RESIDENT MAGISTRATE'S COURT, LAWRENCE.

Tuapeka Times, Volume III, Issue 134, 1 September 1870, Page 6

RESIDENT MAGISTRATE'S COURT, LAWRENCE.

Monday, Aug. 22. (Before W. L. Simpson, Esq , 8.M., J. F Herbert, Esq., J.P., and Aiex. Stewart, Esq, J.P. M'Kinnon v. Lancaster. — Richard Lancaster was charged, on the information of Donald M'Kinnon, that he did, between the 22nd and 24th July last, maliciously kill a cow, his property, at the Beaumont. Mr. Copland appeared for the prosecutor-, and Mr. Barton, from Dunedin, appeared for the accused. Mr. Copland addressed the Bench for the plaintiff, setting forth the head of particulars, and called Mr. M'Kinnon, who, being sworn, said — I am a settler at the Beaumont Terry. I remember the 24th July. I found one of my cows dead. I found her near my house (plan produced.) I saw her alive on the 22nd. I milked her on that day. She was lying on her back, and her left horn stuck in the ground. With the assistance of my wife, I turned her over, and found a wound behind the horns, at the point of the neck ; and having examined the wound, I came to the conclusion that it was done by a sharp instrument. The wound was about one inch long. She was a healthy cow — had no decease. I have seen one cow pithed, and this wound was in the same spot. When I found her, I came into Lawrence and lodged an information with the sergeant of police. Mr. Lancaster frequently drove my cattle away off the commonage. Previous to this, Mr. Lancaster came to my house in reference to a letter I sent to the Waste Lands Board about his sheep. Ho said he knew it was about the sheep, and would put no man on the ground. He had a drink of milk, and I went to the cattle, and went up to this very cow, and scratched her, and observed to him, this is the sort of cow to have. I have been on fair terms with the defendant as a neighbour, with the exception of some few barneys occasionally. (The Bench did not want the history of each barney. Ultimately the witness was got to say that they had no barney other than would happen between any two neighbours.) I saw the police previous to my laying the information. Constable Henderson went out. When I was going home on the same day I met Lancaster on Evans Plat. I asked him if he had seen any of my cattle. He replied that neither he nor his boy were at home these two days. I answered him that I had seen his boy on the day previous (Saturday.) I said to him there has been a butcher amongst my cattle. He said the cow might have been killed by another beast. I said that could scarcely be, from the position of the wound, He stated that if the cow was down and bellowing, another one might have pierced her. I said in that case there would be some marks, and that the blood would be seen. He answered that the blood was inside. Subsequently he said that he had not been out of his paddock on that day. Subsequently, on the occasion of branding one of Tom Arthur's cattle, I had a barney with Lancaster, and he then said that he would not meddle with my cr-ttle any more. He had been doing so previously. I found some of them on the Blue Mountains afterwards. Cross-examined by Mr. Barton. — I have no ill feeling against Mr. Lancaster. I don't want to give him 14 years or any other time. I am a Highlander. (The Bench remarked that perhaps it was a part of a Highlander's disposition to have barneys.) I have not been in the habit of quarrelling, I did not want to get him out of the Beaumont, but he wanted to get me out. He wanted the ground I occupy, and offered to buy it. G-amble told me of this, and I have him here as a witness. I don't know whether Gramble wants to get Lancaster out of his place. The cow, when I found her, was lyinyf on a slight incline, where the police saw her, only she was turned over with her feet downwards. Her head was thrown back, so much so that the wound was closed, and no blood could issue. There was no blood either on the ground or on the cow. It was a clean cut. There was a little froth about her mouth. I swear that I have no desire to lock Lancaster up, or injure him in any way, only that I was told he used threats against me. B.y the Bench. — The wound is about one inch long. I cannot tell the depth. Constable Henderson, being sworn, deposed — I am a constable in Lawrence. I remember the 25th July last having a conversation with Mr. M'Kinnon. I saw him at his residence. I saw a cow — at was dead. It was lying about half a mile from prosecutor's house, on the commonage. The cow was red and white. She was near the top of a spur, lying on her side. I examined her, and found that she had got a wound behind the horn, the usual place for pithing, A sheath knife would have made such a wound. It was about one inch long, and seven or eight inches deep. I think the wound was the cause of death. There were no other wounds or marks that I could see. I had the cow opened, but saw nothing wroug. I had the head cut off about three or four inches behind the wound. When the he d '^ras cut off the blood came from the body. I saw no blood about where the cow was lying, The inspection

led me to believe that she was not tutued. Cross-examined by Mr. Barton. — I know something about tutu. If tutued and found dead, cattle sometimes froth at the mouth. They also froth when pithed. Cross-examined by the Bench.— ln my opinion the wound was the cause of death. John Gamble, being sworn, deposed — I am a farmer at the Beaumont. I know Mr. Lancaster. I know Mr. M'Kinnon. I have had a conversation with Lancaster about M'Kinnon's cattle. It was in May or June. Lancaster said he would put M'Kinnon's cattle away from where they were grazing at that time. The ground was a commonage. It now belongs to Lancaster. We have had other conversations. I was then in the employ of Mr. Lancaster. It was about the cattle bothering him. He said that he did not care abo.it M'Kinnon so near him. He distinctly said that he would put the cattle from grazing there, He told me frequently to keep my mind to myself, and not tell what passed between us. I don't know the cow in question. Cross-examined by Mr. Barton—I have no fault to find with Mr. Lancaster. We are not at variance. I tried to sue him for some money he owed me, but got it without sueing him. I had to pay the lawyer I employed and did feel a bit sore about it. I threatened that I Avould be upsides with him, but I was in liquor at the time. I have no ill feeling against him. William Gray (16 years of age) being sworn, deposed--I am in the employ of Mr. Lancaster. I remember Saturday the 23rd July last. I saw some cattle, I could not tell to whom they belonged, They were a little distance from Lancaster's fence. I did not see anyone amongst them. I saw Mr. Lancaster at his own house. I saw Mr. M'Kinnon on the 24th. He came to me in the paddock. He asked me if Mr. Lancaster was about the commonage or ranges. I said not that I knew of. M'Kinnon said that he thought Lancaster had killed his cow with a sheath knife, and wanted to know if I had seen him. I said that I knew nothing about it. I did not tell M'Kinnon that Lancaster was amongst the cattle. Lancaster went to plant some trees after I came home. The place where he was planting these trees was not the nearest part of the paddock to the cattle. This would be about three o'clock p.m. Mr. Lancaster came home about 5 o'clock. The men came home with him — Cavanah and Donaldson. The ploughmen were working the hoises. Cross-examined by Mr. Barton. — M'Kinnon did not say to me that he had seen Lancaster kill the cow. I know Sam. Cowap. It is reported that M'Kinnon and he are not friends. I don't know Lancaster's boundary. The paddock where he was planting trees belonged to Lancaster. By the Bench. — The cows were some distance from me. I don't know whether they were dairy cattle or not. If the cattle were feeding towards M'Kinnons, Lancaster would have met them on his way home, but he must have gone outside his fence to do so. Steven Cavanagh, being sworn, deposed — I am a labourer in the employ of Mr. Lancaster. I recollect the 24th of July last. I was planting some trees on Lancaster's ground. I knocked off at 5 o'clock. Lancaster and Donaldson were also planting trees. We all came home together. I saw some cattle outside the fence. I could not say whose they were. I think they were young cattle. There was a woman sitting on the bank close to where we were working. She had a spy glass. I don't know how often she used it. Mr. Lancaster did not ask me to leave off on account of the rain on that day. I saw a dead cow at a distance on the spurs. The cows I saw were going in the direction of M'Kinnon's place. Cross-examined by Mr. Barton. — Mr. Lancaster, on his way home, could not meet those cattle. I have seen many animals pithed, and blood always flowed from them in large quantities. Lancaster was with me on that day until seven o'clock. I have been two years at the Beaumont. It is rumoured that Lancaster and M'Kinnon are not friendly. By the Bench — I could not come to any conclusion as to the cause of death. I saw the wound. It presented the appearance of being a pith mark. The cow was not much swollen when I saw her. There was no appearance of a struggle on the ground. The cow might have died, and afterwards have been pithed. I saw the wound. Examined it and put ray finger into it. I have seen bullocks pithed, but never examined the wound. This wound was about one inch long, and very clean ; no blood to be seen. The skin was close together, aud the conclusion I came to was that the wound had been inflicted after death. I saw the head to-day ; the wound does not look so clean as when I first saw it. I don't think that the knife Lancaster had pruning trees could inflict such a wound ; it was broad at the point, aud not a proper pruning knife, but q, sailor's knife. My opinion is that she was dead before the wound was made. I could not say who did it. Cowap an.l M'Kinnon are not friendly. I never knew of Mrs. M/Kinuon. firing a pistol at^,any

one. The cow might have died a natural death. I have heard of cows, and sheep also, dying by falling on their back, and could not get up. It might be possible in this case. Animals pithed struggle, and blood must flow. I could not keep a cow from struggling after being pithed. The breadth of the knife and width of the cut are much of the same size, t Cavanagh recalled — I was pruning trees on the 23 rd July, the knife I had was a clasp knife. It had a blunt point. It has been in my possession ever since. Mr. Lancaster never had it in his possession. I swear this. The knife I had could not produce the wound in question. This was my belief at the time. My opinion is that it IB not possible to pith a cow alive, and no blood to flow. Blood always follows pithing. Andrew Donaldson, being sworn, deposed — I am a miner. I remember the 23rd of July last, I was working at Mr. Lancaster's. Cavanagh was working with me. I went to Lancaster's house about 5 o'clock and remained until 7. I was planting trees, and Cavanagh was pruning trees. The knife he used was a good size. It might be about an inch wide, and nine or ten inches in length, handle and all. I saw a few head of cattle outside the fence. I can't say how many. I made a remark to Cavanagh. I wondered whether they were M'Kinnon's cattle. Cross-examined by Mr. Barton — Lancaster could have gone to the cattle without our knowing it. I could not on that night have got hold of a cow and pithed her, as the night was dark, The spur the cattle was on was pretty steep. I left Lancaster at his own house with his boots and hat off. I saw where the beast lay ; she was on a spur near the top. Mrs. Cavanagh was sworn, but her evidence was not material. John F. Herbert, being sworn, deposed — I know M'Kinnon. I remember in July, 1569, employing him in gathering some cattle for me, and he was to get 20s per day. I could not say that I said anything about his chance of losing some of his cattle. This closed the case for the prosecution. : The head of the cow being at the Courthouse, the Bench went to inspect the same, and afterwards took their seats. The following judgment was given by Mr. Simpson, who said the Bench, upon considering the whole of the evidence, have come to the conclusion, without requiring any evidence for the defence, that there was no prima facie case to warrant them committing the accused ; and they had to express their surprise and astonishment that such a grave charge should be made upon the evidence brought forward. The prosecutor ought to have paused, and that for a long time, and weighed well the evidence he had to adduce in support of his case, ere he took so grave a step, involving as it did no less a punishment than fourteen years. The Bench were satisfied that the wound had been inflicted after the animal was dead; and Mr. Lancaster left the Court without the slightest stigma on his character. There was general applause in the Court, which was speedily checked. Mr. Barton stated that he was happy to find the Bench had come to a conclusion without requiring him to produce evidence for the defence. If they had not done so, he was prepared with the most positive evidence, and that from experts, that the wound in question was inflicted after death. The Bench stated, in justice to Mr. Copland, that had that gentleman been consulted in the matter before the case was begun, they were satisfied that the present proceedings would never have been before the Court. Tuesday, Aug. 23. (Before W. L. Simpson, Esq., R.M.) Parsons v. Robbie. — Claim of £7. Mr. M'Coy for the plaintiff. Amount paid into Court. Herbert and Co. v. North. — In this case Mr. G-ooday appeared for the plaintiffs, and Mr. M'Coy for the defendant. Mr. G-ooday, in opening the case, said that his clients, in 1866, advanced upwards of £50 to the defendant, and as security for its repayment, took from defendant a bill of sale over certain property at Tuapeka Mouth. The amount had never been paid, and in 1869 the defendant became insolvent, and passed' through the Court, and that, relying on their security, his clients did not prove their debt. The defendant had endeavoured, by blowing hot and cold, to commit a fraud on his creditors — he had, in fact, endeavoured to keep his property at Tuapeka Mouth for himself, defying the bill of sale, and not surrendering the property at the time of his bankruptcy to his creditors. By this action the plaintiffs sought to be put in possession of the tenement, and also to recover the sum of £10 damages, for its illegal detention during the last eight months by the defendant North. He called Mr. J. Herbert, one of the plaintiffs, who deposed to the facts as stated by the learned counsel ; and further, that by reason of various journeys to and from Tuapeka Mouth about this business, his firm had sustained a loss of more than £10. The witness was cross-examined by Mr. M'Coy, but the evidence was not material. This was the case for the plaintiff. I

Mr. M'Coy addressed the Bench for the defence. He said that his client was a miner at Tuapeka Mouth, and that having been unfortunate, he became involved, and was obliged to seek the protection of the Bankruptcy Court, the plaintiffs being among his creditors. He satisfactorily passed his final examination, and was discharged from all debts, claims, and demands provable under his bankruptcy, on the 10th May, 1869 ; since which time the plaintiffs, on two occasions (7th July, 1870, and 11th July, 1870), endeavoured to deprive the defendant of the miserable wreck of his property, which more charitable creditors spared to him — on one occasion sueing him for rent of his house, and on another for use and occupation. On each occasion the plaintiffs were non-suited with costs ; nevertheless, they again attacked his (the learned counsel's) unfortunate client, bringing him from his work, at great expense and loss of time to defend himself against their persistent persecution; and he (the learned counsel) trusted that this case would result as the other cases had done, and that his Worship would bear in mind these matters when considering costs. Plaintiffs' counsel relied on a document facetiously termed a bill of sale, but which required only a glance to show that it was mere waste paper. (Mr. M'Coy here analysed the document, quoting at great length from the Bills of Sale Act to show that it was bad in substance and in form, and that the affidavit and jurat were wrong ; and further, that it had not been filed within the required time). Such being the case, he contended that the debt to Herbert and Co. was one provable under the bankruptcy, and if the plaintiffs failed to prove that was their own look out, and their loss of dividend was attributable solely and only to their own laches. Now he (the learned counsel) held in his hand the defendant's "final order of discharge from all debts provable under his bankruptcy," and he contended that he had shown that this was a debt so provable, and that ergo the defendant was absolved from it. The section No. 123 of the Bankruptcy Act, 1867, particularly relied upon by Mr. M'Coy was read by him in extenso ; and in conclusion, he remarked as for that piece of paper (bearing a legend perhaps congenial to the sportive fancies of the parties, but not in any way pursuant to those forms which the law requires) it would doubtless afford the Bench much amusement, but would hardly benefit the plafntiff's case. Mr. G-ooday was about to reply, but his attention was drawn by Mr. M'Coy to the fact that no witnesses had been called for the defence. His Worship remarked that it shouM have been shown that this property was included in North's assets when he went through the Court. Mr. Gooday said that it was not included. One of his clients had inspected the schedule, and assured him of this. Mr. M'Coy said his client was prepared to swear that the contrary was the fact ; and he further remarked that if plaintiffs held a valid bill of sale, their obviously proper course was to exercise their power of sale; but this (so called) bill of sale conferred no such power. As regards the assertion that this property had not been included in the assets, the presumption of law was that everything was properly done according to the maxim " Omnia presumnunture rite ac solemniter acta esse ;" and even if not in the schedule of assets, his client would by law be excused, being allowed to retain property to the value of £25. Of course if this claim to the house fell through, the claim as to damages would be included. His Worship decided to adjourn the case till Ist September, in order to ascertain for certain whether North had or had not returned this property in his schedule of assets.