DISTRICT COURT HAMILTON.

Waikato Times, Volume XX, Issue 1671, 22 March 1883, Page 3

DISTRICT COURT HAMILTON.

Judge Smith.)

.. Damage to » Nursery., < Geo.^Maslo*t tvF. GLujdin.— This "was an actioH'tb recover thfrßtiin <if i4s<los,the amount'of'damage'alleged to Htfv6» been' causen^tiV plaintiff* garden* and ilmitisery by defendant's cow.: The defence was 1 a denial of the' ownership'of the cOw. -Mr 1 O'Neill'apiiearectfor plaintiff, attd Mr T.> GresHtttn'Tof defendant;l The'following jury was emianelled to try the case s— J. J. Barugh (foremau)j G. I F. 'Allen, W. Carson, and J, Caasidy. ' ' ' ' " " Mr O'Neill in opening the case t said defendant's 1 possession' 6f ■ the''c'ovf was. practically admitted,'' so tliat 'tl^e only duty devolving upon the jury' •Was 'to determine whether or not. any damage had l/eeri Sustained KyfWe plaintiff. 'He called , , George Mason, the plaintiff, who'de- 1 posed that he was a market gardener'and ■ nurseryman, carrying on his' business at Claudfelaiids, Hamilton. He had been engaged in ' the business'all his I 'life. Knew a black and white cow belonging to defendant. She was in, his nurserymen, the 7th, Bth, 10th, llthand 12thSeptjem-' ber last. Complained to .defendant about, the cow on the 7th, cattle having been in, the garden prior to that date. Told 'de-i fendant he was tired of( turning the <cow, out, and would*, not }l do „ so any more. Defendant sent' his man, Green, to take ■ the cow • away. ; The i ( cow had damaged English, forest trees, pines, strawberry' beds, fruit trees and' vegetable, and he estimated ,the, damage at £45 10s. The labels were knocked off thousands of young fruit trees, which, in consequence* cquld not) be, sold as named varieties, but had to be put into a miscellaneous lot. The fence round the property was half wire. Along the road, however, the fence was composed of wattling, about 4 feet 6 inches high. Defendant's cow was the firs>t to break through the fence ; it had had always kept cattle out before.' Defendant's cow was kapwn as a jumper. Witness saw her jjrfip the nursery gate, which was 4 feet^F inches high. Had to repair the fences continually. In cross-examination, witness said he considered the' cow in question did the damage, because she always led the other beasts. It was quite possible for one cow to damage 3000 young fruit trees in a couple of days if she were hungry. Did not seothe,cow damage a hundred, but there were 3000 in the nursery, and they were all damaged., Remembered meeting Mr Carson, who laughed at the idea of witness sueing for bucli a large amount. Did not use the words "I do not bring the action." Remember Coleman asking for the amount of his meat account about the middle of September, but did not remember speaking about the present action. May have said cattle had been in his place, and had done damage to the extent of £5, but the remark applied to cattle which bi okein subsequent to the days on which the damage was done by Mr Gaudm*s cow. Did not tell Coleman he would pay him if he succeeded in " knocking" anything out of Gaudin. Impounded a cow belonging to Mr JMaberly, and one belonging to Mr Mulbons on the 17th September. There were two otlieie, but lie could not get them. Ho churned £ 1 damages from each, but subsequently took hnlf that amount. On the! 2th September he instructed his solicitor to Avrite to Mr Gaudin and Mr Le Quesne, claiming the sum ■of £43 10s from each. Mr Le Quesne had a calf that followed Gaudin's cow, but it did not do so much damage as the latter. On one day, after the 7th, six or sovon beasts followed them into the nursery,,but> the cow and calf, had frequently been in before., The wattle fence was put up the winter before last, and was perfectly good until defendant's cow broke it down. Valued the stock in the nursery in September at £200. , Geo. Reid, settler, CJaudelands, gave evidence generally corroborative ot Mason's testimony. Had seen the cow in the nurseiy on the 10th and 11th. Had had occasion to drive her to the pound once or twice himself, but had given her up to Mr Gaudin's man, Green. Had inspected the g.uden, &c, and estimated the damage at £15. Was a practical man, ,and, had in his youth been employed for somcycaisin a nursery. Frederic Gaudin, hotelkeoper, and defendant in this action, sworn, said he had had a black and white cow in his possession, but a fortnight or so before the 12th September he ordcied his man to take her back to Capt. Steele, from whom he obtained her. He knew the cow to be a jumper. Would swear that it was not on the 11th September that he first told his man to take^the cow back. She came back once or twice, and he might have sent! her to Steele's after the 12th. Had the cow in his possession for three months and milked her. Did not think she was in his possession on the 7th Sep-i tember. The cow,, was lent to him by Capt. Steele. Would not swear the cow was not in his possession on the 7th or Bth, but she was riot on the 10th or 11th. He distinctly .denied.'that Mason ever spoke to him. Did not, on receipt of the lawyer's letter, send Green to take the cow out of Mason's. Might have done so on thu 12th, if the cow had got back. Had notice on the 12th that the cow had trespassed that day. The cow was not in his possession, though he might have sent Green. The witness was cross-examincl at some length, but he adhered gcneially to his former statements. Thomas Green, labourer, deposed that he was in defendant's employment between May and Christmas of last year. His duty was to look after the cows, pigs, &c, and do other work. He milked a black and white cow, which he believed belonged to defendant. Remembered Mr Gaudin receiving a lawyer's letter about the mischief the cow had done, but could not tell the date. Defendant sent him at once to Mason's, and he got the cow out. Previous to that date the cow was not out of defendant's possession. Took 1 the cow out of Mason's time after time. Five days out of six she was certain to be in the nursery. No fence would stop her. On oue or two occasions he found other cattle with her, but she always led. She had, broken the fence in front of his eyes. Remembered taking the cow back to Capt. Steele's.' This would be,,he believed, after the receipt of the lawyer's letter by defendant. He took her .to Steele's a second time, and had not seen her since. A few days elapsed between the first and second time of taking the cow to Steele's and in the meantime she again broke 1 into Mason's. • This closed the case for the plaintiff. , For the defence Mr Gresham called, < John Coleman, hotelkeeper, Te Aroha, and late of Hamilton, who deposed that at about 6 a.m.'on the 9th of September, last. Jt ras mustering cattle, and had occasiojfl^pass Mason's nursery, out of, wm^Hiedrpve five or six young cattle.' There was a clean .break in the ' fence, through which he rode. Had known the fence before, and did not think Tit a sufficient fence to keep^g^t cattle, Had noticed; it out of order three or four months previous to that time. Defen-; dant's cow was not among the cattle he, drove ont. , About the middle of .Sep-i tember asked Mason for payment of af small account. Plaintiff answered 'in! effect tjiat he "v'onld, 1 pay him. if h,e',,'suc-t ceeded in " knocking" anything., out ■ of Gaudin, whom he had billed for £5. '' '„' In, ( cross-examination witness eaid heconld not bring anybody to corroborate 1' 1 whatjfyefoad,stated s > s j u'im'-i.M / - l\ $$o. tMa,berty, pchpfjl.teaohety residing, at u jla;h#ton, Easfc depqse.dj4ibalbi.on tbe r17$b, September [ plaintiffi)impoU»ded., t», cow of his, together with one .belonging to, Mr Mullions. Jn UBpin.panjy.f wjtUiithe latte_r,,,w; jtness,, v,sted.f,th.<* jßur^tiy,i but only made a cursory examipatjpAl«fl»!&t coimWorm'^o:H[deaw^f''thw'"ainiOiiirt"lJf <? , dainnge) done* l(l,Tbe iifences-i-wero xdelapirfi dai^d'andhotsufflbiehb^kefepcattlettutlJ 1' -, gelf as a gentlenifli^^s^ni^l g^lfon

East, deposed that he. weulj , in company witti the last witnessto Mason's nursery. He made an examination of the place, and ftiougHt£S3 wOuUpcfevbr all'. the, damage' Iv cross-examination, witness said he wad competent -to value the damage, but Avhen pressed, admitted that he had not 'taken it into consideration "the 1 loss"of 'vegetables and strawbprry plants, the 'damage done to fruit trees through the loss of labels, <; or- the loss occasioned by 'da'ttle trampling the ibeds of seedlings^ He admitted -that he did not know the names of any of • the pines read out to him. „..). s'. r i John Ellison, settler, Kirikiriroa, was called to prove that the nursery; 'fence was in a bad state and not sufficient to turn 'cattle. n.\<. << Phillip LeQucane, storekeeper, Hamilton East, was called, and Mr Gresham was proceeding to ask him whether he received a lawyer's letter claiming damages, when i . Mr O'Neill objected, as the matter had nothing to do with the present action. " His Honour upheld the objection. This closed the case for the defence.' ' Mr Gresham addressed the jury, calling their attention^ to the lehgth of time which had been allowed to elapse before legal! proceedings were taken. He also complained that the plaintiff had only given defendant the bare notice reqxiired byl aw. He briefly reviewed the evidence, contending that the damage sustained by plaintiff had been over-estima-ted, and that,,even then, the defendant's :cow had only caused' a small portion. He referred to the conditiou of the fence, which was altogether inefficient. Mr O'Neill, j j'after 'defending the plaintiff's action in bringing the case as BOdn' ' as ' 'he was in a position to do so, said His Honour would tell the jury that by the common law of England 'it was not necessary to fence cattle out, but to fence them in. He would also inform them that the party sustaining a loss through cattle tiespassing could elect to sue one, two, or all of the co-tiespjsscrs at his option. The learned counsel then reiterated the facts of the case as disclosed by plaintiff, claiming that the only reliable testimony on the question of damage was that of the plaintiff, and the' witness Reed, none of the others knowing anything about the matter. His Honour, in summing up, asked the jury to dismiss from their minds entiiely the question of fencing. Except in the case of cattle being driven along a public road, all animals found on. private land weie trespassing, and the first named must be removed within a reasonable time. The case being thus simplified, What the jury had to consider was, whether the cow was in the defendant's possession, and if so, ' what was the l amount of the damage done. It Was for them to judge of the . credibility of the testimony ottered. , , , The jury, after a brief adjournment, found for the plaintiff, damages, £8. They thought the case should have been brought on earlier, when they would have had a better opportuity of forming an estimate of the damage. On the application of Mr O'Neill, His Houour granted costs on the R.M. Court scale. The Coiut then rose.