RESIDENT MAGISTRATE'S COURT, LAWRENCE.

Tuapeka Times, Volume VI, Issue 267, 13 March 1873, Page 5

RESIDENT MAGISTRATE'S COURT, LAWRENCE.

Fbibay, March 7. (Before "VinoentPyke, Esq., R.M., and Dr. Stewart, J.P.) Robert Usher for being drunk and disorderly, was fined 55., with the alternative of j two days hard labor in Lawrence goal. Oa a charge of vagrancy, Usher was sentenced to one month's hard labor in Lawrence gaol. Bell v. Miller.— Claim of £6 175,, for work and labor done, Mr. Mouat appeared for plaintiff. £3 ss, 6d. had been paid into Court, and liability for the remainder denied. The only point in dispute was whether plaintiffs was entitled to Bs. a day, instead of 75., as plaintiff alleged, it being admitted £2 ss. was due to defendant for board and lodg. ing, Judgment was given for plaintiffs for 6s, in addition to the amount paid into Court. Draper v. Qrundy. — Claim of £10 for illegally impounding certain cattle. Mr. M'C'oy for plaintiff; Mr. Mouat ior defendant. Gilbert Clark said— On or about the 24th January, Grundy drove some cattle into his yard, and afterwards drove them to the pound. He took them from a place two miles and a half from the pound, and lie (witness) informed Grundy that the cattle were Draper's. The cattle were quiet, and could be driven without assistance to the pound. In answer to Mr., Pyke, witness stated that the cattle were branded GM off rump. Peter Eobertson, ponndkeeper, remembered Grundy impounding six head of cattle belonging to Draper, and one or two belonging to other people, on '20th January. He did not leave the memorandum of ownership of the cattle required by the Ordinance, and they were entered in the pound book as belonging to an "owner unknown." The amount placed on the cattle as driving fees was 335. The cattle were quiet, and- could be driven from the Big Rock without assistance. He thought the Big Rock was not three miles from the pound. William Draper said he purchased' the cattle impounded from a man named Morrison, under the impression that assessment had been paid for them. Mr. Grundy gave no intimation to him that no assessment had been paid. He applied for a license on the 21st January— three days before the cattle were impounded. There was not one in twenty people running cattle that had his own , brand on his cattle. On the 24th Robertson sent him word that his cattle had been impounded. He (Draper) paid the 335. for driving^ fees, under protest, and 4s. poundage. The rock alluded to by Clark is two and a half to two and three-quarter miles from the pound. He paid 375, for releasing the cattle, and the remainder of the £10 was made up by the injury the cattle sustained by being driven about, which he estimated at 10s. per head ; the expense of replacing them on the commonage, which necessitated the services of a horse and a man for a day, and caused great loss of time to himself. In answer to a question put by Mr. Mouat, the witness stated that the cattle were not branded with the shamrock brand. Mr. M'Coy said it was clear breaches of the Impounding Ordinance had been committed, and read the clauses which had been contravented. Mr. Mouat said the cattle were legally impounded, as it was clear they were not branded with plaintiff's brand, and read the 168 th section of the Waste Land Act, 1872, and clauses in the Depasturing Ordinance in support of his position. He porposed to call no evidence. Mr. Pyke said the plaintiff's case had not been substantiated, as these cattle had been found on Grown lands without a license covering them. It was not competent for the Bench to rule upon the question of the charges ; but they would express their opinion that they werejexcessive, being 13s. more than the law allowed. The charge that Grundy caused the poundkeeper to enter the in bis books " owner unknown," while he knew the owner, was^ a serious one. He would not allow one farthing costs to de> fendant. John Brown's application fora slaughtering license was granted.' The Court then adjourned. [ Tuesday, March 11. Oliver Dawson was charged on informal tion with exposing liquors for sale not being holder ef a publican's license-. = Inspector Thompson prosecuted, and Mr. Mouat appeared for the- defendant. ■ Constable Hiscocks said, on the Ist February, he was on defendant's premises, when a maa came and asked for drinks, which were supplied. He did not see any money paid for the drinks. Defen-. dant's premises were last year licensed, and known as the Bridge Hotel. This was the case for- the prosecution. For the defence, Mr. Mouat called Mr. Richard "Williams, who stated that Dawson asked him to get a renewal of his license, as he done the previous year. Dawson gave him part of the money, but in consequence of his not giving him (Williams) the balance, he did not take out the license.. He did not inform Dawson that he* had not taken out the license. Mr. Mouat said that defendant was under the impression that Williams had taken out the license. Since, however, lie had altered his mind in consequence of theie being no businees doing, and determined not to renew his license. The information was bad, as it did not allege that defendant " knowingly n sold the liquor, and it w.as arguable Whether a penalty oould be inflioted unless the liquor exposed had been seized. His Worship reserved his decision till after the other-case against the defendant had been heard. QUver. Dawsfln, waft charged with keep-

ing a bagatelle room not being duly licensed so to do. Constable Hiscocks said, on the Ist February, he vißited defendants premises, and found thereon a bagatelle room, in which was a bagatelle table, and on the window was painted the usual advertisement. He asked Dawson if he had a license. Dawson said he had not; and that it was not worth while taking one out, as there was not a game played once in a month. Mr. Mouat, who appeared for the defence, Baid that a man committed no offence by having a bagatelle table on his premises.- In the present case there was no evidence to show that defendant kept or conducted a bagatelle table within the meaning of the Act, and that there was any playing on the table. Inspector Thompson pointed out that defendant admitted to the constable that there was a game played once a month. Mr. Pyke proceeded to give judgment in both cases. He said, relative to the first case, that Dawson evidently was keeping his house on for a short time till he procured a renewal of his license, but had afterwards altered his mind and determined not to take out a fresh license. Had he taken out a license in the interval since the information, he would not have inflicted a penalty. As he had not done so, he would inflct a fine of £5 and costs. In the second case, he would give defendant the benefit of the doubt and dismiss it, William Draper was chaged with allowing cattle to wander in the streets. Constable Hiscocks said he saw the cattle in Ross Place, and informed Draper, who set a dog on them and drove them away. He was certain they were Draper's cattle from their appearance, and he had seen them in the pound. Draper said that no cattle of his ever wandered in the street, with the exception of a milch cow, which came in every day to be milked. He was in the habit of driving cattle that did not belong to him off the streets daily with his dog — he considered doing so good practice for his dog. A fine of 2s. 6d. and costs was inflcted. Treloar v, Fitzgerald.— Claim of £10, for unlawful impounding. Mr. Copland and Mr. M'Coy for plaintiff; Mr. Mouat for defendant. Thomas Treloar stated that on the evening of 31st January he missed eight dairy cows and four calves, and sent his wife and son to the pound to see if they were there. His farm was about two miles from the pound. Identified the poundkeeper's receipt produced for poundage fees and damage for 2£ ss. The cattle were injured by being driven to the pound and back . Since they were driven away he had to keep some of them in the stockyard, and had to drive some of them on to a different part of the commonage. He estimated the damage the cows Had sustained at £10. He received no notice of the impounding. Defendant's fence was constructed of sods, and was not more than three feet high. It had baen broken down in many places, and temporarily repaired with brush. D. M'Alpine examined said he examined defendants fence in February. He measured the fence in three different places. There were gaps which had been temporarily repaired. What was of the fence was substantial, but it would not keep out cattle. In cross-examination, witness stated that he examined the fence after the impounding. J. R. (jrascoigne gave evidence similar to that of last witness. Mrs. Treloar said, upon missing the cattle on the 31st January, she went to Fitzgerald's place and inquired about them. Fitzgerald said he had the cattle in his yard, and intended driving them to the pound as soon as he had his tea. He did not offer to give up the cattle, nor make any demand for damage I they had done. After his tea, Fitzgerald drove the cattle to the pound, and she (witness) followed him in a spring cart. Fitzgerald drove the cattle in the usual way. She gave her son £2 ss. to pay the amount demanded, and get the cattle from the pound. The following morning the cows gave no milk, and they had to be kept in the yard since the impounding. They were brought home the same night they were impounded. The loss sustained in each cow, from the diminution in the quantity of milk given, she estimated at £1 per week, and £2 had been paid for pig feed, in lieu of milk, which was usually given them. One of the cows might be dead when she returned home. By Mr . Pyke — The cause of the diminution of the supply of milk was owing to the cattle being shut up. Cross-examined by Mr. Mouat —The reason why the cattle were shut up was that if let out thej- would again be impounded by Fitzgerald. This was plaintiff's case. For the defence, Mr. Mouat called John Fitzgerald, the defendant, who deposed that the height of his fence when built -was four feet nine inches. The be3t part of the fence still remained that height. Some parts of it were not so high, having been broken down by Treloar's cattle. Cross-examined — The fence was broken down by Treloar's cattle on 31st January, and a fortnight previously. Witness filled up the gaps as well as he could. He commenced driving the cattle to the pound about six o'clock, and they reached the pound about half -past seven o'clock. It was not dark, though he could riot say whether the sun was down or not. He put the cattle in his yard at four o'clock. H& told the poundkeeper who they belonged tOy Re-examined — Treloar's cattle had previously trespassed. A fortnight before he found eighteen head of his (plaintiff's) cattle on his farm. He then told Treloar that if he would send a man to repair the fence broken by the cattle h e would release them. Treloar refused, and witness therefore drove the cattle- to the pound, but through a mistake on mVpart,, damages were not charged. John Joyce, miner, sod fencer, and general -workman, described Fitzgerald's fence as a good old one, averaging more than four feet in height. There where places where it had been broken down. Counsel having addressed the Bench, Mr. Pyke said that in cases like the present the whole onus of proving that the fence, was not substantial rested with plaintiff. ThisJiad not. been done, and judgment would be given for defendants — each party to pay his own costs. The Court adje-urned, and resumed at 2o'clock. Kemp v. Bruce. — Claim of £3 55.» breach of contract. Mr. Copland appeared for plaintiff,Mr . Mouat for defendant. This case had previously been, tried in another form, and plaintiff non-suited. Plaintiff said he agreed with defendant for the service of a mare, with a guarantee ; that the latter brought the mare tohishor3&3 times, but theservice did Lot take place ; that he heard that defendant had made an engagement for service of the mare with Pine ; and that defendant had refused to pay £3 55., the amount agreed upon. Robert Ferguson, a man. in Kemp's employ, gave similar evidence. Mr. Mouat said he did not; dispute the facts, but no evidence had been adduced Jo show any breach- of contract. He thought if any action would lay it would be against Pine for wrongful interference.. He would call no witnesses.

Mr. Copland quoted authorities in support of his caie, pointing out how plaintiff was likely to be injured by defendan s breaking the contract entered into/ Judgment for defendant, with costs of Court and professional fee. M'Pherson v. Hammond. — Claim of £50 for breach of contract. Mr. M'Coy for plaintiff; Mr. Mouat for defendant. Plaintiff said in September, 1872, when a hotelkeeper at Roxburgh, he purchased 300 bushels of oata from defendant for the use of his livery stable, paying for them with a bill, upon which judgment had been recorded, and judgment entered in the Supreme Court against his real estate. Defendant said the oats were first-class. He paid the highest market price — 2s. 9d. per bushel ; and he was to take delivery of them at M 'Kay's farm, Moa Flat. About six weeks after his purchase, he sent for some of the oats, and got six bags. None of the horses in his stable would eat them. The were unfit for equine consumption. He never had any advantage from these oats. He had, in consequence of these being unfit for use, to purchase oats from other parties at 3s. per bushel. -He had been put to the expense of defending the action brought against him by defendant, and also of the costs of the judgment of the Supreme Court. Cross-examined — He never saw the oats before he purchased them. He had sold 20 or 30 bushels to a man named Westcott, but had not got the money nor seen the man since. He had purchased 200 bushels of oats since he found out those he purchased from defendant were useless. When he found out the state of oats, he sent a note to j defendant telling him he would not accept them, and asking back the acceptance. Michael M'Carthy said (h&tin the month of August, previous to the sale to M'Pherson, he saw the oats in question at M 'Kay's. They were then unfit for horse feed. They had not been sufficiently protected from damp, and had |got mouldy and of a bad smell in consequence. Archibald M'Pherson said he knew the oats bought' by 1 plaintiff, as they had been offered to him 8 months previously at 2s. 3d. per bushel, but he had preferred buying oats at 2s. 9d. per bushel, as he did not consider them good. He gave an entire some of the oats that came to plaintiffs' stable in the six bags, but the animal would not eat them. He sold afterwards L2O worth of oats to plaintiff. This was plaintiff's case. FOl the defence Mr. Mouat called T. Hammond, the defendant, who stated that when he sold the oats to plaintiff he thought they were good. He defendant told that he had not seen them for 18 months, butthat Douglas Brown, wlio saw them the previous thrashing, said they were good. The arrangement for payment was that plaintiff's brother-in-law should plough for him (defendant) at the rate of 16s. per acre, the amount of which should be deducted from what the oats came to at 3a. per bushel. About taree week before the bill became due, plaintiff's brother-in-law said that he (plaintiff) would not take the oats, and that he (defendants would have to pay for the ploughing. He knew nothing as to the quality of the oats. Cross-examined — Witness bought the oats as a speculation from MSKIay, at 3s. per bushel, 18 months before the sale to plaintiff, and had never seen them since. They were in good condition when he bought them, which was about a month after they were thrashed. James M'Kay, settler, Moa Flat, said he did not know the condition of the oats in September, but when he bagged them they were damaged. Cross-examined — Witness bagged the oats at M'Pherson's request. If they were good on the 24th September, they could not have got so bad in the interval. They had not been protected from damp properly, and when bagged were not fit for horse feed. 2s. 9d. was a fair price for oats in September. By His Worship -Westcott got thirty bushels by giving a verbal order from M'Pherson. This closed defendant's case. His Worship said that the principle underlying contracts of sale implied that the articles were good of their kind. The evidence showed that these oats were not good. Judgment would be for plaintiff for £40 7s. 6d., costs of Court, and professional costs. Mr. M'Coy applied for the expenses of witnesses. His Worship declined to allow any witnesses' expenses. The matter ought to have been settled out of Court. It was a diamond cut diamond sort of affair. Both parties had now got a verdict, and he hoped they were satisfied. In answer to Mr. Mouat, Mr. Pyke said the oats belonged to Hammond. Fras&r v. Mears. — Claim of £4 17a. 6d. Mr. Taylor for plaintiff. Defendant did not appear, and judgment was given for plaintiff for amount claimed, costs of Court, and professional fee, £1 Is.