R.M. COURT.

Wairarapa Daily Times, Volume 6, Issue 1819, 21 October 1884, Page 2

R.M. COURT.

MASTERTON-MONDAY.

(Before H. S. Waedell. R.M.)

Nielsen v Neilsen and Petersen - Claim for £6O damages arising out of certain sheep and lambs having been killed by dugs belonging to defendants. Mr Beard for plaintiff and Mr Bunny for defendants.

Plaintiff deposed to finding a number of "sheep which had been killed. On the night of August 31st he found 8 killed and others worried, On September Uth he found 19 sheep and 20 lambs

worried badly, and several of them died since. Out of 100 sheep he had only 82 left on September 14th. He went out early in the morning and saw two dogs fastened on to a sheep that was dead. He fired his gnu and the dogs cleared, one being hit, he thought in the eye. He followed one of the dogs to Eketahuna and defendant Neilson owned to'the dog and said he was sorry and would.pay the damages. He also saw the other defendant Petersen and told him his'ilog had bitten the sheep, and ' Petersen.; said he would shoot the dog. Peter Petersen and others went down to see the damage done and afterwards at the Hotel offered plaintiff £22, which he declined to take/ Petersen claimed the ownership of the black dog referred to and promised to shoot it, but had not done so yet to bis knowledge. He had lost 25 sheep up to the present time, five had been lost in the river and twenty killed by the dogs, He bad also lost 20 lambs. The value of the sheep was 30s each and the lambs 6s each. They were fiomney Marsh well bred sheep from Mr Donald's farm, Manaia. By Mr Bunny: On the 31sfc August he found 8 sheep killed, and 4 died afterwards; these were in lamb, or had recently lambed; On September 2nd the floods occurred and four out of eleven acres of his paddock was flooded but none of his sheep were drowned. On September 14th he showed defendant the dead and wounded sheep. There were 19 sheep actually wounded by dog bites. McLennan and Chisholm went down with defendants to see the damage, and to see if an arrangement could be come to to square the damage. On their return Petersen offered him £22 to settle the matter. He paid 12s to 14s for the sheep after last shearing. He had never claimed from the defendants the sum he was now suint; for, but had asked from them £35, whioh they refused to give. He claimed to recover £6O for 25 she and lambs and the injury to the rest the flock by dog bites. Magnus Neilsen gave evidence to the fact of seven or eight of plaintiff's sheep being dead, and a number wounded by dogs, He also saw on the 14th of Septembor, two sheep killed and 20 wounded by dogs. On returning to the hotel he saw a black dog which Petersen claimed to be his, and Petersen asked his mate to shoot the dog, Petersen afterwards offered to pay a pound a head for the 22 killed and wounded sheep, and take the sheep away. Soren Neilsen refused, and snid he would not allow anyone to interfere with the sheep at lambing time. He valued the sheep at 30s, including iambs, They were heavy in wool.

Johu MoLennan gave evidence corroborative of that given by the last witness in respect of the sheep injured by dogs on the Hth September, He went with two others to see the sheep, at the request of plaintiff to ascertain the damage, but not to fix the value of the sheep. In his own opinion the amount of damage done was £ls, leaving the sheep with plaintiff, for the two sheep killed and the twenty injured on the Hth September, Nis Lund deposed that he had seen the killed and injured sheep, and knew the dogs of defendants, and saw one—the black dog—at the hotel before lie went to see the sheep, He had not heard ot any other sheep having been worried in the district,

This concluded the case for the plaintiff. Mr Bunny asked that the damage claimed to have been done on the 31st August should bo struck out.

His Worship said he had already intimated that there was very little evidence to connect the defendants with that date.

Mr Bunny said that the damage done on the 14th September was by the evidence of McLennan, who was a very trustworthy witness, £ls, and with a view to bring the case to a speedy issue he asked the Court to enter judgement for £ls without costs. Of course this was without prejudice. If is Worship, said f|)e Court would, be prepared to enter judgement for

£2O and costs, He could not altogether take Bit Mclennan's value of the damage done as £ls. as the evidence went to show that eight sheep had died on or übout the 14th September, Silas Chisholm, called by Mr Bunny, said by request he went to value the damage done and found two dead and twenty with blood upon from, wounds. He valued the damage done at £ls. Neils Neilson, sworn, said he was was one of the defendants in this case. He ofiered £1 a head for 22 sheep and take the sheep away, or 12s a head and leave them and he declined to take less than £35. His Worship said he saw no reason to alter his decision, the verdict would be £2O and costs. Each party to pay his own witnesses. Smith v. Dorset. Mr Bunny for defendant I —Claim £6 63 3d, balance for wages. John Smith, sworn, said he could not exactly say who engaged him, but Mrs Dorset gave him the work to do, and had paid him from time to time. By Mr Gunny: E[e did not agree to do the work; inside the house for contraot. He claimed day work at the rate of Is 3d per hour. Several witnesses were called and judgment was given for the amount paid into Court, £3 6s 3d, Patrick Cookery v, Wm, Neill.— Claim £ls, value of a horse alleged to be illegally detained. Mr Bunny for plaintiff and Mr Beard for defendant, Roland Jaques, livery stable keeper, deposed that he was, about 12 month's since, in the employ of plaintiff, who was in possession of the mare now sought to be recovered. Some time after the dissolution Neill wanted to purchase the mare but Cockeiy would not sell, but said that Neill could have that horse or any otl}er he liked, Witness told Neill this and bebolieved he took the pony away as he had seen it in Neill's possession. The mare was broken to saddle and harness.

Cross-examined by Mr Beard : He had heard plaintiff talking about the pony Beveral times. He said if he had known about Neill going to start in

business he would have cut its throat before he would have let him have it. He understood it to be a faot that Neill might go and take the pick of his i stable when Cockeiy said so, but he might only have meant a loan, Patrick Cookery, sworn, said he was plaintiff in this case. About .13 months ago he purchased out all Neill's interest in the plant of Neill k Cockery this mare being part of it. Jaques asked witness if he would sell the mare and he said "No." Jaques told him that Neill wanted her and witness said if Neill wanted her he could come and take her or any horse in the stable. He intended by that that Neill might use her until he wanted her. He had applied to Neill for the mare and he had declined to give her up. He valued the mare at £ls. He had had no, personal'communication with Neill. for 'two years, He did not claim any damages for detention. Cross-examined by Mr Beard: He did'not tell Jaques what he meant by saying Neill could get the horse. He expected to get the horse back when he wanted it. He had not made a demand for the horse until three months ago, as he considered he'could get it at any time he wanted it. He did not intimate to anybody that Neill had been a good friend to him, and he would give him a horse at any time. He did not tell Mr .Wage; that Neill could have any horse in his stable. He did not say that it he had known Neill was going to start opposition he would not have given him the mate, Ho had no conversation whatever with Frank Hood, and said nothing to him about the mare, She always went by the name of Neill's pony, Carew Thomas Ellers sworn, said some time back he waited upon Neill at the request of Cookery, and demanded ■ the horse in question, and Neill refused to give it up, He never heard Cockery say that he would not have given Neill the pony if he had known he was going to start in opposition.

This concluded the case for plaintiff. Mr Beard submitted that the case must fall through on the evidence both of Jaques and Cookery, as the evidence of both went to show that the horse was a gift in consideration of the friendly terms upon which thej had worked together for so long a term. The Court said the consideration was purely presumptive on the part of counsel and had not been disclosed in the evidence, Mr Bunny said the application for the horse came from Neill to Cookery who absolutely deolined to sell the horse, but offered (o let defendant have that or any horse in the stable, If any great friendly relation had existed between defendant and plaintiff a third party would not have been called in to make the arrangements for the horse. His Worship intimated to Mr Beard that he was not prepared to admit that the evidence so far showed the horse was a gift to defendant. Mr Beard then called, evidence for the defence, William Neill sworn, said he was defendant in the case. He dissolved partnership with Oockery on last August twelve months. Some time after he had a conversation with Jaques (Mr Bunny objected.to the witness stating what Jaques had said referring to Cookery), and he told him what Cookery had said that he could have any horse in Cookery's stable, He said he did not wa,nt a gift from Cockery, and told Jaques he would give Cockery £lO for it. J aques told him Cockery said he would not take the £lO, but he (witness) could have it for nothing. He went to the paddock and got the pony. By Mr Beard: He was not on speaking terms for some months before the dissolution, It was partly because they were not on speaking terms that the dissolution took place, Witness proposed the dissolution of partnership, the terms of which were agreed upon between them and carried out, Thomas Wagg, sworn, said he had some conversation with Cockery about 12 months ago about the niare and Cookery said if he had known Neill had been going to start he would not have given him the mare, he would have cut her throat first, He was present at a conversation that took place between Jaques and Neill at dinner time, when Neill told Jaques to ask Oockery if he would sell him the pony. At teatime Jaques brought the reply back to Neill that Cockery would not sell the pony, but he could have the pony or the pick of the best horses in the stable, He only had had the one conversation with Cockery, Frank Hood deposed that about 7 or 8 months ago at 1 o'clock on a Sunday morning he had a two hours' conversation with plaintiff about his grievances with Neill, and he said if he had known Neill was going to start in opposition he would rather have taken the horse to the river and cut it's b— throat than have let him have it. He had since spoken to him in the same strain, William Darley gave evidence to the effect that plaintiff had told him that he had given defendant the mare. Walter Rapp gave similar evidence, This concluded the defence. In summing up His Worship said the caso presented many difficulties of a perplexing kind. He could quite understand the plaintiff having used the word " give" without intending to msan all that is usually attached to it. It had been suggested by the plaintiff's counsel that certain terras were meant to be made, but no terms had been expressed at all and he felt bound to give to this word therefore its full meaning. Yet it seemed a remarkable thing that considering the terms they were on of friendship, they had not spoken for so long. That feeling Cockery expressed as to the way Neill had treated him and the kindness shown to his family in the past evidently came from his heart. He could not help thinking that as soon as Neill started opposition if the gift hud, not heen absolutely made Cookery would then have made an immediate demand for the return of the horse, but this had not been done until nearly twelve months after. He considered there had been an absolute patting of the property from the plaintiff to defendant. Verdict for the defendant with costs 20s.