Resident Magistrate's Courts

Bruce Herald, Volume IX, Issue 827, 11 August 1876, Page 5

Resident Magistrate's Courts

-balclutha;.

Wednesday, 9th August.

(Before J. P.' Maitland, Esq., : Rift.)'

DRUNKENNESS.

James Mill, G. Miller, and Thos. Dawson were each, fined ss, with the alternative of 24 imprisonment, for having been drunk and disorderly. CRIMINAL CHARGE. George M'Fadyeu was charged by Robert Andrews, of Catlins River, with having stolen a qxxantity of sawn timber, valued at £10. Mr Kettle appeared for the accused, and Mr Taylor for the prosecution. There were three similar informations, and Mr Taylor desired that they should all be tried together. Mr Kettle suggested that they should be tried separately, as it would be very unfair to try them together. He intended to call some of the accused as witnesses.

His Worship remarked that he did not think it would be fair to allow the accused to give evidence one in favor of the other, as they were all charged with stealing the same 3000 feet of timber.

It was ultimately agreed that all the three informations be heard together. The charges against George M'Fadyen, James Hill, and Thomas Hill were then gone on with.

Mr Taylor, in opening his case, said that the defendants were charged by Mr Robert Andrews, sawmiller, of Catlins River, with stealing a quantity of sawn timber at Catlins River, on July 4th last. He stated that they took the timber away by boat in the dusk pf the evening on the date mentioned. Captain Robert Andrews deposed that he was in partnership as sawmillers with John John Dickson at Catlins River, and identified the accused. He stated that the two Hills had been employed as rafters of timber, and M'Fadyen as henchman. They were iv the informant's employ all at the one time, and were in work at the mill since May 1875, until some few weeks ago. He stated that they had 1240 acres of freehold land, with about two miles and a quarter river frontage to the Catlins River. Thb sawmill is about 60 feet from the river bank, and about the centre of the property. He saw James Hill on the evening of the 6th of July. He had a conversation on the 6th of July with James Hill who came to him in answer to a letter sent' him by witness. Hill stated that he had bought and paid for the timber which he had taken away. He had paid M'Fadyen for it, and said that Mr Andrews was the first mau who had ever accused him of being a thief. The witness said that four persons were present, but, being seafaring men, he therefore could not produce them. Witness replied to Hill that if he paid M'Fadyen tor the timber the more shame for him, as he knew well M'Fadyen had no authority to sell timber ; neither had he given M'Fadyen authority to sell timber to anyone during the time he was employed at the mill or since he left it. M'Fadyen had a quantity of timber lying alongside of his garden fence for his own use. The house he occupied belonged to the firm, and it is a rule that anyone employed by the firm could have any timber to either repair or build a new house it necessary. Employees had no light to deal with the timber in any other xvay. He did not see the timber taken away. He did not authorise the Hills to take any timber away without leave. By Mr Kettle— He saw the two Hills on the 4th July, about noon, in the timber yard. They purchased some 500 odd feet of timber that* day. They borroxved the rafting punt to take the timber down. They frequently bought timber at the mill, and paid for it, It was customary for them to borrow the punt. He did not know oh the 6th of July, when he wrote to Hill, that they had taken the timber from M'Fadyen's place. Mr Kettle here handed xvitness a letter, which witness acknowledged to be that sent to the Hills,, and wherein it was distinctly stated that the witness did know of the timber being taken from M'Fadyen's by hearsay. The witness admitted his error, having forgotten that fact since ! writing the letter. Examination continued — He did converse with M'Fadyen, but M'Fadyen did not say that the timber was his. He did say to M'Fadyen fhat he (the witness) -^as sorry faxMrs. .M.''Fadye'q aixd hep childreix, that he ha,d to draw hjm (M'Fadyen) ibfo such trouble. He did not say that he djd so in order tq get at the Hills. The Hills had a store, but he was not in opposition to theirs. He had told the Hills that they could take scraps of timber with tbe permission Of Mr Miller or witness. He had known the Hills for 12 years. They were not in opposition J^ h/jox fn 'tjie stqr£ lfne. He (*aji "jt a gr.og shanty. ;i ; Mr Kettle — Well, their grog shanty is in Opposition to yours ; is that ; xt ? fyifne.ss safd he set his, face agafast grog drinking, ••j.'he witnesses present at their pffice when Hills staged that be paid M'Fadyen for thetitribir w^ecr- Joseph 'iiqilo way, m.&st;er pf tbe tfane Hannah \ David Connor, of the iljr fated tjagmar ; and }YVf\\ Campbell, of the schooner Spqe, '',''..' Thos. Lister deposed that he was a driver at Andrews and Dickson's mill. He knew the accused. He saw the two Hills about three o'clock in the afternoon of the 4th July, taking s timber away from a heap whjc.^ wa§ lying by Mr Mf adyerft* qf^se, put person at, pc time. He \yas there for abpu^ Half an hour. He left and wen,t^ards'tne jjiill, afld return^ aJMmt an hour after he .g'axv-'tbe Hjljs proceeding down the river w#q the punt. The punt is about 20$ long 7, ft {(earn and frqiri l&n, tq 24hx:deeR. He could pot say -how much timber wasin tbe punt, TbW 'Obe ffills) had just Cbme from the mill with a large quantity of 'timber In the punt, when they took timber in at M'Fadyen's.' He, did not remember 'seeing M'Fadyen that dayi

By Mr Kettle — He stood by the Hills, and .saw-v^hem-loading^jthc^ -'timber-^for—half-aTr hour.. He, did .not Jcaow .whether they were; stealing it or r^ot. He did not notice xyhether thV'Punt wras- canted or not^ / . MrsLydia Jones i deposed that she was the wife .of Emanuel Jones, who was employed I by Messrs Andrew and Dickson, and lived ■ up'oU their property; "•■ She knew the accused. Oh the 1 4th of July-she; saw, M'Fadyeh and the twb : Hills about three o'clock. M 'Fadyen was passing sawn timber from the side of the 'fence by his house to Jarixes Hill. Thomas .Hill was in 'the, punt. She saw them from her house,^which was pnly aiew yards apart from M'Fadyen's. ' The. timber was put- into the punt; ; She : could not - say how much timber as-wtaken^away. •' >. i citWm. 1 sMohciir' deposed that ho was .employed by ' Messrs Andrew, and Dickson^ and, lived upon their -property! ' He saw 'the ' Hills and .M-Fadyen in the afternoon' of the '4th July last,' He saw the Hills' first load timber "at the jetty, .and afterwards ' come' Tound to M'Fadyen!s .place (a distance of 50 or .60 yards) and load more sawn timber. M'Fadyeu assisted them,- there. He, had no, idea how much was taken.: .j.:- „.,..,,.. By Mr Kettle— The taking away of the timber was ■' hot conducted in any secret manner. l ; . : " ' . This closed tbe case for the prosecution. Mr Kettle submitted that there was no case to, answer: Mr Andrews had evidently mistaken hxS; remedy. If any timber had been taken, he should have summoned the men for the value of the timber, in place of laying a criminal information. He held there Was no possible case to answer, and would not, therefore, detain the Court with any further remarks. He said that if the Bench would consent, the accused would make a statement, one by one. Geoi'ge M'Fadyen, one of the accused, said that if he was allowed to speak it might save a lot of trouble. He then stated that he had been engaged at the mill for eighteen months ; during that time it had been the cxxstom there to take any refuse timber that is not used in the yard, for building purposes. During the past twelve months he had built two houses of waste material. The remainder of the material was beside his fence. He was often asked for a dry board and always gave it. On the 4th July, the Hill came to him and said, "As you have been discharged from the mill you will not required the refuse timber lying along the fence." Witness then said he would not require it, and they could have it if they chose. They said they wanted the thin lining boards, as they were dry. They then picked out what they wanted and put them in the punt. The timber was lying there before Mr Andrews' time, and was of little value. He did not sell the timber. Oue of the Hills, in drink, told Mr Andrews that he had paid witness for the timber. James Hill stated that on the 4th July, he and his brother went round to buy some timber from Mr Andrews, who told them to go to the yard and pick out what they wanted. They loaded the punt, but. owing to the various lengths she listed over after they had started. They then put iv at M'Fadyen's, and as he had forgotten some carbonate of soda which he had ordered at Mr Andrews' store, he went back and got the soda, and upon his return his brother said they might take some of this refuse which M'Fadyeu did not want. Tbey then put in ten pieces to adjust the punt. As for stealing the timber, it would be very unnecessary for them to steal such timber when they could get any quantity given them, and even by MiAndrews, who had formerly given them a punt load, the same Mr M'Fadyen being appointed by Mr Andrews to select it, and from which they framed a house. Thomas Hill confirmed his brother's statement, and had nothing further to say. He then handed in several ceriificates ot character.

His Worship said he did not think there was any felonious intent on the part of the accused, and therefore discharged them.

Civil Cases

ALEX. LEES V. THE N.Z. AND A. L. COMPANY,

This was an action to recavex* ■£•23 for balance of salary and expenses. Mr Henderson appeared for the plaintiff, and Mr Reid for the defence.

A. Lees deposed that he was employed by the above Company as shepherd, and served fully ten months of a term of twelve months for which he had been engaged. On the evening of the 16th July, Mr Mitchell complained of his (witness') dog and M'Kenzie's having worried some sheep ; he then ordered him to go to the office on the followiug morning in order to get his money. Ho went,. but the clerk would not pay him for the full time. He demanded full pay and board expenses for the remaining term. He never disobeyed orders, but served him to the best of his ability. He had been under £10 expenses since he was dismissed,

By Mr Reid — The £10 expenses included partly law expenses. He did not instruct Mr Chapman to claim £10 as his claim in full. He did not know that the rule of'the. station was that all clogs were to be tied up at night, with the alternative of being dismissed iv the event of such a rule being disobeyed. He was aware that his " boss " and the clerk were taking sheep out of the river qa the evening of tbe 16th J^ly, W} did not go to assist therp. 'lie did, not consider it his duty when the "boss-' was there. Sheep had heexx xyorried three different txxnes. M/ Mitchell d?d not tell hini that he was dismissed for breaking the rules of the station. The amount of £-2$ was made up by expenses, board, &c, £iq, and £9 for wages.

By Mr Henderson— When the clerk offered to settle, w^h, hi.nx, be would not take the amount offered. He would have been -willing to have paid for what damage was done to the sheep if be had 'completed his term. He had two, dogai, hat he, did not believe that bis dpgs \yo,uld worry sheep. Jame* Mitchell, manager of the Clydevale Station, deposed that he had been on ClydeYale for fo^r and a half year*. He hud six or seven shepherds on the station. On the 16th July, in the. evening, he heard dogs barking on tb© river bank ; he xvent down and found three dogs worrying at 25. sheep, which ftci-e---jammed into the rivers one dojr '^alo.nged to Lees, and two to M'Kervsie.. He then went to tbe hut and tO|ld M'Kenzie, who went away a,ftsr the sheep. He told Lee» also. life ultimately "went' bafek. to the sheep, and tb.e three dogs y^eis still tbere. There had been, seyej*?^ cases o,f worrying on the station — -©,ne ease he. could riot find out whose dogs had done the damage, Re then issued particular- instructions that if any shepherd \tft his, dogs loose at night ho would be discharged^ He- bad spoken to the plaintiff Upon the matter. He had 13 year' sexperience on stations; and it was a shepherd's duty tb tie up his dogs at night. He was of opinion, that a run holder would be justified j^ discharging a shepherd for allowing his dogu to be at large at night, after Q-pt^ce tnat dogs were to be, tieq *u.p a,t night' haying been

issued. It was for that fault that he had discbarged.the^prffsent^aintiff. -;rx. xx ■~yyyx u y xxx. . By Henderson-r-He had ;,teld Me Lees v that if he allowed , his *dbgs-"tb be * lobse Vt ' B'ght that he would be discharged. , Mr Lees Via* denied having' been told, but he must' ' fiuve been aware of tbe above rule. lie had dogs which were not tied up at nights. -He " was sure they did' not worry sheep. •■. . T., M'Kenzie deposed that . pn the even- :-, ing of 16th July he saw two. dogs' and 'a'.bitw-^ worrj'ing sheep at; the; river side on C!"'4^jhJ vale Station. He caught the bitch in his arms 7 . She belonged to ' Lees. Tbe two dogs belonged to him. He • had been, told by -j Mr Mitchell that if he ; left his dogs loose he would' be? discharged, and rhowas discharged. Mr Lees: mxistdiav.e'Tbeen aware of the, rule of . tying xxp, dpgs at night. '. . . ' '. ''.''•'' ,: By JV^i-; Henderson— He' caught the bitch in his arms, and, after wards he : let her loose.' : - = There were four sheep 1 worried; They were. ; in the river/ arid -the bitch was in the, water* ; after them: 'He would have known the -, bitch y-, without catching her . ; ,

Mr Reidr said he would not call any more , y witnesses,- as he submitted, that he had proved" f;he identity of the. dog, and the dismissal was " l ' * warranted. , ' ' " " ■ ■ '-

.Mr Henderson submitted that there was no ' evidence warranting' the dismissal. •>:

His Worship said that the question .was— r Did the plaintiff receive the necessary instructions with reference to tying up his. dogs or untying them ? He was of opinion that, the plaintiff must have been aware of its' being the desire of the manager that he should tie up his dogs at nigbt ; if a £500 sheeptwas destroyed the owner could not look to a shepherd for payuxent, as they seldom had sufficient money to pay. It was, a case of negligence, and one which was of grea*-. importance. He did not believe that the plaintiff was unaware of the : rule of tying up his dogs at night. He was of opinion that after the accident the plaintiff should have taken the amount offered (his w r ages to date), aud have left. " ■ '

Mr Henderson here stated that Mr Mitchell had dogs . loose at night belonging to him.

His Worship remarked that the defendant could keep as many dogs as he liked' loose, but he could compel a shepherd to tie up all his dogs.

The plaintiff stated that Mrs Mitchell was only a servant the same as himself, s His Worship gave judgment for the plaintiff" for the amount offered, less 6s, and 21s costs. N.Z. AND A. L. COMPANY V. ALEX. J.EES. Claim of £51 10s as compensation for damages sustained through the negligence of defendant. 1 James Mitchell deposed tbat four sheep were worried on the evening of tbe 16th July. They were worth 18s each in Dunedin. There were about twenty-five sheep driven about on the above date ; they were very much knocked about, having been stuck in a kind of quicksand, in the river. They all had to be dragged out of the sand and carried to the bank. Some of them on the following morning could not walk away. He considered the sheep were 'damaged to, the extent of 10s per head. lie had killed them all off for mutton since thfiy were taken out of the river. '.:•:• By Mr Ileudersau —He considered the Company had sustained a loss of 5s per head, in loss of weight and damage to wool. They were good shee£, but intended for killing. He saw Lees' dog worrying the sheep. The dog was not trying to drive the sheep from the river, but into it. "

Thomas M'Kenzie deposed that the sheep after being taken out of the river could not walk away. 'He considered they wex-e damaged to the extent of from 5s to 10s per head, hut that they were worthless to keep alive.

By Mr Henderson— The sheep were kept in the paddock for killing. If they had been killed immediately they were taken out of the river, they would have been damaged to the extent of five shillings in the value "of the wool alouo, . . ' >

By tbe Bench— He had paid 30s«' for the two sheep that his dogs worried. , He never had a dog shot on the station for worrying sheep.

Alexander Lees deposed that he examined the sheep that were drowned. They were very inferior sheep. He considered they were worth, say, two at 7s 6d and two at 10s. The other sheep were damaged a little by the ducking, but they were feeding about. Judgment was given for 30s, and costs of Court £i 12s. Mr M'Kenzie, a witness, claimed expenses for himself, horse, and three dogs. The sum of £1 10s was -allowed him. SIEVWRIGHT V. MASON. Claim of £2 Os 4d. Mr Reid appeared for the plaintiff. - Mr Mason pleaded not indebted, and stated that the plaintiff had been engaged by him as a weekly servant, but had left on the sixth day of a week, of his own accord.

David Sievwright deposed tbat he wa thirteen months working f w ]\l r Mason ;be had no engagement, hut was paid £2 15s per week. He \yas a bootmaker, and if competency- \va.s required, he could show a, certifiea,te from the X^rince of Wales.

His Worship x*emarked that he should ?,d vertise that.

Witness continued— The defendant had asked him if he would go on by the day, which he did. A bootmaker could leave at any moment after he had finished the pair of boots ir\ hand. The employer could also discharge in the same manned The week be left there was a holiday, which made up the week.

By Mr Mason — There was no agreement, he was sometimes .paid once a* week, and sometimes once a month, he could swear that he was not paid regularly every weekAfter he discontinued the piecework, be agreed to go on -at; 9s 2d der day. His wife put in elastic for the defendant! at his request! He did not remember tho" defendant telling him that women w^re not allowed to work iv '

connection wy^ men in New Zealand in the boot tr^ie, -He- -was always willing to give * 'ue apprentice any instructions, or even the :• defendant himself, which he could. Peter Mason deposed that the plaintiff h">.d been in his employ for five months at r>;, ece _ 'work, but as he had aa apprentice Whom he wished to "be instructed, he aske'l him to go oa at £2 15s per week, so th-y t t h e apprentice could.be instructed. J^ 18 aver age wages during the, time he w as on piecework was £2 14s. If Mr Sxc-f bright took a half-holiday he never storvped anything from his wages. The plaintiff contradicted Mr Mason's last statement.

'V-'x-l'is Worship remarked that the plaintiff had bee,u in the defendant's employ for a long tipAS. Qe asked if Mr Mason wished to get iftye days* work for nothing. The plaintiff, stated that he had been very obliging to defendant.

Judgment was .given for the amount Glaiinedj with 9* costs,