R.M. COURT, HAMILTON. The Newcastle Rum Case. Yesterday.—(Before Capt. Steele and Mr S. T. Seddon. J.P.)

Waikato Times, Volume XIX, Issue 1643, 16 January 1883, Page 2

R.M. COURT, HAMILTON. The Newcastle Rum Case. Yesterday.— (Before Capt. Steele and Mr S. T. Seddon. J.P.)

Fitzgerald v,, Shepherd.— Claim for £6 2s 6d, amount of poundage ~feeVf" f ex-” penses of damages sustained through the wrongful impounding of a cow by defendant, who is ranger of the Newcastle run. The case was heard on the 13th of December before the Resident Magistrate and Mr J. B. Whyte, J.P., when judgment was recorded for defendant without costs. Application for a reheariug was made on the 20th December, and granted.— Mr Hay and Mr O'Neill appeared for the plaintiff, and defendant conducted his own ease. ../, , Mr Hay, in opening the case, said it was one in which the defendant was charged with wronfnlly impounding a red and white cow. The case had been heard in the same Court some time before, and was to some extent gone into, but not &o fully as was now intended. Two issues had beeu placed before the Court ; one .was the legal aspect of the case as affecting a large" body of ratepayers ; and the other was thu case upon its own merits. First, as to the legal aspect of the case, the right of defendant to impound. It appeared that the board for some time, without the sanction of law, had let the Newcastle run, and authorised people to receive fees for the right of depasturing cattle, and to pound such as were not registered.' It was shown at the previous hearing that defendant had leased the run from the defendant for a certain sum. Now. the Land Act described a run as laud leased for depasturing purposes by the Land Board, so that the board, in leasiug tlie Newcastle run, weie cleat ly in the wrong. The Act lays down that the land shall be dealt with by the Commissioner, and no other person had the authority to do so. The 17th section of the Act defines the Commissioner's duties, and it is laid down that the ranger is a person duly appointed by the Governor. It was not attempted, nor would it now be attempted, to be shown that defendant held his appointment from the Governor, but irom the secretary to the board. But there was no minute in the board's book respecting the appointment. , The only reference to the defendant was in the minutes of a meeting held on 27th September, when it was notified, that his tender for the lease of the run was accepted. By the 37th section of the Highways Act the board were empowered • to^ appoint a person to impound cattle off the public roads, but no such authority had ever been given Shepherd. At the previous i hearing some of the members of the board were examined, and the chairman was prepared to swear that Shepherd was empowered to impound, but in none of the minutes was any reference to this to be found. Another aspect ot the question was its importance to the ratepayers. Why waa the 57th clause, put into the Highways Act? The Legislature, no doubt, had in view the safety of the public. Cattle and horses, it was well known, were fond of straying W the : roads which they preferred, for the pnrj pose of resting, to a grass paddock, and for the purpose of avoiding accident to lite and limb, the clause veterred to was passed. But did the board carry out the provisions of the clause ? He said, no. They simply authorised Shepherd to allow people to do the very thing which the Act precluded their doing, and the board were thereby rendering themselves liable for any damage or injury which any ratepayer might sustain. 'He would, .like to know where the board found authority for the course they had pxirsued. If there existed any such authority the other boards in the district should avail themselves of what promised to ,be an excellent source of .revenue. If the, law had sanctioned any such proceedings there could be little doubt that all other boards would have followed. He contended that the board had.no right what- , ever to lease or deal with the run in any way. He would add one word more in reference te the legal aspect of the case. •In the previous hearing he objected to a certain part of the evidence, the Court, receiving as proof of the exact position, of * the road on which the cow, was taken from, . the testimony of a Maori boy " and the defendant. He now found that the road which had been sworn to was not a road at all, never having been taken under the Act. He 'would now turn to the merits of the case, which were shortly as follows -.— Fitzgerald, without making any admissions, was induced to pay, or give a promise to pay, the depasturing fees (they liad since been paid). Subsequently Shepherd saw a cow on the Whatawhata flat, and (took her ,to*thel pound ; Fitzgerald had to go down to the pound ami pay the fee, 'putting himselt to great inconvenience in the matter. They would be able to prove that the cow was entered and described in the register. He would ask their Worships to look at the cow for themselves and say whether jit j was ■*a j 'red ' and ( white "or a yellow and wliite bea&t, upon this /would hang to a great extent the nature of the, case. Defendant called the cow yellow and white, -and I . plaintiff described it as red and,, white. , (The, Court here ad-journedfor/Wfew'-irimutes to view the cow in the Court yard), Mr Hay, on resuming, said thoir'Woitehips.jhaving seen the cow, would be able to judge whether the witnesses .were telling; the ; truth or v npt., He might be colour blind, but he certaitily thought' himself tliat the cow was red and wniteJ.: With! [regard to tjb£ .road, he would? f bring u a j witness .whose, testimony was unimpeachable, who was pot interested to "rebut the ' defendant's statements. • They 'had only i one,witness »tb two^land heimglvfc have,; to, ask the defendant a question concerning a certain case, .in which, he. , .was concerned; which IVaa to Wsehf.to; V MgHeP fclSunal. , If, they proveS'wiat l tbe cow had been registered and afterwards impounded, they had a right to get damages. But that hvdi noft alii' theyvgougbt,' , wished to set the matter; in' djopute bcjrtvjeen the board and the ratepayers at rest. Though this might seem like jjto kill the goose ., that Jaid,i,the golden;^egg, his learaedjtfriend>&iid .hjmgelf t\yv<iVßt \yv<iVB ffe?' rous 'Of peeing th^ l matter(,|iettle,d, ( jtrusifcing to find geesQ equally as,; profitajhle jib: some \uMarj;in;|^|^gei'al i t| J f^amined by Mr otNeillj"dep^,that^ fwaßf waB a farmer residing at Whatawhata. Remembered .went to}tnetNewcastie'.Wonyd|\ /He -met herd asked him what he was ' £fter, and hVjaaicl a'beast that 'was 'nr_,thof' pound. jSheph^d '"waJPjjao - beaisft rbrande^t^iwl^ligfflg'^rWi^B^s in. the .pyttndrj^Pft^kfa^^tte'' araSttup and!

charged mtlpiwronMuTimimpoiincling a cowflud the* pl?iiiitißsblia(t] to show how was done uJjlawfullV. ' jconramieds|| Registered the :^attl4 the cow^amonglithem. William jßailey alsistiedmim hojnf with the cow. jjpnjjne GthJTqv'eqibe^Pheppard saw him labo^re^itfeiiDg^t^^ttle, and he agreed to pay him orFffJcMfanuary. (Book produced showed four red and white cows registered.) Tiie cow in question was one of those registered. The money was paid on January Ist, and gofc receipt (produced.) He thought £1 a fair and reasonable charge for himself and horse in getting the cow. Also claimed £5 for wrongful impounding. Cross-examined : Did not see the cow taken to the pound. , Saw. r the ment of ranger adveftised^ana "also a notice that all cattle must be'accuratcly ..described. Had done so. His brand F "was itbt re^iVd'iTHlffiiltW.*^^^^ ' , „ Mi' t Seddon : The cattle.inspector ought •to bejin (johrt. It was/the A d\ity of Mr Fitzgerald to register his brand. * "^AlexandelKPhomson 1 Gollanv^a ■ farmer, residing at Whatawhjita, deposed : On the morning of the 13th November he was on the Whatawhata Flat. Saw the cow produced, t oa that .morning being driven aWay'Jjy Mj* Slie^h^rd v .f He took it from a"place about' five chains from the main road., t Did not know to whom the' land belonged. | #Ae)v|tne fcbjfe frellj and could not make any mistake. Mr Shepherd drove the , cow in the direction of, Ngaruawahia. * The cow was light red and white in colour. ; • , „ * Cross-examined : When I first saw defendant the cattle were standing, and would not,swear, that Shepherd had not driven them there. Re-examined : Could not say how many cattle were there. ' ' ( George Little, poundkeeper of the Newcastle pound, ; deposed : -Had seen the cow produced!' To the best of his belief it was the same cow impounded by Mr Shepherd on the 13tb November. He considered the cow was yellow and white, .but at that timeshe had not lost her winter, coat., The brand, ,F, was not so distinct, and he took' it for E. : The brand was Vhe now saw. Believed the colour -ttas yellow and white, thongli some people might call her red and white. Cross-examined : The cow was in the pound a couple ot hours. She is in better condition now, and has a smopther coat than at that time. ( ' To the Court : Some conversation occurred between Mr Fitzgerald and myself when the cow was taken out, but I cannot quite remember what it was all about. He said he had registered the cow. William Bailey, residing at Whatawhata, sworn, depobed : Remembered the 1 3th November. Was at the pound near Ngaxuawahia. i The beast now in the Court yard was in the, pound that morning.' ,He afterwards .overtopk Mr Fitzgerald on the road home, and gave him a hand' to drive it. ■It was a red and white cow. branded Fon the right, and Won the left rump. '■'' i Alex. Crawford, a farmer residing at Whatawhatvsaw the cow? 'produced on the morning of the 1 3th November. ( Saw Shepherd driving cattle, and he told him he was taking some he had no right to take. Saw the cow in question among them. Shepherd was a. little way off the road. He Vould call the cow light red and white. > * - Cross-examined : Wjien I first saw defendant he was off the road, about six or seven chains. Did not see yon drive the cattle 'there. ' ' ' ' This was the case for the plaintiff. For, the defence, Mr Shepherd,, called James Wells, secretary to the Newcastle Road Board,, deposed : Defendant was ranger to the board* The duties of the ranger were to collect fees, and to impound any cattle not registered. Cattle were to be impounded off the roads. (Witness read the minute accepting Shepherd's tender for leasing the run; ) • Notified the ranger that he was authorised to impound cattle. Everything was done with; the sanction of the board. Cross-examined by Mr Hay : There is nothing in" the minutes . appointing a ranger, but Mr> Shepherd's, tender was accepted for the lease of the run. I believe the board has power to appoint a ranger, under the Highways Act. (Witness read the o7th clause of the act, giving power to appoint a person to pound cattle.) Such a person was generally called a ,ranger. 1 ( , consider this clause ,the authority , for, .appointing a ranger. There is nothing in the minutes giving, Mr Shepherd authority to' impound cattle off roads. The minute book is supposed <-o,be,a correct, record of the procticdingsof the board. ' It is a correct record to the best of my belief. '• " ' ' To the Court : Information to the tenderers for the run would be given verbally. The name& of proposers' and seconders are not given' in the minutes. Arthur, Dawson, chairman of the Newcastle Road Board 1 : Defendant was ranger, to, the board, but the only minute referring t to the 'appointment' was that "concerning* the acceptance *bt his tender iorlth'e lease of 'the^Mn)/fXho notice in The Wiukato Timct, appointing defendant ranger was inserted by the secretary at the instance of the board. The ranger was to impound' all unregistered cattle. ■ < Cross-examined : The board's authority to appoint a ranger is contained in the 57th section of the Highways Act. The board appointed Mr, Shepherd to impound. I know that clause 3b' of the act requires that all the proceedings of the board shall be entered in a minutd boob. This proceeding* is not in the minutes, bu* tlia.t must be an omission on the secretary's part. To the Court : I believe the board did pass a resolution appointing Shepherd ranger. 'I. as' chairman of the board, accepted Shepherd's responsibility. William Shepherd, a member of the Newcastle Road Board, sworn,, deposed. : Defendant was ranger to the board? His His, tender,, for the, lease, of the run was ' accepted oti ! the 1 27th September. Understood that the successful tenderer was' to act as rauger under certain conditions, He was authorised to impound cattle. At the board meeting, it was agreed that the defendant should act asi ranger, and impound cattle off the round. Could not say why a minute to that effect was aiot entered in the book. The defendant's faction as ganger hjid- never Ixjen in V/ue'stum so far as he «ae\vJ !J ' 1 "'"Cross-exainined^y^rrO'Neill. * 1 caiinot say what authority the board has fort appointing aranger'.t. It has always been done. Ido not think any member of the board objected to the proceedings regarding the appointment of a ranger. Do not r remember Rearing Mr "Washer saying that they should'not lease the run until we had a legal opinion. I believe Mr Washer moved that the run be i done away with, and I seconded, but the chairman said they would have to carry .'dtftiho frjsha's of j6hkfrt^aysrCexpressed at two public meetings. Mr Washer did not object after that. The ranger wa& authorised to impound cattle off the' roads,; (but I cannot say,, whq moved and seconded the motion, or at' what meeting it was passed. I believe jt was at the meeting on the 27th September. < I do not think there was any objection to the motion. ,Mr Washer was at,the meeting.. T was not' present 'aVfcbe* first Hearing V 6f' „t his case. , I .did whether we, had the authority' to appoint a ranger .' iWe iimply {follpwgd/tjhg floard'^ practice.. | I believe the minute book is a correct re.cord.of the^eethig. I pannof spy ,tWI 'the niotiod'lijaVe referria was I left out. I > knew t ndthui|Lof f claj]gejs'Z of toe jHighr, Act beroresMinis'* case* was brouglit' on. The question of } impounding 6ff>theV 'r^swaVn^'tUotfgli^oP Sftafr the W IM^^f^hiime-.f/K^'bl^lh'tup the ' w * "'M** 1 mm \ H ie£^"

; cattle in the cut^g.^j l Atn^^^H|ffl|| was a ball, which Jie^intenmHHKiifijpl pound. , H&drove ytheni on tpjjge^lat. <■ his registration book/^Was {Some little time inusterine the cattle. He took out the ttfrlgl&Hf c<tsle*^n(I f |<lr9W/'tliem to the pound. One of these was plaintiff's cow. • Oii 'reftftbfng* hi met plaintiff, and he asked witness if any. of his cattle were in' the pound. Witness sjaid tlifere were not. <t Also showed* himtjispqf/the cattle impounded. -Fitzgerald said he was going to Ngarnawahia-,in r any case, and would call at the pound. On the following day he that plaintifi's cow W becn-iiotinded^-ljever' refeeived* any\jlaim for compWation-of ftttmsge until after he Was summoned. Had he knowu w the- cow 3^va«^Fitzgerald{s,^he woulil not' Have poundeVr it. Asked Mr CrawforiMhtf sa"me? iKorning-, -Whether he knew the cow, and he replied that he did not.v So considered'the pow^ t^,flpt telong to the place. Gave a description of the cattle impounded'tb the poundpeeper. o .TlieJt.cow^iu_te Jt .cow^iu_t J iues.tjonhe described as yellow andT'wlutel T Mr*Pit^eralcl that he wanted a'fiiU and I 'complete description of the cattle and the brands, and he 'supposed- be got it. 1 ' ' • -1 lJ \ *' Cross-examined : I have seen the*co\v in the Courtyard, • and believe it to be the one I, took ,to, the pound. I impounded the cow because ifc was uofc registered and w,as straying on the road. I cannot produce a written authority to impound off the, roads in the Newcastle district. ' I will swear to the best of y niy knowledge and* Relief Fitzgerald did not register this cow witli me. I say she is a yellow and white cow. > Plaintiff told me his cattle were branded F. , . The brand appeared to be E oii the day I impounded , her. I, have .lioticed $he braiid on the rest of 'Fitzgerald's v t»ttle. It looks like an Ton sdme of thenO'l took ..the cow. about, lQQ;yai:ds frpjn .the Whatawhata cuttiug. „ .They were walking along the road. I took them off the formed road. (Witiiess marked on plan the spot wheve, he "found, Xl thee cattle. J I can swear that I took the cattle off a road. v! ~| n William Bishop, a Maori boy, £examinecl through ' an , inte'epreter, said he assisted Shepherd to drive some catjile to the pound on the" 13th7 The cow 1 in the yard was among theni. They were found a short Stance from ,the schoolhouse, and perhaps 50 yards from the cutting, i Thejcattle were taken iiL $he direction of the Waipa, then back tp road,, and; on to, Ngaruawahia. ) ."Remembered meeting Crawford on 'the Ngaruawahia side of the creek. Took the cow from the road (near tlie dntting. Cross-examined : While we were examininc; them 'the cattle got off the p'oad. The cow was on the road when Shepherd found it.' 1 <.SHe>was\not registfei'cd. The cattle were not drry^n, but strayed towards the river. I 'never had any conversation with , Shepherd on this case. I am paid 10s for every d,ay I come, here. , I received 5s a day .wlien I assisted "to ,d|ive cattle. I' think this is, ( tUo , harder work. I cannot describe tlie brands' on the cow, I did not examine them. I did not know whose cow it was. If Gollan said' the cow was taken from the Maori house, he was telling a lie. ' > • - Peter Iwersen, sworn, deposed : That on Thursday last 'he was asked by, defendant and Mr Dawson to gd downs and measure.tlie, distaiice -of jtl\e jp r lac^ n }y hex-e the cow stood >,frQin u tj)e culvert. The distance was o*4 chains. The cutting was about five chains long. The spot pointed out was on a street. i "'i t This was all the evidence for the defence. ■ u .- ; .| . „ „|i,, Permission was, grafted to the defence to call rebutting evidence. William Washer, a member of the Newcastle Road Board, deposed : At a meeting on the 7th August, ISS2, thequestiouoftbe cattle fees was brought up. The board wished to call for tenders for leasiug^the run, but he wished to get a legal opinion before doing so. Mr Shepherd was there, and could have heard him if lie wished. No one seconded him. K. C. Shepherd's tender was accepted, he 'a'sketlthat Shepherd should be provided with a plan of the district, so as to show where the roads were. At no meeting, so far as he knew, was a resolution, authorising the ranger to pound cattle off the roads, passed. He had never heard anything said about the roads at the board. He would have remembered it. Clause 57 of the Highways Act,wa^ never brought up. Heaj-d Mr Dawson say he as chairman would not be responsible for Shepherd's proceedings. Tt had been decided at a meeting of the board that Shepherd, was, not a servant of the board at all. To the Court : It was usual to appoint a ranger,' and not to call for tenders. I had doubts about the legality, of collecting the fees. I did not agree jto the calling for tenders. . , f , : T. G. Sandes, authorised snjrveyor, sworn, produced a correct .plan of locality. The distance 1 from:* the" spot pointed out by Shepherd;- -to,; the ( - Maori hut was 16 or 17 nhuins, and to the place \v here (tollan said he saw the cattle, 13 or 14 chains. Defeudaut addressed the Court, contending that the plaintiff had'fjtiled to show that the cattle were not taken off a road.' He also complained that lie. had •got no bill of particulars delivered to him, and so was debarred from offering payment. ' ' Mr Hay addressed the Court for the plaintiff, commenting on' the difference between the evidence given by defendant and ,the' Maori boy on a previous' occasion aluVon'this. " Defendant had complained that he had not received a bill, but this was not a case of contract 1 but a' wrong. He wished the Court to decide upon the legal aspect of the case, but if they could not do that, then there was>a case' on the - merits. <■<„' '/ The Bench, after retiring. ,fqr about half-au-honr, gave judgment V for the plaintiif, awarding him 2a Od, the amount of the poundage fee, 10s for the, expenses) iv connection with driving the cow homo, and £l for bringing the animal to Court. No other costs would be allowed,* j. ■ Mr Hay applied i for the coab^E^the rehearing, which, accordingtJ^^H^i, followed the. judgment. The Bench granted thesdfl^^^^^Hbe ■* decision of the Resident M&gH^^^HS; !Mr Hay' asked ' the ' ItencTHßpHpey would give an expression 'of opmiiral as ■regarded the' public aspect .of the 1 casev' • The Bench declined to do this, but stated that whatever .powers sth&rboard possessed, they were /clearlyi responsible for Mr Shepherd's actions as ranger.

A Property Tax "notice*"Appears in another pUcc. The Whatawhata annual races wfll be held on the 14th February. Fuller information t ywill shortly.be published. )j r :f ,/ "* j A meeting of>, the acting mejifbers of (he Comus Dramatic Club is called for this ,evening T at 7.30 o;clock, at -theu koyal Hotel, s-Hamilton.'- ■•The mtembers^ kr&- particularly requested to a^ond.. , „ f , ,Jt is, notified th^trjtjbe valuation lilt for "t%,Porpugh of Hamilion 'for' inspection at the Borough'Council'chambers. All objections thereto must be left at the [ Reii'dcnt Alaeisi tratc's Court, Hanliltoßf, jbn,dji, before the 15th February ne^tv a^dpesse^^q Akind-hrabted woman moved to pity at the spectacle of a poor man asking for < al. m < 3M°f ®* Pfi dooi >'/,r nn l lbs4' PA*,* 0 him .mt>!s9i?ejcqld ) vM«%if^%M replies, haughtily letting them fall on "the pave'jnentfWhiclislfeJh'adl jdWi^i^do not milking notiedtthe.cow's'tafl'toifiis ]eg, > co^fpastjireon hi&tyckfflii SJOftx' a