R.M. COURT

Wairarapa Daily Times, Volume XI, Issue 3782, 10 April 1891, Page 2

R.M. COURT

MASTERTON-FRIDAY.

(Before Col. Roberts,' R.M.)

An Impounding Oahb.—Hourigan V.AI'MuMiEN. This was a case brought uudor the Impounding Apt, in which James Hourigan sued Denis M'Mullen for the recovery of an alleged excess rate of £rißs, charged for the trespass of sheep. Mr Pownall appeared lor the plaintiff, and Mr Bda'rd for the defendant. James Hourigan, farmer, living at Manaia, deposed that on the Brd day of April he had 182 sheep impounded by Mr". M-'Mulleh. In order* to release them he had to pay fees amounting to £3 16s 7d, of which the sum of £llßs was trespass iaces a.t 8d per head. He went to release the sheep, and found these rates charged. He paid the'amount, '-but told the poimdkeeper he disputed it. He knew the land on whioh' the' sheep were alleged to have been trespassing, which belonged to Denisi M'Mullen, - The night before the impounding he - put the sheep into an; adjoining paddook belonging to Henry Dixon. The two paddocks were divided by a creek. There was a fence with two wires half way through the paddook, and three wires through the remain* der. The wires were not strained. The creek, whioh was about three feet wide and one foot deep, was filled up with sediment of all kinds. It would not prevent sheep from straying'into M'Mullen's paddook. The fence was not cattle proof. He saw the defendant on the night the Bheep were impounded, and was told when they were impounded. Asked, M'Mullen to knock off the trespass Sf rates,- and he replied : " You pay the full amount, and I'll refund the tre«« pass rates." Got the sheep out next morning by paying £8 16s 7d. He had not received a refund of the trespass rates. A written notice had been Berved by him on the poundkeeper, to the effeot that he intended to lay a complaint against the tresspass charges.'' ' . 1 By Mr Beard : There was tip one else present when M'Mullen offered to refund the trespass rates. Arranged with Dixon to put the sheep in his paddock. The stream was only one boundary. All the other boundaries were substantially fenced. He should think the creek was a sufficient barrier'to sheep crossing. .E. S. Richards, poimdkeeper, sworn. *" stated that under the authority of Mr McMullen 182 sheep were impounded on April Brd, and £l lßs trespass rate charged on the ema authority. The plaintiff paid charges. Hourigan said he was not satisfied and would see into it. Notice of his intention to complain had been served on him by Hourigan. Henry Dixon, examined by Mr Beard, stated tliat Hourigau's sheep were in his paddock by Lis permission. John Judd, settler on the. Manaia, deposed that be knew the properties • referred to, The oreek and the dividing fence together were toot sufficient in his opinion to keep sheep out. The lowest wire was two feet from the ground. 0' This was the case for the plaintiff. Mr Beard, for the delenoe. submitted that it had not been shown that the fence was not a fence within the ■ meaning of the Act. The onus of proyiog that the fence was not legal rested with the complainant. As this had not been shown tho case must tail. Mr Pownall contended that as the fence had not been agreed uppn as a sufficient boundary, by Hourigan, he could not bo expected to prove a negative. The onus of proviug that tho fonee was sufficient rested with the defendant. After considerably argument the Court deoided to hea* the defence. Dennis' MpMulleu, sworn, stated that his property adjoined that of Dixon; A stream divided tho twp properties. Tftepe was, also a fenc9, which was erected by Mr McKillop, himself, and Stone. Ic was agreed upon between himself and Mr MoKiUop to erect this temporary iettyt

to keep bat cattle and horses, and it was not required for sheep. It was also agreed between tnem that should it be required they should improye the fence. ■■■■,.

By Mr Pownall: The fence was not sufficient to keep sheep out. This was the first time to his knowledge sheep had been in Dixon's paddock. He thought his charge for trespass was quite fair. He had offered to refund the charge for trespass on certain conditions.

Farther argument on the legal aspect of the case having taken place between counsel, His Worship announced that he would reserve his decision till Monday.