RESIDENT MAGISTRATE’S COURT.
Friday, June 4. (Before Mr. F. Guinness, R.M.)
GUILD V. KINGSBURY. Mr. O’Reilly said he applied for a rehearing of the case Guild v. Kingsbury, under the provisions of Section 100 of the R. M. Act, which provided that the Magistrate could grant a rehearing at any time at his discretion. Mr. O’Reilly then quoted the grounds on which a new trial could be had in the Supreme Court and the District Court, and showed that under the circumstances of the present case a new trial could be had in either of those Courts. In the R. M. Court the Magistrate was not confined to any particular grounds, but could grant a rehearing at his discretion. It was manifest from the cause of action set out, and the evidence given by the plaintiff that the alleged damage was 3s. per acre on 400 acres. This was expressly stated by the plaint and the evidence. In the evidence it appeared that 112 acres had been paid for in full, so that the most favorable verdict that the Court could give would be for the 400 acres, less 112, that is 288 at 3s. per acre. The plaintiff only claimed damages at 3s. per acre, but on 112 acres he got damages at 6s. per acre, exactly twice what he claimed. The evidence taken was in writing, and the error made by his Worshp was manifest to the very poorest and shallowest comprehension. A gross injustice had been done, and this course was taken on the advice of counsel as the nearest remedy in the first instance to be taken. It was for his Worship to remedy this injustice or not at his discretion. Mr. Branson contended that if Mr. O’Reilly had applied for a rehearing at the time, it might have been granted, but he had not done so ; and instead he had taken an appeal, stated a case for appeal which had not been approved, and disapproved a case' that had been stated by defendant. This application was only brought with a view to. of the appeal case, which, being perfectly rotten, would be unset,, and with' the view of obtaining a new appeal in place of the rotten one. Mr. Branson submitted that the case ought really to be before the Supreme Court, and that the appeal case should be proceeded upon. Every appeal to the Supreme Court should be> transmitted to the Registrar within ten clear days from the delivery of the judgment. Judgment had been delivered on the 22nd of May, and now the ten days had elapsed without the transmission having been made. Knowing this, and knowing that their case was rotten, it was endeavored to wriggle out of the difficulties by soliciting a re-hearing. With regard to the very ingenious argument regarding excessive damages, Mr. O’Reilly forgot that men had been engaged with their teams to do the whole 400 acres, and though Kingsbury Lad nothing to do perhaps with ihese men, plaintiff had everything to do with the matter, and while these men and horses were idle they were drawing money out of Guild’s pocket. He recapitulated his' objection to the re-hearing, adding that it was only owing to the laches of the other side that the present appeal was not gone on with. It was still pending, and if a chance to raise another one were given, his Worship would only be assisting further litigation. Mr. O’Reilly in reply, said his learned friend had not attempted to answer the present application. He went off at a tangent, referring to an appeal pending in the present case. With that appeal the application had nothing to do. The point arising on the appeal would be argued before the Supreme Court. His learned friend’s statement of the law, applicable to that case, was entirely at variance with the true law bearing on the case. He (Mr, O’Reilly) was not going to argue law points before the R. M. Court; it could not entertain them or decide them, and it was a mere loss of time. The point before the Court was this : It was manifest an injustice had been done. Would his Worship remedy that injustice 1 That he had the power to do so he was prepared to show. A rehearing could be applied for at any time. There was one case in the Jurist where it was decided that a rehearing could not be had after an appeal had been heard and dismissed. Judge Williams said that was going too far, but it was clear from the words of the Act that a re-hearing could' be granted at any time. The way was plain if his Worship had the will to remedy a monstrous injustice. His Worship said the grounds for a rehearing were at least novel. The case had been heard on the 22nd of May, an appeal •taken against the judgment, and cases stated for appeal to the Supreme Court, Until that appeal was disposed of, he could do nothing in the matter, and must dismiss the application with costs to the other side. It was an application that ought not to have been made, for there seemed to be no end to the case,,
Mr. O’Reilly promised his Worship that the end would not be seen for the next six moths, for he would go on until he got justice. UNDEFENDED CASES. Mutch v. Mcßae. —Claim L 5 18s. 6d. Mr Ireland for plaintiff. Judgment by default for amount claimed, and costs LI 9s. Garnett v. Fraser and Co. —Claim Ll 5, for goods supplied. Mr. ‘Crisp for plaintiff. Judgment by default for amount claimed,: and costs L2 ss. 9d. HANGING AND SKINNING A DOG. Bell v. Carter. —This wag an action to recover the sum of LlO, being the amount of damages claimed on account of the' defendant destroying a valuable dog, tlm property of the plaintiff Mr. Brans appeared for the plaintiff, Crisp for' the defence. James Corrigan, sworn—l live at Tinwald, and know Mr. Garter. He has not employed me beyond telling me that as some sheep .had been worried, if I caught any dogs doing so, and took the dogs to him, he would give 5s for each animal. I know Mr. Bell. I recollect taking a black retriever dog to Mr. Carter one Monday morning about three weeks ago. I found the dog in Mr. Carter’s paddock on the Sunday evening previous. When I caught the dog I took it home, and tied it up. -1 did not know whose dog it was. The dog was destroyed on Monday
morning at the bach ot Mr. Carter s stable in the presence of the defendant, the groom and myself. The groom hung the dog, by Mr. Carter’s order. By Mr. Crisp—The dog was worrying sheep. He had a sheep down, and would have killed it had I not slopped it. It was about quarterns! eight on Monday morning when I got to Mr. Carter s with the dog. Soon after I got there Mrs. Carter sent me over to Mr. Bell’s. I saw Mr. Bell and told him that Mrs. Carter ■said that the dog was at her house, and if he wanted it he was to come over at once. Mr. Bell said he did not think it was his dog, as he had seen it about during the morning, but it might bo one that had been left in his charge. Mr. Bell said he could not come over, and that we could kill the dog or do what we liked with it. John Charles Bell said he was the plaintiff in the action. I possessed a Newfoundland dog. It was a black dog, and had not a white hair on it. The last time I saw the dog was about seven o’clock on the Sunday night, and was with Mr. Slater, a surveyor, at the time. I did not miss the dog until the lad Corrigan came to my house on the Monday morning. I was at breakfast at the time. He said that Mr. Carter had caught the dog worrying the sheep, and the lad asked me if it was mine. I told him I did not think so, as my dog was about. I said that if I was satisfied the dog had done any damage I would allow it to be killed. Immediately after breakfast I sent a girl for the dog. I then went to Ashburton on some business, and on my return went to Mr. Carter and asked where the dog was, and he said that he had killed it, when I told him I would make him pay for it. He told me I could do my best. I wrote a letter to Mr. Carter, and told him that as he had been seen to skin a dog which was said to be mine, I made a demand for its remains, and he sent the skin over to me, which I recognised as the skin of my dog. The dog could not go through my fence without getting into Mr. Carter’s paddock. I have never lost the, dog for a day, and have never seen him worry any sheep. Mr. Carter told me one day that he had seen the dog there, but that it had not done any damage. I value the dog at LlO ; it was very much attached to my children. By Mr. Crisp—No one has ever cautioned me that the dog was in the habit of worrying sheep. There was a little black dog straying on my premises, and as I could not catch it, and was afraid of it doing some damage, I shot it. The two dogs were down at Mr. Carter’s one morning and they were brought up that day. Ido not know whether Mr. Carter followed these dogs up. The dogs were very likely to be in defendant’s paddock. Mr. Carter said that the dogs were in his paddock, but I do not remember him asking me to shoot them. I did tell him that if he would lend me a gun I would shoot the dog, which did not belong to me. A day or two after I did shoot the strange dog. The dog in dispute belonged to me. I have never offered to make any amends for sheep destroyed, but have told Mr. Carter that if I suspected the dog worrying any sheep I would have shot it, in preference to paying about L2O or L3O for value of sheep. By Mr. Branson—l know the cadet or manager on defendant’s farm, who looks after the sheep and cattle. I had a conversation, after the dog was killed, with the manager, ,?nd asked him if any sheep had been the Sunday nigliA;Or Monday morning, and he replied that he had looked over the fiockT during the morning and had not noticed that they had been disturbed. He sa'd that if they had been disturbed Mr. Carter would have let him know soon enough. By the Bench: Ido not know how many shebp there were in Mr. Carter’s paddock.
Florence Morrison sworn : I am in Mr. Bell’s employment and have been for nine months. The dog in dispute was a very quiet one, and I have never seen it worry any of Mr. Carter’s sheep. It was a dog most domesticated, and was not in the habit of rieandering about. Mr. Bell’s cow used to feed on Mr. Carter’s land, and I used to take the dog to bring up the cow. I never saw the dog on those occasions going after the sheep. When the boy came to Mr. Bell’s on Monday morning he said that Mr. Carter had caught the dog worrying the sheep the night before.
By Mr. Crisp—l am a general servant at Mr. Bell’s, and am generally employed indoors. The dog usually stays inside of a night. The dog was not a cunning animal.
John Carter, deponed—There were about 150 sheep running in my paddcck at the time the dog was shot. On one occasion my groom told me that two dogs were worrying the sheep. I took my gun, and went down to the river bed and saw Mr. Bell’s two dogs chasing sheep. One of them was the one I killed. I tried to get a shot at them, and failing that followed them to plaintiff’s house. I told him that I had caught the dogs amongst my sheep, and that he would either have to keep them tied up or destroyed, as there had been forty-five sheep worried a short time before. On two or three occasions the dog has flew out at my horse. The lad brought the dog to me about 8 o’clock on Monday morning. In consequence of losing so many sheep, about three months ago, I told Corrigan that if he found any dogs worrying or being amongst the sheep, I would give him ss. a-piece for the dogs. When the boy came over on the Monday morning from Mr. Bell’s, he said the plaintiff said that if the dog was his, and he was satisfied it had been killing sheep, he would have i'; destroyed. I killed the dog.
By Mr. Branson —When I saw the dogs in the river bed they were chasing them, wjiich is very injurious to the sheep. I have not seen the dog in question ever chasing my sheep befoye. Complaints have been given to me once or twice by Lawson, my groom, that the sheep have been chased by the dog. It was on the same occasion as when I destroyed the dog. I dii not know that Mrs. Carter had sent over to Mr. Bell on the Monday morning. I thought the dog was Mr- Brader’s but it would not have mattered whose it was, the assault would have been the same. I did not bang the dog, my groom did. When Mr. Bell ssnt me the letter, I gave it to the man who skinned the dog.
George Lawson, sworn—l know the black dog which belonged to Mr. Bell. I have seen the dog chasing the sheep. I skinned the dog, and intended to have kept it. By Mr, Branson—| saw the dog on one Occasion worrying a sheep, and went up |o ft and found dead, I told Mr. Darter. There were two dogs, but Ido pqt know which worried it. I cannot say which dog put the finishing stroke on the sheep.
In giving judgment, t}is Worship said that the only question to be decided was the amount of damages which should be granted. Taxing the evidence of the plaintiff, it was shown that he had been offeitlPSnd refuseti L 5 for the dog, but he omitted to state whether it was prior or subsequent dog acquiring the habit of chasing shtfep, which fact had been attested by three witnesses. It was •well known that any dog which was in the habit of worrying sheep was valueless. It had not been shown whether the offer for the dog had been made before or after the complaints which had been made of the tig’s misconduct. There was no doubt at the action of the defendant in the matter was wrong in law. but as the dog had deteriorated in value through its bad propensities, he thought justice could be served by giving judgment for LI damages, and L2 6s. costs.
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Ashburton Guardian, Ashburton Guardian, Volume 1, Issue 109, 5 June 1880
RESIDENT MAGISTRATE’S COURT. Ashburton Guardian, Volume 1, Issue 109, 5 June 1880
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