DISTRICT COURT.

Temuka Leader, Issue 2270, 22 October 1891, Page 2

DISTRICT COURT.

Timaru—Tuesday, Oct. 20th. (Before His Honor Judge Ward.) CASE POSTPONED. 0. Bishop v. Job Brown and others; argument for nonsuit on finding of a jury. On the application of counsel this case was adjourned to the next ordinary sitting. RE BRUCE's MILLING COMPANY. On the application of Mr Knubley His Honor signed the cases for appeal in re Reid and Gray and Jas. Guild, and ordered thejjapers to be sent to Dnnedin. '.''..~~... VjKEOBAIE. On the application of Mr Baymond probate was granted of the Avill of the late Thomas O'Driscoll. CIVIL CASE. W. C. Smith and G. J. Dennistouii, aa executors of the late Angus Macdonald, v. Patrick McCarthy, claim £26 19s. Mr Mr Perry with him Mr Kimierney for plaintiffs, Mr Baymond for defendants. This case was heard before the following jury:—W. R. Border, G. H. 0. Clark, S. H. Daviea, and T. Foden. The short facts of the plaintiff's case as stated by Mr Perry to the jury were as follows : Plaintiffs, as executors of the late Angus Macdonald, with JNlr Henry Ford as their manager, hold an estate on the Orari of about 5500,. acres freehold and 3445 acres leasehold (the remnant of the old run), this portion being in tussock. The defendant owns 100 acres adjoining the leasehold, and adjoining his land is a 50 acre section, R.S. 32331, belonging to aMr Furby. This section is in tussock, unfenced, and the plaintiffs' sheep had been all along accustomed to feed on it, and neither the plaintiffs nor their manager had ever receiyed notice from anyone that then- sheep were no longer at liberty to run there. On the 21st September Mr Ford was at Temuka and was there informed by telegram that 370 were in the pound at Geraldine.. He went up to Geraldine late the same night, and paid the fees demanded under protest, and arranged to get the sheep out early next day. When Mr Ford saw the sheep in' the pound next morning, he saw at once they had been very much overdriven. He was told they had been impounded by McCarthy, and later on he ascertained they were impounded from Furby's unfenced section. The defendant had driven these sheep, heavy in lamb, so badly and so carelessly that 18 of them died and the rest of them were deteriorated in value ; 16 of them dropped before they had gone three-quarters of a . mile from the pound, and soon afterwards M several others dropped, two of which died. , The plaintiffs therefore claimed from de- ' fendant, the value of 17 sheep at 8s £7 4s; injury to 352 others at Is, £l7 12s ; paid for feed in pound, £4 3s: and driving fees, £1; total, £29 19s. Defendant undertook to justify his position, to.show that he had some right over Mr Furby's 50-acre-section. If he had no right over that section he had no right to impound sheep from it. __Henry,Ford, manager, gave evidence in corroboration of the above statement au4

John Murray, W. McCully, J. Airay, J. Robertson, T. Herlihy, A. E. Cox, and W. E. Furby were also examined. This closed the case for plaintiffs, and Mr Raymond opened the case for defendant. There were two questions involved; whether the defendant had any right to impound the sheep at all, and whether he had injured the sheep by negligent driving. He would contend that the defendant had obtained a sufficient authority for occupation from Mr Furby to enable him to impound. The main question was that of negligence, and the onus of proving that defendant drove the sheep improperly lay on the plaintiffs. He would prove that he drove them openly, by the shortest accessible road, and two witnesses would be called who saw him on the road, and would state that he was taking them very quietly and carefully. This evidence, coupled with that of Herlihy, who was called by the plaintiffs, would clearly establish not 6nly that the sheep were not damaged by defendant, but by Mr Ford himself, he being improperly equipped with dogs to keep the sheep from bolting about, and from the manner in which he treated the sheep. Patrick McCarthy, defendant, produced his title to his land. Had constant trouble with plaintiffs’ sheep breaking the fence and getting into his turnips. When asked to help to repair the fence Mr Ford refused, saying if witness wanted to keep out the sheep he must make up the fence himself. He had Mr Furby’s reply before the 21st. On the 21st he saw sheep on Furby’s land, some of them feeding on the gorse. He took charge of a lot nearest the fence,and took them by the shortest road to the pound. Had no trouble with Mr Murray. Mr Murray was always ready to help keep up the fences. He was cross-examined at great length, and the case was adjourned to Wednesday. Wednesday, October 21. On the Court resuming James Aitken, Peter Cooper, W. Helera, and W. Fitzpatrick were all examined for the defence. They stated the sheep might safely have been driven eight or nine miles, and some stated that McCarthy drove them very carefully. Counsel on both sides addressed the jury, and the case lasted till 4 p.m., When a verdict for the plaintiff for £24 16s anrl /xtcrfu vtraa ro+.nmpr) I