MAGISTRATE'S COURT.

Waikato Argus, Volume I, Issue 1, 11 July 1896, Page 8

MAGISTRATE'S COURT.

♦— Thuksway.—(Before Captain Jackson, S.M). S. 11. KELLY V. INSFECTOBS ROS.S AND CLIFTON. The Court resumed at 9.30 a.m. Wm. Lancaster, cross-examined by Mr Tole : I was trapping rabbits on Kelly's place from 26th February to March 7th, and I caught 2SI during that time. MiKelly told me that if we caught 1000 rabbits he would swear that we did not. On March sth, Kelly came to me and asked me if I would like my dog poisoned ? I replied No, and he said I had better tie him up, for he was going to lay poison. I did not see him lay any poison on March 3rd. Kelly came and asked us if we would like some mutton, and we refused. The mutton was to come from a sheep that was dying. This was three or four days before we laid any poison. I have laid poisoned grain at Alexandra in the same way as at plaintiffs farm, and last winter at Ongaroto, near Lichfield, where there were sheep. There were no fatal consequences as tar as I am aware. The poison was not very thick on Kelly's ; there were 14 or 15 grains of oats on each sod. We only laid this grain in one portion of a paddock, and used about 61b as near as I can tell. The grain was confined to this paddock which comprised about 100 acres. There were no sheep in the paddock when the poison was laid. I remember the time Mr Kelly removed the sheep to Radford's ; it was about a week after wo ctarted poisoning. There was at that, tune a large paJdock untouched with poi-on in which he could have -placed his sheep ; it would be about 25 or 30 acres. Kelly's farm was thoroughly infested with rabbits, and I do not remember ever seeing any place so bad. The poison was very effective, and the smell at the rabbit burrows was very bud, showing that there must have been considerable destruction. 1 never told Kelly or his son that the poison laid was harmless to sheep. All I said was that I never knew any harm to come of it. What I did in this matter was in accordance with instructions received from Mr Ketr and no one else. The poison is laid on an upturned sod so as to attract the rabbits. 552 rabbits were caught inside of 100 acres, and the traps were kept within that radius. Some of Kelly's sheep were in very fair condition and some were not. I saw the feed on Kelly's farm ; it was very bad in March, and was dried up all over the farm. I reckon the value of the sheep when they were removed at from 6s 6d to 7s 6d. After taking the inside out of the rabbits we gave them to the dogs, who felt no ill •effects. By Mr Cruickshank : Kelly gave me warning about the dog, and told me to it up. It was not my duty to tell him to keep his sheep away. I told him all that was necessary—that we were going to lay poisou. I thought the poison was perfectly harmless as far as sheep were concerned. I had no idea what was wrong with the sheep that was dying. Keliy did not tell me that it died of bots. Ongaroto was a wild, open run, and belonged to the natives Had no idea how many aheep were there; they had plenty of scope, and the feed was better than that at Kelly's, so that the sheep would not be so likely to eat the poison as Kelly's would. We left a paddock of '25 acres untouched, but it was poisoned after the aheep were taken away. Hitchman did not lay two lines oi poison iu it before the sheep left. We never gave Kelly any hint to put his sheep in the 2a acres. vVe poisoned the paddocks consecutively, and tho 25 acres was the last one we came to. I saw the sheep in the poisoned paddocks, but did not notice •them eating the poison. When I went on to the place I produced an authority to trap, signed hy Mr Ross. There was no grass on Kelly's place to my knowledge We buried about Clh of poisoned Brain that was left, under Mr Kerr's instructions, because the pollard was more effective than the grain. By Mr Tide : The auttiority I showed to Mr Kelly, signed by Mr Ross, mentioned Weston LeaMr Tole then pleaded for a non-suit, tout His Worship said he would rather hear all the evidence. Mr Tole then addressed the Court at ;Bome length, pointing out the alteration in Section 11. of the Rabbit Act, 1576, where a clause had been taken out to -enable an inspector to use poisou without the consent of the owner. He submitted -that the action should have been taken against the Government, and not against intermediate officers. The first witness for the defence was Edmund Clifton, Inspector of Stock in charge of the Auckland district, who said : I had nothing to do with the laying of poison on Weston Lea, and I gave no Orders in connection with it whatever. I viaited the farm on February 14th, at Mr Kelly's request, my object being (at Mr Kelly's r< quest), to form an opinion as to whether there were rabbits „. ere or not. I was quite satisfied that there were rabbits there. If I had been an inspector of the sub-division, actively engaged in the destruction of rabbits, what I saw would have been sufficient to warrant me giving a uoi/oe under the Act. The poison was laid in the proper and usual manner, and t saw nothing careless or wanton in the way it was done. It was the way recommended by the Department and the way usually adopted. Poisoning is recognised as the oue and efficient means of dealing with the pest, and Che extra precaution was takeu here of laving the poison on an upturned sod. On large open properties it was often just scattered on the ground. I have heard of the warning given by the rabbittcr, and do not consider from long £xp»rienc2 that any further warning was

. ! necessary. These men were acting in the ordinary customary way, and iu compliance with the Act. If the sheep took the poison, of course it was desirable to move them. I returned to Weston Lea again on the 20th March. On that occasion I suggested to Mr Ross that as the necessity for leaving the poison had passed, the sods could be turned back to cover the poison. The sheep could then come back into those paddocks, and by that time the sheep could be turned on to the rest of the farm, for with a fortnight of dry, sunny weather, the poison would become inert. That is referring specially to the pollard. The poison in the oats becomes useless after a few days' sunny weather. About five years ago poisou was laid on Mr Kelly's farm near Alexandra by the Waikato Inspector. When at the Weston Lea farm I noticed the pasture and the sheep rather particularly. The feed was rather bare, as is usual on stocked farms at that season of the year. I saw a good many of the sheep. It was a mixed mob. I saw the sheep when, they were on Radford's farm and also when they were sold in Auckland. From their appearance I do not think there was any depreciation in value. The lot contained some young wethers aud some ewes. I consider the sheep brought a reasonable price, but I canr.ot remember the exact prices. Cross-examined by Mr Cruickshank : I went to Weston Lea because Mr Kelly invited me to go, and because Mr Kelly was finding fault with the work. _ I saw that there were a great many rabbits.aud I was led up to that conclusion from the number of live barrows on the farm. Mr Kelly asked me to put on a Government rabbitter to test whether there were any rabbits or not. I did not agree to do so. I told him that he was under the orders of the Rabbit Act and that had to be complied with. I further said if the men com* and there are no rabbits you have your remedy, or something to 'that effect. Mr Ross accompanied me on this visit and heard everything of importance. I had nothing to do with the men going on to the place. Mr Ross told mo that hs had arranged with tho men, to come. On being satisfied that the rabbits were there and that tho Inspector was justified in taking tho action he did, 1 did not interfere. The action was taken under Mr Ross' supervision. From what Inspector Ross told me I knew that the rabbilters were coming. The sods wore replaced to pleaso Mr Kelly. I knew the poison would kill sheep ; it would kill any animal; but I don't say the sheep will take it readily. I thought fair and efficient work had been performed when the sods were replaced. It is not a fact that tho sods were replaced under instructions from Wellington ; but I had instructions to visit the place after Kelly reported that his sheep were dying. I think I suggested the turning down of tho sods to Mr Kelly, and told him thai he could then brin;r his sheep back. I do no-, think Rally's sheep had lost any condition when I saw them in Auckland. By Mr Tole : Mr Kerr had sole control of these men. Kelly sent me no bill or claim whatever; but asked me that I should not stonewall his claim against the Government. D. Ross, Inspector of Stock for the Waikato sub-division, deposed : I have had some 16 years' experience in the extermination of rabbits. lam appointed under the hand of the Governor. Iu December, 1595, Agent Kerr reported that rabbits were numerous on Weston Lea. He again reported the matter about the beginning of February, and on oth February I gave statutory notice under the Act. Kel'y took no efficient means to destroy tho rabbits, either before or after the notice was given. On 14th February I went out to Weston Lea with Mr Clifton, and saw the state of the place. I satisfied myself that the rabbits were too numerous. I went out again on the 25th with Agent. Kerr, and hud never on any previous occasion seen so many rabbits on the farm. I was there only a short time and saw 40 rabbits. After this I sent a notice to Kelly that the rabbiters were coining, and offered to delay the work for a few days if it would put him to any inconvenience. Mr Kelly reported me before any poison was laid, and has reported me constantly ever since. I saw no rabbits trapped. Plaintiff never sent any bill or demand to me for his loss until I received the summons. 1 took no part in the laying of the poison, the work was directly under Agent Kerr's supervision. From the tone of his reports I imagine Mr Kelly has illfeeling against me. He told me he would give himself six months to remove me from the Department, but perhaps it would not take so long. Tho phosphorus coming from the stomach would not smell like match-heads, but it has a pungent smell, resembling garlick. Plaintiff wrote me a note on 12th March, saying that if any of his stock, cats, dogs, or turkeys, died iie would hold me responsible. I opened one of the dead sheep in the presence of Mr Kelly and Agent Kerr, and found no trace or smell of phosphorus or any poison. I found nothing that would account for death. In the South Island the poison was laid more carelessly than in the Waikato ; it was distributed on the pasture, and it was the general impression there that shesp would not touch it unless very carelessly laid. [A clipping from the Otago Witness was here produced, saying that the poison had been laid in paddocks where there were cattle, sheep and horses, and only the rabbits had taken it]. The rubbiters in this instance appeared to have taken unusual precautions. I instructed Agent Kerr to inform Mr Kelly that poison would be laid, but I never gave him any notice. When Mr Kelly showed me the sheep he took some of the contents from the stomach, tvhich he said was pollard. Later on he said if ten men

swore they did not, he would swear they did die from the grain. The feed on Kelly's farm in February and March was very poor, and Radford's was equally as good, and I told Kelly that. Kelly's sheep were in good condition, and the best of them would be worth from 7s to Bs. Mr Peacocke, the owner of Weston Lea, had to pay £ll for the extermination of the rabbits. Cross-examined by Mr Cruickshank : My idea is, if che sheep take the poison it will kill them. The regulation re the laying of poison was received after the poison was laid. I gave Lancaster an authority to eutcr Weston Lea to destroy rabbits. We have poisoned in the district before, and as a rule the laud was not so thickly stocked as Kelly's farm. 1 had Kelly's report back from Wellington and in my hands before the poison was laid, but that certainly had nothing to do with tho laying of the poison. From rabbits that were opened I detected what I consider was the smell of phosphorous in the stomach. We ouly turned tho sods down as Mr Kelly was uneasy, and we did not, wish to put him to any inconvenience. I might have asked Mr Kelly to bring his sheep back. Mr Kelly and I went round two of the paddocks to see if the sods had been turned back, and 1 saw sods with the poison still exposed. I treated Mr Kelly with more consideration than I have ever treated any man before. I cannot, say what caused the sheep to die. Ido not remember ever telling MiKelly. I was sorry the sheep were poisoned ; but, I told him that, if ho had a good claim he would probably be paid for the sheep. To tho Bench: I saw nothing in the paddocks to account, for the sheep dying besides the poison. I noticed no disease on the sheep b<-foro tli6 poison was laid. I saw no dead turkeys. Alfred D. Bruce, of Whatawhata, 15 years old, said : Poisoned pollard had been put, upon his mother's farm at Whatawhata, but no sheep had died from the effects. His mother had about, 100 eheep running on the farm, and poison was laid on the whole 150 acres, in tho most likely places to find rabbits. The dogs refused to tako it. Cross examined by Mr Cruickshank : I think the poison was laid in February or March last. Agent Kerr showed us how to lay it. The sheep were running iu the paddocks where the poison was laid the whole time. The feed was fair, but not extra good, aud the sheep were doing well. No poisouod grain was laid on our place. A. W. G. LeQuesne, chemist,of Hamilton, said : Mr Kelly came to me some time in March and asked me to examine the stomach of a sheep to see if I could detect phosphorus. I looked at it, but made no close examination. I could not detect the slightest smell of phosphorus or anything to indicate its presence. I offered to analyse it if he would pay me, but he did not leave it. Cross-examined by Mr Cruickshank : I asked Kelly to bring iu the stomach of a sheep recently dead. I did not detect phosphorus ; it has a peculiar smell of its own, and no matter how decomposed the flesh may be. the smell can be detected. Phosphorus had other properties which made it easy of detection ; it caused everything it came in contact with to assume a luminous appearance. Phosphorus pure and simple would smoke in the sun. but I could not say if it would smoke when mixed with pollard. Sometimes phosphorus took effect at once, aud sometimes not for some days. It was quite possible for a sheep to eat phosphorus aud yet live for three or four days. It depends not so much upon the amount takeu as upon the health of the sheep. It was possible for a sheep to eat poison on Weston Lea, and die somewhere else. I could have analysed the stomach in half an hour. The Court was then adjourned until August sth, ISII6.