RESIDENT MAGISTRATES COURT, TOKOUAIUIKO.

Bruce Herald, Volume III, Issue 53, 13 April 1865, Page 4

RESIDENT MAGISTRATES COURT, TOKOUAIUIKO.

(Before John Dewe, Esq., 11.M.,) March 23. Tweed v. Noble. — As this case has excited considerable iaterest in the District, we give a full report of the ovidjnce, and judgment. The crowded state of our columns i'ortne last two weeks has prevented our doing this earlier. The action was brought to recover £0 as value of a calf in defendant's possession. Mr Mrcgregor appeared for the plamtiii". Mr Pirn for the defendant. Mathew Tweed said that in January, 1863 he bought four cattle from Mr J. L. Gillies, and turned them out on the run at Fortiiication. They were branded, and one heifer between 1 and 2 years old, was branded P on the near (left) rump. Two months ago he had seen the same beast at Fortification, and about a month ago he saw her in Mr Poppelwell's yard with another brand D.Gr. upside down, the D boing over the P. He coupled hur to another cow out she died, and he cut off the piece of hide with the brands on (Hide produced). Acting on what he heard he showed Noble the piece of hide, and asked him to give up the calf of the cow to which the hide belonged. He said that he would give up the calf — that Jack M'Kenxie had given the mother to Gardyne, and the calf to him (Noble). This was on the 23rd of February. On the 2fth he again saw Noble who said he would stick to the calf. He had seen the calf when it was about three months old. Cross-examined. — The color of the Heifer was white with bine spots through the white. Mr Gillies had bought the cattle from Mr Plunket. There was not a blue strawberry heifer that he remembered. By the Court. — He had bought a white cow, a white calf with red neck and the white heifer with blue spots. Three months after turning them out he saw the heifer to know it, and again six or eight months after he saw her but did not know her, as she had another and blotched brand which did not seem as if it had been long on. J. L. G-illies iiad bougnt all Plunket's cattle branded and unbranded on or about the 2Jbh January, 18t>3. He afterwards sold Tweed a white cow, caif, and strawberry heifer. He was well acquainted with brands, and he had no hesitation in saying that of the brands on the hide produced the P was the first put on. He had examined it with a microscope, and the scales of the i). overlaped the P. Cross examined. — He had had not sold a blue strawbeny. There were two blue strawberry heifers iv those delivered to him personally, but he had not sold one of them to Tweed. William Popplewell remembered a heifer being brought into* hi 3 yard about a month ago which ne had recognized as one of those sold to Air Gilies by Plunket. Ha had delivered it in Mr Giliies's paddock from which it afterwards broke out. He (Mr Popplewell) believed thy disputed heifer to have been branded P when about ssven months old. He had known tiie beast well. He believed tiiiit the P on the hide produced was the iirst brand put on it. He had many years experience in brands. Cross-examined. — It was aboub 3 months i after she ong/it to have bean delivered that

she broke out of the paddock. The first time he had seen the brabd JUG was when she was brought into his yard. ' By the Court. — He had not delivered the cattle to Tweed till about b months alter receiving instructions to do so. He had frequently seen her about 1< ortification. The mother of the heifer was delivered he believed to Mr Tweed after the bulk of the cattle. Ewen M '.Lachian. — knew the heifer and had branded it when a calf at its mother's side. Cross-examined. — He had seen it three times since before seeing it in Mr Poj.pieweil s yard. The brand on the hide, the P was very little Jaiger than the brand itself. The heuer would be about three years old | this tah ing. ]idward Martin had many years experience in brands. He was quite certain tlie Pon 1 the hide was the first put on. Cross-examined. — A brand would grow as the toast did. He did not think one brand ! put on top of another would sap. | David Gardyne knew JNoble, but never saw • him come to take away a calf from witness. '> Jack M 'lien zie gave witness a heiier in Liecember, 18<j3. M'Kenzie did not show him the heiier, but he described her as -white, with blue spots. Three or tour months alter he saw her on Cooks ridges with the brand JjG upside down on near rump. iNoble told him that he had brought in the heii'or, and was to have the hist can lor his trouble. He afterwards sent word to witness that he had taken the calf. M'Kenzie gave him this heifer for taking charge of some cattle. He had frequently seen tlie heifer, but never saw any brand except the i)<jr on her. Cross-examined. — JS o bits had never pointed 1 out the heifer to him. He had recognized i her by description aud brand. /{' By the Court. — Khe was white with black | ears and blue spotted neck. Is'ine months j after iirst seeing her he saw her again. The next time he say/ hur she was on the middle ridge with a calf beside her. This closed the piaintill's case. For the defence Mr Pirn culled John Noble — who said he knew Jack M'Kenzie and had told him he knew where a white cow that M'Konzie had lost was. She J had a calf by her side. He took the calf into ■Goodalls Yard about the 30th July lst>3. The calf was not; branded. He was present when the calf was branded by J. M'jvenzie ! JDG upside down. The calf was a heifer, and M'Kenzie promised him the lirst caif for 1 bringing the heifer in. He saw the beast branded, and examined it, but there was no 1 brand on ifc than. fehe was about 18 months old. He had frequently seen the heifer since but had not seen any otner brand on it. Ke believed that the P on the hide produced was tlie last put on. Cross-examined.— He did not think the brand on the hide larger than the brand itj self. M'ivenzie told him to bring in the I haifer. The white cow had a calf at her foot about a week old about tnree and a half years ago, in September 1801. It was eignteen months old when he branded it. He used to see the calf almost every second week, but did not brand it sooner because M'ii.enzie was away. She calved six months ago. By the Court. — M'Kenzie promised him the caif when he brought in the cow. He I did not see the cow afterwards for a year. Frank Chrystal — knew that Gardyne had a white heif ar with blue spots on neck, running 'on Cooks ridges. He saw the hide produced ' and thought tne P the last brand put on, be- ; cause the hair had not grown on it tho' it had on the G. Cross-examined. — Hair grew on brands if they were not too deep. By the Court. — He had seen the heifer twice in his yard. Nine months ago he saw the JJG brand on her. He did not believe the P was on it then. William Noble — had known both the cow and calf. The cow belonged to Gardyne. She j was white with black ears and blue spots on I the neck, branded D G upside down. He : knew the cow to be M'jvenzie's from the brand. j Cross-examined.— Gardyne had told him heifer was his. M'Kenzio was not here when the calf was taken from tiie muther. He had seen tiie heiier but seldom. Ttpmas Ayson — Had been in the employ of Mr Gillies in 1860, and remembered him 1 buying cattle from Plunket. He brought a j strawberry heifer out of Coal Gully in May lat»3. He knew the cow sold to Tweed, but did not know the heifer. Isaac Wyber a butcher, had some experience in brands. He thought the Pon hide produced, the last put on and as it was so deeply burned, it would be visible at all times. George Cameron and Wm. Black both thought the P had been put on first. G. B. Perdue, Inspector of slaughter yard's had considerable experience in brands. He thought the D was on top of the P. Judgment was reserved. On Tuesday, April 4th, his worship delivered judgment in this case as follows : — In giving judgment in this case I shall briefly <jo over those portions of the evidence whic'i have induced mj to come to my dcciI si m. Before doinu so I may say I believe the evidence to have been wiiat each conscientiously btjiievi-d tn have been th case, ;>.ltho' it I 1 inus' be evident that .some * ere mistaken. Mr. 1 ; ( Jillus 3 evidence is that ua January 20th, 18G3,

lie bought all Plunket's cattle, branded and unhranded; that he sold Tweed a white cow, call, and strawberry heifer, out of thtse cattle. That he (Mr. Uillks) had delivered to him-s-ell, personally, two b ue strawberry heifers. That he never s Jd a blue strawberry heifer Alathew '1 weed says that in 1863 he purchased from Mr. Gillies a cow, calf, and a heifer. The col< r of the heifer was white, with bJue spots through the whi'e. That he turned them out on to Fortification. !Saw it (the heifer) three months alter to know it. Six or eight Auonths alter he saw it (the least) but did not lnKTw it, because it had another brand on, blotched over. J have here — the purchase of the heifer, a description of it, strawbeny white with blue spots through it, t lie turning of it out, the seeing it on the run, and six months after a beast is there with a blotched brand which is the be.ist in dispute and a portion of whose hide was in court. Mr Fopplewell recollects a heifer being brought into his yard a month siuo, be recogn-zed it as having belonged to I'lunket ; he delivered that beast in Mr. Gillies' padeiock three months aittr he had instructions to deliver ; it was delivered after the bulk of the Ciiitle; it broke out of the paddock ; this is the dead heifer. J^ojv; let me recapitulate: in January 1b63 a heifer is p rcliased, one says strawberry the other while •.vii h blue spots through it, a variety of description v.'hieh will give me a blue strawberry, it is turned out with a cow and calf on to Fortification. Tim c months after, say about end of April, Tweed sees it. But that is the lime ttlun Mr. Popplewell states he delivered the heifer which is now Ling dead. Therelore, of course, one of the parties must be mistaken. The evidence goes on to show that n must be Tweed, for Ayson, then in Gillies employ, fetches from the place a blue strawberry heifer in May 1863, a date immedia.ely alter she was seen by i weed. Case dismitseel.