturb anything, but I told him the cattle were mine, and that 1 would do nothing of the kind. To Mr Hamersley ; The cattle were mine. I have given notice of an action for the cattle.

Davdd Leach ; I was a dealer, and had a farm at Arowhenua. I gave the lease to Mr Brown as security for money I owed him. He sold it to McCann about six weeks ago. I had been a good many years in possession of it, McCann had some stock. All my stock had been taken away. Remember on the 4th of December seeing the four accused there. I had’ nothing to do there. McCann and others had cattle there.

Witness then described the entry of the accused on the land, which was much the same as the description given by the witness McCann.

To Mr White : I saw the cattle driven out. I saw McCann afterwards. I came over to Temuka that night. I did not offer the Maoris £lO if they would come and help me. I live there on the place yet. I find the food and Mr McCann pays me 10s a week. He is my employer now, and he owns the land ; I also help him. I have nothing there. To the Court : There were about 30 head of cattle on the place at the time of the entry. I had nothing to do with them. There were two head of cattle there but I told the owners, Essery and Ackroyd, that they would have to look to McCann about it. There were cattle belonging to other people on the land, but none of mine. To the Court : The cattle which had been there previous to my bank - ruptcy were taken away, but not brought back again. Mr Acton : How many of the cattle that were taken away by the trustees had been on the hind before the bankruptcy ? Witness ; Only a few. I helped McCann to bring about 1(3 head from the Waitohi.

Job Brown : iam a storekeeper ; 1 know Leach. He owed me some money. I had the lease of the Maori reserve as security. It was deposited with me. I sold my interest in the lease to McCann, and Leach signed and consented to it about four or five weeks ago. I believe McCann had possession. McCann gave me £SO for it. The lease was assigned to him. Mr White asked for the lease.

Mr Aus - . m said it was in Timaru. Mr White' he asked for it in Timaru and was ndd it was in Temuka He was also told McCann declined to produce it. Witness : The money was given to me by McCann in promissory notes dated 8 and (5 months. It was about a week before Leach filed this transaction took place. T held a promissory note of Leach’s which was dishonored m July last. I wanted the money, and took the bills from McCann. I believe one of them has been discounted, I gave credit to Leach tor .£SO ; my books will show it. Mr White : Did you give credit to Leach for this £SO in your proof of debt ? Witness : 1 believe so. Mr White : There is the proof of debt. Will you show me where you have given credit for it ? Witness (after examining proof of debt) : 1 did not ; but 1 did not charge the £SO. Mr White : Did you ever receive any money in payment of this promissory note that was dishonored in July last ? Witness : I did not ; not a penny. Mr White : Look at that receipt. Is not that a receipt for £l7 15s ? Witness : Yes. Mr White : Have you given credit to Leach on your proof of debt lor that £l7 15s? Witness . Yes, here it is. £17 — (pointing it out.) Mr White : Oh, that is dated October, That is not £l7 15s paid on July 20th last. Witness ; I believe that is it, all the same. I have only made a mistake tlie same as yon, Mr White. Mr White; V es, but Ido not swear to my mistakes, Mr Brown. You swore to that proof of debt. There is four months intervening between the two payments, and the amounts are not the same. Witness : Just so, but it is a mistake all the same. His Worship ; Then you proved for more than you were entitled to ? Witness : Yes, Your Worship. I had the lease in my possession. I got the lease when 1 heard Leach was going wrong. W. McOallmu, James Fergusson, and Daniel McCallum were also examined. Their evidence described the entry, and was to the same cflect as that given in the beginning. Fergusson stated that there were stones flying about, and that one of them struck himself on the head. His Worship said that the information stated that the offence was “against, such statute made and provided . ” He would like to know what statute the information was laid under. Mr Hainersley proceeded to read from Eoscoe and Johnstone.

His Worship said it was an offence at common law, and should be worded so as to read “ against the peace of our Lady the Queen, her crown and dignity.’’ Mr Hamersley agreed that it was an offence at common law. It was understood lhat the information was accordingly amended. Messrs White and Hamersley haring addressed the Court at considerable length, the R;M. said he thought it was a question of trespass. The trustees went peacably on the land and took peacable possession of the cattle but they were rescued from them, and then commenced all the trouble, It was very doubtful whetner the question of forcible entry could be sustained, although probably the proper way would have been to apply to the Court for a warrant.

Their Worships thou retired, and after an absence of about a quarter of an hour returned into Court and gave the following judgment : —The Bench being not satisfied that McCann is really and bona fide in possession of the land in question, and being doubtful whether the case amounts to forcible entry in law or nut, and feeling that whether the prosecution is entitled to proceed lor forcible entry or not the present action is not the most proper method of seeking redress, as there are other measures more appropriate, under the circumstances they have decided to discharge the accused rather than scud the case for trial at considerable expense to the country, without, as they think, any prospect of obtaining a verdict, civm cask, Julius Mendelson v. 1). Hcffeman— Claim Is (id. Mr Aspinall appeared for the plaintiff, and Mr Tosswill for defendant. After a great deal of discussion as to whether the executors’ names could be inserted in the plaint instead of the name appearing in it, the case was with- , drawn.

LAKCIiXY. Charles Hawkins was charged on the information of Thomas Swinton, of the Winchester Hotel, with that he did on the 7th instant steal two bottles oj beer. George Eamsay, who appeared in the witness box smiling all over his face, said in reply to a question, that lie believed his name was George Eamsay because that was the name he was called, but he could not swear to it, Constable : You live at Winchester ? Witness : Well, I. do not, I Live at Waihi Crossing. Constable: How far is that from Winchester ? Witness : It is four miles and a quarter and some few yards ; 1 am not sure to a yard or two. Constable : You remember the last fair day[at Winchester ? Witness : I do not. Constable : Were you at Winchester on the 7th ? Witness : 1 do not know. His Worship : If you do nut answer the questions properly I shall order you into custody ami keep you, there until you answer them. Witness (still smiling knowingly) : 1 am willing to answer any question, sir, if they are put to me in a straightforward manner. His Worship ; 1 will put them to you. Were you at Winchester or not ? Witness : L was often at Winchestre your Worship. Constable • Tell us what you know of this case. Witness : How I can understand yon. I had the pleasure of knowing this gentleman —(pointing to accused.) His Worship : Never mind about your pleasure. Did you see the accused at Winchester ? Witness ; I saw him frequently there. Constable : Did you see him there on the 7th ? Witness : 1 don’t remember the day of the month. Constable . Was it on the last fair day ? Witness : I was at work on that day. His Worship : I shall have to commit you. Are you sober 1 Witness : Well, 1 think so. His Worship : 1 cannot go on with this case, I shall remand it until tomorrow, when the Justices can deal with it. The constable said there wa« only one Justice within any reasonable distance. His Worship: Then in that case I shall have to remand the case for a week. (To Eamsay)—You willbe detained in custody. Witness : Thank you, sir. Constable ; Perhaps he would think better of it and give his evidence now, if you. would go on with the case, your Worship. ■> Witness : 1 am ready to give ray evidence. His Worship : Very well ; give it, then. Witness ; Between 6 and 7 o’clock in the morning I saw accused go into the cellar and take two bottles of beer in his two hands. I said ‘ All right, I have caught you,’ and hit him a slap on the rump, I never spoke afterwards to him about it.

Constable: Was this on the 7th December last ?

Witness ; Ah, there you go again. That’s where we went astray before. Thomas Swinton : I am an hotelkeeper, I have missed II bottles of beer, II bottles of stout, 2 bottles of old tom, and 1 bottle of brandy from my storeroom, I missed 2 bottles on the 7th. I got'lo bottles under boxes in the back yard. Accused has been employed as cook by me.

The constable said the accused had been arrested only at 4 o’clock that afternoon. There was another witness but he had not had time to sum .-non him. The case was remanded till next Thursday. lamious kidino. William Walker ami Eli Mitchell were charge! with furious riding. The defendants admitted the charge, but were dismissed, as the police failed to put in evidence the Ordinance under which the charge was brought. The Court then adjourned.