R.M. COURT.

Wairarapa Daily Times, Volume 3, Issue 906, 22 October 1881, Page 2

R.M. COURT.

MASTERTON, THURSDAY. [Before H, S. Wardell, Esq., K.M,] J. C. Andrew v W. A. P. Sutton.— Charge »f nmking a fulie report by publishing a notice in the Wairabapa Daily to the effect that 10,000 sheep were scabby, whereas only a portion of them were affected, Information under Section 12 of Sheep Act. Mr Beard for complainant, Mr Bunny for defendant. Mr Beard asked leave to amend the information by inserting the words and " delivering a false certificate." Mr Biiniiy objected to this as it would he making an offence where none existed mi the original information, His Worship ruled against Mr Bunny, md the addition was made, the Resident Magistrate statins.'that if Mr Bunny had been taken by surprise he could have lime to prepare his caso. Mr Beaid opened the case and said a aublnspi-ct'T had inspected certain sheep ind reported to ibe Chief Inspector, who ■lotilied in the Waikaiupa Daily that the whole of the Sheep on the run were infected, niiinheiin" IG.OOO. Mr Smton hud taken up»n himself to issue this notice, but Mr Beard was prepared to show that only a small portion were scabby, and that not all had been inspected,

His Worship held that if one sheep on tho land were scabby, tho whole run were infected.

Mr Heard : Yes, the run but not all the sheep. The Inspector had issued the certificate with his eyes open, and was clearly reapmisiole fjr making a falae statement, He ulso submitted that having stated his cm, the onus of proof rested with the defendant.

Mr Bunny denied this and said the clause quoted by Mr Beard only referred to sheep owners.

His Worship did nit a«ree with Mr Bunny, but stated he could not ask :is demanded hy Mr Beard, that defendant should he called upon to provo a negative. Mr Beard thereupon called Mr Thomas Mackay, who deposed he was manager for Mr Andrew at Jca, and had charge »f of all sheep on the run. An inspection was made of the sheep by Mr Richardson. The nmnhpr of sheep on the station was about 16.000. These were in ibo it seven Hocks. Called them Docks because they were in separate divisions. Mr Richardson inspected four of these flocks—the BreakNeck flat flock, Rangitoto flock, Jock of milled cues, and the Waimere Suck. Had no inspection by any other Inspector between the Ist of and July. Mr Richardson told him certain sheep were infected. He wrote to the defendant iti consequence of a notice he received re the sheep. [Notice handed in but was from Mr Telford and not from Mr Sution His'Vorship ruled he could not take it.]

Mr Beard also handed in letters from Mr Eichardsun, signed as for W, A. P. Sutton.

Mr Bunny objected to theso letters beim.' taken.

His Worship also ruled a»ainst them.

On the Court resuming after luncheon, ThiHiiua Miickay stilled he wrote two utters, now in Court. He received no :nmimiuicatinn in reply from Mr Sutton, 'iiit had a verbal answer at Tinui, At the 1 inic of Mr Richardson's examination the sheep were clean, excepting in two Hocks. On tliii 14th of April he held a clean certificate (or ihe whole fl.icks. Had never ipplied for separate certificates for separate flocks. Between 1877 and 1880 ■here was no inspection. In a pori'Ui of the sheep were inspected. On the 16th of Apiil witness received a notice to dean 1200 cills Had not received any •ii.fi'cH for other sheep. In May Mr Telford flaw the sheep at the dip. Mr Beard put in a letter from the Under Secretary referring to four flocks on ilie station, and statin;; lh,t all the shpen ivere considered to lie infected.

The Ciurt o!tj"Ck!il to second-hand evidence being pivH'cii'd. Witness said all the 10,000 sheep were nut throu.'h the same yards during the 'lippimr. The yards were e'eaued previously viMi lime and sulphur.according to the instruction of Mr Richardson, Dipped all except the 1200 cnl!s, which wore Vied. Placed tlieui in another paddock, Killed S"inc before he dipned the sheep. They may have been in threo or four lifl'»retit paddocks Did nothing tn clean the culls except ly killing tliem, They fpre all killed duringabout three mouths. The colls were picked from the whole of the sheep. Dipped the second scabby flock first. Tiin colls were not dipped at ill, Drove one flock of clean sheep ilirmirh • lie paddock in which the infected sheep hid been depasturing Did not hrint! l' lfi infected sheep through any other enclosure except the yard. Did not him the dipped sheep out into a paddock that had been occupied by the infected ■iln'pp, but wero driven through a corner of if, Mr button just lately had refused tn acknowledge more than one flock on the run—this was when he applied for a certificate

To the Court: Drove the Break-neck n>k thrnn»h the paddock in which the infested sheep had been depasturing. Thev did not mix nor feed on the "round, To Mr Bunny: Dipped the whole of the <dieep on the run except the culls. He would have dipned whether scab had heen f onnd or not, Did so every year. H>id a notice tn clean, and a notice tn "S " brand the wh»le of the sheep. Gave notice lo ois iipighbnrs that a small floek was scabby. Was quite willing tn muster ill his shepp, but the Inspector never came. Dipped all the sheep before July. Some had a second dip.

To Mr Beard—The Inspector said he did not rccojjnise flocks. [Mr Beard rend from the Act to slinw that it recognised flocks! The infected sheep were depasturing in the paddock through which tho Break-neck flock had been driven, Hie sheep driven through the comer did nnt depasture or mix The fence at the comer was saturated with lime and sulnhnr.

,T. Pay ton. called, produced the original copy of the advertisement, first asking if ho were coranelled to do go without the consent of the porsnn authorising it His Worship ruled that it should he produced, and it was handed in.

The entry on the list of Mr Andrew's name had been made on the margin, and not iimnnj the other names, Mr Sutton acknowledged the signature at (he foot as his, but declined to recognise the handwriting of the body of it or the name of Mr Andrew on the margin. This closed the caso for the plaintiff, Mr Bunny submitted there was no case for defendant to answer, as it bad not been shown that he made a false report or delivered a false cortificcte. He submitted the complainant should bring home the fact of a wilfully false declaration tn the defendant. This had not been done. It had been shown that all the sheep were worked in one yard and driven through a paddock containing infected sheep. The culled flock, drawn from ihe whole of the sheep, were scabby, and nothing was done to them except kill them as it was found convenient. He pointed out that the Inspector was in a veiy difficult position, as those with scabby flocks were always ready to pounce upon him for any supposed error or slip, while owners of dean sheep were down upon him the other way if be did not strictly enforce the Act. Mr Beard thousht, with the Sheet) Aofc

at his back, Mi Sutton had no difficulties to contend with.

Mr Bunny objeoted to Mr Beard addressing the Court. His Worship held that Mr Beard might address on a matter of law, but not on the facts already stated. Mr Beard agreed, after argument, to this course, and submitted that though the interlineation of the document occurred after the execution of it, it must bo assumed to have been inserted prior to the execution. He held that the defendant had a prima facie case to answer. Mr Bunny controverted Mr Beard's

arguments, and held that under any circumstancei a case could not be'Bp'e out under the clause under which the information was laid.

His Worship considered there was a charge to answer, and the defendant was placed in the box, He stated, in answer to the Court, thoW he considered all sheep infected which passed through the same yard in which scabby sheep had recently been. The yard might have been scoured with sulphur and lime, but they could not disinfect all the ground over which the sheep would pass. He considered that all the sheep on a station which were worked through one yard, from one homestead, were for the purposes of the Act ono flock, and he thought that it was from this point being lost sight of that the see-saw system of dealing with scab had so long existed in the Wairnrapa. Cross examined by Mr Beard—Mr Richardson had been inspecting uudor him in the Wairarapa, also Mr Telford, Mr Andrew's name was placed on the list by witness' authority, on receipt of a report from Mr Richardson, which stated that two flocks were infected. As he knew they would all have to go through the one yard, and knew they were dipped, he included all the sheep on the rim iu tho report. He considered they were one flock, ns thoy wero worked from one yard. He recognised more than one flock if worked in different yards. Had beard that Mr Mackay had scoured the yard Knew they must all go through the same yard to get to tho dip. His Worship dismissed the information, then being nothing to support it. He pointed out that if only ono sheep on a run wore scabby, the whole run was declared practically infected, as not a single sheep could bo removed from it without the Inspector's consent, The Inspecter had a right to insert the name of Mr Andrew on the list, but ho thought it an error to mention the number of sheep infected as 16,000. He thought in future notices the number of sheep in any flock reported scabby should be specified, though the whole run would bo practically infected.

Horace Smith v. David Hegejie—Debt £1 Cs Bd. No appearance of defendant. Judgment for amount, and costs. [The defendant soon after entered, and applied for a ra-heartug, as lie had been present all day and had only been absent a few minutes when the case was called on. His Worship granted the application, and the case will be held this morning at 11 o'clock.]

A RB-HEARING, Hcrcock vR. R. Meredith.—Debt i'2B lGs. Mr Bunny and Mr Skipper for plaintiff, Mr Parker for defendant. Mr Skipper asked for all witnesses to withdraw. Mr Bunny stated that fresh evidence had been obtained which would materially affect Ilia ease. ~ .^ Mr Parker was at a loss to how fresh evidence could affect the written contract, which could not be contradicted by verbal evidence, Mr Bunny was prepared to show Hut in cases of mistake or surprise, a document could be reformed hy the Court. He understood that the Court ruled that if the defendant was aware of this error, parole testimony could he brought to shew that such was the case,

Mr Parker said his client intended to go entirely upon the point of law. Mr Bunny quoted authorities to allow Hint parele tvidence was admiasable as to the intention of a written contract, and that where the verbal conditions of a written contract were not fulfilled, it could be rescinded. An omission in a contract by mistake was on the same footing as one by fraud, Jfr Parker objected that the cases cited by Mr Bunny did not apply to the present one. If there was a mistake it was not of the p.ilpable character as in the cases cited.

The Court did not see any reason for the plaintiff going into the case. Mr Bunny would have to shew there was a mutual mistake to obtain relief.

James McGregor deposed that he was a«aiv miller, residing on the Upper Plain. He was familiar with the road from here to Mungapakeha, Ho had driven a team as far as the Blairlogie Road. With a five-horse team he could take 1300 feet from the Taueru to the head of the Valley, the road was then perfectly dry, and (lie team was a fair average one, Half-a-crown per 100 feet would he a fair reasonable charge for carrying timber from Taueru to the Blairlogie. From Masterton to the BlairWie Road five shillings per 100 feet was the ordinary freight, He arranged with Taplin and Hercock to carry timber from Taueru to Elder's last Juno, at ten shillings per 100 feet. The timber was for the defendant. The roads were soft at the time. It would be impossible for any five-horse team to take from 3,000 to 4,000 feet of timbor from Taueru to Blairlogie, at any season of the year Eight shillings por 1,000 feet for currying timber between these points would be outrageously low A thousand feet was considered a fair load among teamsters. It was usual to charge for the carriage of timber by the 100 feot. (In answer to Mr Parker.) He waß a Raw miller and a carrier also. It was about twelve-and-a-half miles from Ihe sawmills to Taueru. The price to the Taueru did not vary in either winter or summer. In March 1880, his terms for delivering timber to Langdale were 18s per 100 feet, He believed then thjtj t'mber was 10s per 100, and the haulage* Bs. Dry timber could be carried twentyfive per cent cheaper than green timber. The Court asked if Mr Parker would admit that the figure 1000 was inserted by mistake. Mr Parker: No, decidedly not 1 AV. Hercock deposed that ho had charged the defendant for 2741 feet at 8s per 100 from Taueru to Mungapakeha, and 2071 from the mill to Mungapakeha at lis per 100 feet, and had delivered the timher referred to. The prices charged were agreed to by the defendant in Masterton. He was standing outside the Bank of Australasia when Mr Meredith asked him what he would carry timber for, and he replied 8s per 100 feet from Taueru, and lis per 100 feet from Mungapakeha. Mr Meredith said he would accept these prices. He promised Mr Meredith to send him the price of some shingles, and to put the price of the cartage in the note, and it was mixing up the shingles and cartage of timber that ha made the mistake.

Cross-examined by Mr Parker: Thi arrangement between him and Meredith he considered a purely verbal one, and would swear that hi considered bis contract a verbal one, though he had at Meredith's request'.placed tho matter in writing, and had made a mistake in doing so. Was not aware of his mistake till he saw the tender here. tr trnv "■ j«»..-j . tr \....i

Hercock'a business, and look over the contract to carry Meredith's timber at 8s per 100 ft from the Taueru to the Mungapakoha. Had carried at 7s fid for four miles, but tlio road was better. From McGregor's he carried about 900 ft at a load. Did not believe any team of five horses could take 1500 ft over the road. Took two days to a load carrying Mcrodith's timber. To carry timbnr tliprc for 8s and lis per 1000 ft would nui |ay for horse feed. Heard a little conversation between Meredith and Hercock at tho Taueru. Heard Hercock ask for his money, and Meredith say ho had mado a mistake in his account. Heard Meredith sivyhe did not want any summonsing in llio affair, and if Hercock had come to him he would havo met him in the matter. Did not hear him refer to any other mistake. Heard Mr Meredith say he could

him and be damned. Witness asked Meredith what the mistake was, *id Meredith said Hercock had made a mistake in his tender, and instead of putting down 8s and lis per 100 ft, had put down 8a and lis per 1000 ft. Told Meredith if it was a mistake, and he knew it, it was rather mean to take advantage of it. Meredith said if Hercnck had come to him quietly he would have settled; but was not going to be buunced into it. Cross-examined by Mr Parker: Was quite sure Meredith said Hercock had made a mistake in his tender. Thought oats were 2s a bushel when lie took over the contract.

This was plaintiff's case. Mr Parker submitted that no evidence had been given to show that defendant knew of any mistake in the tender, nor had be ever admitted any mistake had been made in it. With regard to Taplin's evidence, he held that ill's should not bo taken as evidence of any arrangement between the plaintiff and defendant. E. li. Meredith, called, depjsed that he was defendant in the action. He tjave similar evidence to that given at a previous hearing of the case. He contradicted nearly all the statements of the plaintiff and the witness Taplin, denying that he had said be knew tho tender was a mistake, or that Taplin had said it was a mean thing to take advantage of it, Ho made no verbal arrangement with Hercock re the carriage of the timber. Was prepared to call a witness who had carried timber a greater distance at the same price as flercuck's tender. Had received other tenders for the work, one at 2s and us per 100 feet from Fenniiiger. Received no tender from Scanlan. [The monotony of the proceedings were here varied by an interesting argument batween His Wmship and Mr Bunny as to to the relevancy of a question which the latter wished to put, His Worship refusing him permission to ask it, and Mr Bunny insisting upon his right to do so. The matter was adjusted by the auestion being put in a different form.]

Cross-exam'natinn continued: Witness was rather uncertain about the way in which he received the tenders-whether verbally or written. Fermiuger's tender was written by defendant ami signed by tenderer's mark. Had Inst the ordinal tender, and had procured a copy of it from Ferininger in August—tho original tender being signed in .January. Had since found the original (produced, j At the Taueru, meeting with Hercnck, he told him no did not 'visit to go to Court about the matter, us lie knew lie was liable to a penalty of K as the tender was tint stamped by Her-

cock, and the expenses would be greater than lie would ho aide to recover, so - without prejudice to his claim he said he would give him equal to the next tender, viz., is and 5s per lOOlt, and would settle the matter at once, JTud received tender previous to receiving Hercock's, The timber wits l.yinj,' nt the Timcrii for nine months. [Witness- was submitted to a severe cross-examination both from the Eoncb and counsel as to the dates of writing and sendint; of tho various copies, and originals of letters and tenders which had been placed into Court by him, and the ease was adjourned to thismorning, at 0 o'clock.!