DISTRICT COURT-Yesterday.

Thames Star, Volume XIV, Issue 4398, 7 February 1883, Page 2

DISTRICT COURT-Yesterday.

(Before His Honor H. G. Seth Smith,

Esq., District Judge.) B. A. WIGHT V. P. AUSTIN

Further evidence in this case was taken after we went to Press yesterday. Nikorima Poutotara saw' some maize Bewn by Wight in November; be sowed some about a fortnight after. Wight's land was better than his, and should produce an equally Rood crop. #' Cross-examined by Mr Alexander—lf. the maize produced had been allowed to grow, in a fortnight it would have been as good as witness 1 maize.

Thos Logan deposed" that on January the 10th Wight called him to see Austin's cattle, which were on liis ground ; there were 28 head, and 27 were branded P.A. Saw the maize eaten down in the paddock. The remainder of this witneas's evidence was similar to that already given.

Hape Sewi had seen the cattle on Wight's land ; they had also broken into his.

This concluded the evidence for the plaintiff.

Mr Alexander briefly stated what evidence he intended to adduce, and called — Peter Austin, the defendant, who said that the arrangement made with the plaiutiff re grazing terminated in Sept.; the charge had been fixed at £10 per month by arrangement with Wight junr. He coimdered he was paying too much, but he could not-help it; he was fairly " cornered," as he could get no other grazing for his cattle till October. Iv the beginning of October he remored the cattle to the Xomata north. There were 4il ; 35 had been running at Wight's. £1 would fully pay for any damage done in grazing on Wight's land after October. The first he knew of anything concerning a trespass was by a letter he received from Mr Miller, solicitor, stating that if were not paid proceedings would be taken. He took Thorp and Macky with him to Kotnata to estimate the damage done. When he heard from plaintiff on the 10th January, he eeut Thorp and bit man. to

spe it. When he and Mncky went to th« place there were cattle rooming about the crops. £7 would be ample for any damage done to the maize. The cattle could easily get into the paddock. Had tried to get a dividing fence erected. Cross examined by Mr Miller—Had jiven Wight notice on December 18th that he would have the fence erected and ..'htrge him with half the cost. Had tried to keep his eaUle off Wight's iand. They were there frequently against his wish. Had never grown or sold maize, but, from the appearance of the crop, assessed the damage to the field at £7-

J. W. Thorp stated—He accompanied Maekey and Austin to Wight's paddocks early in- January last. .Examined t^e potatoes, but found no damage done to them. In one maize patch a few topsh-d been oaten near the road, but he could see no draught horse tracks. There were cattle tracks about the patch, but not such as would be caused by Austin's cattle. In ihe potato paddock a few plants had been raked up apparently by pheasants or native fowl. Another maize patch was eaten off and a third was hardly touched. On the 18th found a draught horse in the padtiock ; the large patch had then been destroyed- Its value was £4 an acre, and there was about an acre and a half. Wight would *«c paid for the damage to potatoes by os. £8' would cover the total damage.

Cross examined by VMr Miller —Had not much experience in maize growing. 8. C. Macky deposed that he had examined Wight's crops on the 9th and 18th of January. Only damage done to potatoes was a few heads eaten off. On the 16th saw Wight's mare amongst potatoes untethered. On the 18th saw same mare near maize patch untethered ; the mare could be tracked through it. The damage would not exceed £1. 'Alfred Thorpe gave similar evidence. This closed the case for the defendant, and the Court adjourned until this ingTHIS DAY.

Mr Alexauder addressed the Jury on the evidence which had been given, and endeavored to show that the damage done was very trifling in comparison with the claim made by the plaintiff. Two of the witnesses had seen horses grazing the maize. He characterised the claim an account of the mare, as a peculiar one. He was unable to produce witnesses, but he was instructed that Mr Austin's horse was incapable of injuring the mare about the date mentioned. The only evidence produced in favor of such an assumption was very weak. Wick, a friendly witness, was brought to strengthen this portion of the evidence, but he had not done so. Upon the evidence he was confident in leading the-result to the jury, that they would see his view of the case.

Mr Miller denied having taken any advantage of the law in the matter of the defence, and pointed out that the jury should give their verdict upon the evidence placed before them, they should not give it upon anything he or bis learned friend should say. He then referred to the disinterested evidence produce by the defence and the discrepancies in their evidence. It had been sworn by competent judges that the maize was worth £10 per acre. In the matter of the injury to the maize, the evidence of the plaintiff's witnesses was conclusive. The only evidence produced for the defence was Mr Wicks, and his dates were somewhat mixed. He was confident that the jury would give substantial damages.

His Honor, in addressing (he jury, pointed out that: first there was a trespass which had been admitted; they would have to satisfy themselves as to the amount they would allow. Before the plaintiff can recover the amount claimed they must be satisfied (hat the cattle were there as alleged, but as tie evidence tended to shew that a smaller camber had trespassed, they should consider how many were there, and the probable amount of damage done by them as to the maize. The evidence varies. It shows that some of the injury done was done by defendant's cattle, and you will have to say what the value of the damage done was. In the matter of the potatoes, defendant's witnesses say 5s would cover the injuries done, while the plaintiff's side puts the damage down at £20. This was a matter also for their discretion. In the matter of the injuries fo the mare, The defendant has brought no evidence on this point, but it foy with the plaintiff to show not only what damage the plaintiff had sustained, but also was it by the wrongful act of the defendant, There is no direct evidence that the act was done, but there is evidence that you will haveto consider as to the probability of it. They would have to be satisfied that the: plaintiff's mare was actually served by the defendant's horse. They must satisfy themselves whether the cause of the mare being in foal was the result of any contact with Riekett's horse or with that of the defendant. Upon the evidence alone they must consider their verdict.

The jury then retired. After an absence of 40 minutes they returned into Court with a verdict for the plaintiff for damage done to maize, £9 15; to the potatoes, £10; and in the matter of trespass, £13 lOs—£33 5s and costs. They were not satisfied as to any damage hay« ing been done to the mare. The costs amounted to £19 4s. The jury were then discharged. P. K. DONNELLY V. H. E CAMPBELL. This was an an action brought to recover the sum of £99 4s, alleged to be due for wages and labor done.

Mr Miller for the plaintiff. Mr Miller stated how the cause of action arose. The defendant had put in a set-off, thereby admitting the existence of a claim. The Court ruled against this view. P. K. Donnelly, sworn, said, —He was plaintiff in the case, and knew the defendant. Recollected in the year 1880 seeing Mr Campbell; it was in the month of May. He went to the house of witness, and asked him to go to his (Campbell's) house, as he wanted to see him. Went dowo, aud he said be had a case against ! Mcllhoue tor some Maoris, and wanted ; witness to protect him from being | assaulted. He said he would pay witness. No sum was fixed. Wituess said he would go about with him as he required. | This lasted about eighteen months. Diir- | iug this time he continuously attended on the defendant. Wheu he went out at night the witness attended him.' He did various things for him, such as outting* wood, &c._ Went to Otunui for Mr Camphell ; it took him three days. Went to Manaia and Hape. Creek for him also. Had gone to. Eotomahaua several times, and had frequently gone for a nurse at Mr Campell's request. Had gone to various places for defendant. Everything he requested the witness to do had been dono. The defendant had never put an

end fo the arrangement One night went to his house he said, "Oh, Donnelly. I hare chosen other company!" This was in November, 1881. He did not pay me, bat he said he would when he got the money from the Maoris. It wa&a fact that the defendant was beateu one night, and witness was also attacked for keeping company with Mr Campbell. Was attacked only by words. The defendant was afraid to go out by himself at night. He borrowed a revolver to protect himself, but the witness persuaded him to leave it at homo. He promised to buy him a piece of land in return for the j services rendered him. Never received j the land. Delayed taking proceedings, t as he thought defendant would keep his promise. Was often kept up uutil 12 and 1 o'clock in the morning. Never had but one meal from Campbell. Had mining transactions subsequent toeighteen months ago. CroBS examined by the defendantHave known him for eight or ■ nine years. The first business he did for defendant was in an action against Brassey about 8 years ago. AU the costs were paid in the case. Defendant ap peared for plaintiff's wife in an assault ease, and deducted the costs from a sum he received on account of plaintiff from the Prince Imperial Co. Thought the land he went to see at Manaia was intended by the defendant for him. Heard Campbell say it cost £1 an acre, but did not remember hearing that it contained 200 acres; Did not say he would not charge for going to Otunui as the defendant had done so many things for him. Asked for payment of the account about five months ago, when defendant asked him to put it in figures, did so through Mr Miller. Only referred to expenses, when he spoke to Campbell, did not refer to the claim for wages. Had mining transactions together, was working at Waihi for defendant from January to 1 June, 1882, at 9s per day, for which he was paid after suing for the amount due. Had a difference with the defendant a few months ago over a settlement re the Crown Princess claim. The items in the particulars of demand are for work done prior to the settlement over the Mariner | affair, did not ask for a settlement because j he expected to get the land promised him by the defendant. Escorted him to and from his hotel and house every evening for two months. JNicorima, called, swore he was the owner of the land at Mania, which he sold to Campbell. Remembered negotiations re the land, Donnelly's name was mentioned in connection with it. Thought he was a companion of Campbell's, but Donnelly was not bnying it Whenever the land was spoken of Campbell said he wan.ted (o refer to Donnelly. Campbell and Donnelly were always present. Campbell said he would not buy it if Donnelly did not like it. Campbell sent Donnelly to inspect-the land before he would buy it.

Cross-examined by defendant—He explained the manner in which negotiations were first entered into, but nothing of importance beyond bis chief evidence was elicited. .....

After hearing further evidence His Honor gave judgment for the plaintiff for the sum of £86 19s, and costs, £10 ss.