AN IMPOUNDING LAW-SUIT.

Bay of Plenty Times, Volume XXXVIII, Issue 5524, 13 July 1910, Page 2

AN IMPOUNDING LAW-SUIT.

At the Magistrate's-. Court onFri-i day, before Mr Dwr, William;, A\ Benuett charged Michael !'» Welsh and Paraire Pine, ot Papainoa, with illegally impounding 40 Iwael of cat-\l-i, the property of plaintiff. Two other complaints, wore laid against the same defendants for excessive damages and excessive trespass rates. " . .

Mr Sharp appeared for plaintiff, and Mr Hodge for defendants. Mr Dalton #cted as interpreter.

; Irr his opening remarks Mr Sharp contended that the cattle were (illegally impounded on three grounds. Firstly : His client had authority to put the cattle on the land from \vh>clv they were impounded,, the authority being given by oiw oi the owners of the block, which land was held by tenants' in common. Secondly : Ssc!«iani 11 of tho Impounding Act set out that the description, brands, etc., of impounded cattle should be feiven, but in this instance no brands br earmarks had been specified or» the notice given ' to the i*oundkceper. Thirdly: The Impounding Act stipulates that the place from, which the cattle were impounded must be. specified. The notice slated they. were impounded off Mmm&atawa but did not show tho nubdivision on wh/J,c"h the cattle 'weft! lix'spusf-i^g. Mr- Sharp <juofced in support of his arguments the '.case of •Ja.co'b's v. Seward, in regard to tenants in common ; and tho case -of MolvalTy v. Jury, bearing on the question of brands and Earmarks,. In- dealing with t.he question of exoessive trespass rates, Mr Sharp said the land

was ■ not legally fenced,, wild ictuoted the case of Olsen v. Bailey. He also contended that the driving fees were wrongly estimated.

David H-all,: pouiidkeeper, was called and produced the pound :book. The .book contained the notice given to'him by defendants. They both signed it, setting' out that 40 steers had been impounded. The colours were described, ;hut no 'brands or earmarks were given.. They claimed £1 trespass and; damages, and £i; driving and pound foes. Witness admitted receivingl three notices from Mr Bennett before the cattle were released, (Tho notices were produced). Witness, continuing, said the cattlj were branded and earmarked. They were all branded, but all the "brands were not distinct. Some of the Isra.n/ls .woro |irq(lt'yt distinct. The earmarks were pretty good. -It appeared to him thut there was a nick out of the top/ and bottom sides of the ears. Cross-examined by "Mr Hodge— Sww Bennett ■befi>ro 'tluV entitle arr|ved, and he told witness that his cattle wore Comftug. The brand he saw1 wqsJ.J., WHiicss' xlesrrifbrd some of the cattle to Mr Welsh, but not all of 'them. Tho cattle were fairly quiet. Tepakitc Rakaherea stated he was one of the owners fai the Maungntawa No. 8 Block, and that Paraire I'ine was also nn Qwncr i.'iv H/- The land had not■ jb'evn surveyed, but

had been marked out on the plan in the Native Land Court. The cattle impounded were driven off No. 8. Witnwss gave authority, to Bennett to put cattli; on No. 8. Witness j i\iviv the cat,tlo driven from' ttjo. fl. Witness is not an owner ir. lot 9. Witness is uncle of Paraire Pine, ami the latter is an- owner in No. 8, but not in No. 9. Weli-h ted Possession of No. 8 two years ago. I'id not authorise anyone to impound the cattle. Cross-examined by Mr Hodg\p—

Witness was «at J^atJn'iyntr.wal when the cattle were driven off. The two defendants and Pauro were driving the cattle inside N<q. 8. : Witness" gave Bennett both verbal and written authority to put the cattle on. ;\fter, h« gave Bennett'authority, did not want- to t'ivc W<>lsh authority. Witness is only interested in No. 8. Maize and turnips «aro oiv 'iS-d. S, but not on No. 9. Welsh employed libour to plant the maize and turnips. Witness showed Bennett the land to put tho cattle en. (Mr Hodfja (produced -\a\ul handed in a plan showing certain boundaries';. Witness, continuing under crossexamination, said he hud nothing to do with planting the maize. Witness was cr'os.s-examined .at some l-'ivgth regarding the map. ' Witness, cbntuuiing, stated that all fences and cultivations are oii No. 8. To the .■.Vfayi.strflio—Witness was paid £4 by Bennett f>rtlu> right to put cattle on tho land. Welsh has had possession for about two years cf. part of No. 8. He has turnips there ; also catil?. William A. Bennett deposed—He had authority from the previous witness to put cattle on Mmmgatftwa. This native went ai^rl poi,nt<vl out tho land where the cattle were to be placed. (Witness pointed out on a map the position of fences in the locality). Witness continuing, said there were maize stalks and grass in the paddock when he put his cattle i;i. There were other cattle on the land also- Understood they were Welsh's. Witness' stock are earmarked and branded J..J. l v some cases the brand is "fairly clear, and in others indistinct. Tho cnttlu were earmarked on both curs with his registered earmark. • Paid £4 to the native and was to pay another £2. It required two men to take the cat.

tie back from the pound. Through being deprived- of the grazing witness estimated such loss at £2 per week, reckoning the grazing at Is per head per week. Witness put ,tn t cattle in on June 28, and his agreement entitled- him to possession till the end of' September. His cattle were n o t on the land n o w. Cross-examined by Mr Hodge—j Paraire Pine asked witness if he wanted maize stalks- for fernoing. j

This grazing was on the same i block, raraire Tine wanted £I' 2 for his share of the grazing, 'but he said he wt>Hild ■Uv,vu V.o sec* AVtl;h first. Was not told Welsh had the maize stalks, but understood ho had ft portion. Para ire I'inc said Re \ owed £2 to Welsh. Witness wits ! certainly not 'after Welsh's maize stalks and turnips. Bought the maize stalks front tl.y first witness Received notice that the cattle wero being impounded. : Archibald W. Snodgrass stttid—He drove the impounded cattb from the pound. A number of them were-dis-tinctly branded .r,.1. ; on others th* ! brands were indistinct. Thy ear- | marks wero r.uite distinct. i'his cl :Pe:l t.he [I intifT's o?s\ Mr riodg^!, counsel f«r dofeiKlanis. suhmittryl that since March HI, 1910, the law in regard to native lar:ls had been altered. He qu-itrd section 2W. of the Natl'c< I ?nd Act, whirl, said ti, i)t «i,e n any nytivc land is h'.-ld l;>\- jii<.>rn thai) t.-n «<wner.s no native n«nir s-htill hy wipabl'7 ..« makmg any ali.natum v.ithout ii.jiv-r po tinrJcr the ."Js:»-m----l)lrd owners' cl msc. <r wi'h the consent of the Xativy, Land Kw,| He conui.dtd tint one unlive coul 1 •MA alwiate 'Ibo lan 1 in -^u-stion rmd the ri^i.l I,> . 4 |,,7« f.., r it,,....', mo..Hi.-, nnr; ft n ;.lieiiatir.n. 1 l,f aa,ii.Act pr,,vid u i ilrat o-xiMi,iK tj ß ru». 1.-.MU.S h 1 I ffoo -J MfA the (Ji ~ m)!M)t (WHsh) had a lease <o (he i m.,1 ]f,. I'ar.lhm th.- (l umliim „{ j Jnia SQii Vv b-K-1 that tho plaintiff was only dePr,vrd of his-grazing riehts *or 10 •..ays. Th s ?o a difficult- i r

leasing aatiVt*Hinds,, tuid he dqprereated the action of one Europ^m interfering! (with anp^frrr in the occupation of native lands. Mr Hodge contended thaUthe fence! having! (been agreed on between the owners was a sufficient fence witbin the meaning of the Act.. PJiparini was qaltysd and said he #ras an owner in ;So. 9 m MlauwgutM>ra. Gave Welsh a lease of the land, but d>d not know the term. The lease was in writing. Mr Sharp submitted that the lease, ahuirtd be put in Vnti said one;tenant in common could noi\ lease or! giv« exclusivd po9session'j

Witness*; continuing, said there •re- five owners. He saw the cattle toeing impounded. Tjhej' were driven off No. 9.' Witness could tell sonie•where noai; where 'l)h!O lino went (l)!e----twwm Nos!. 8 and % tu«l did so' on the plan. Cross-examined by Mr S-harp— Honiara 'has leased ,a portion Of Ko 4 to Colin McNaughton. Witness did net lease" ttny: land: U» rariure Pine, ' Pauro Kirikau deposed—Knew the land Welsh has ut Jklaungttt&wa. Kcmenfbered cattle frraug impounded, but did not know* from which sectiom Witness helped to drive the oattle oil tho land and indicated same on a i.lan.

Cclin McNaug-hton stated that he had leased part of section 9 irom Honiana, who acted for t,hi> owners. (Witness indicated the land on the plan). -Another part of No-. 9 has been leased by Welsh for a year or ftiore. Knew the latter had crops ol maize and turnips in it.

raraire iVine,. ono of the defendants, deposed—He was an owner in No. 8 Maungatawa- There w«re nioro than ten owners in it. Witness has no actual right in No. (J, but his grandparents are -interested, which gives him a Maori right in- it. The cattle impounded were taken oft turnips on a portion of«the land leased ny his grandfather 'to Welsh. Helped Welsh to drive them off. Could not •ec the brunds on the cattle. Noticed some were earmarked. They were quiet cattle. Witness was cultivating part of Xo. 9.

Robert McNaughton stated that he was at the pound when Bennett's cuttle were impounded. The brands were very . indistinct. There were dif*erent earmarks on the cattle. Kahotea stated that Bennett bought his (witness') maize stalks, and he • understood that Bennett drove cattle to Paraire's. Michael P. Welsh, one of the defendants, stated that he held some Maori land at Maungatawa underlease for twelve months. Mr Sharp said he would object to any evidence on the document unless It were put in. Witness, continuing, said his land was a portion of a dry point running into a swamp. (He pointed same out on the /plan). j

Continuing, witness stated thut ho had maize; and turnips on the land. On June 28 a Maori told witness that Bennett had turned cattle on his (witness') maize. Next day he igave notice to Bennett and afterwards impounded the cattle. The cattle hadt mjixed brands and parmarks, and he did not go to thu trcAi^.lj of en-umer»ati|ig the 'bra-iuls and earmarks because he untU-rslood from the poundkecper that Bennett wan jgoing to release the rattle that d&y.

Gross-examined by Mr .Sharp— The land was leased 'by witness from, -Miparini and another native. Tt was part of Xos. 8 and 9. The cattle were, on witness',turnips when he impounded them. As far as he knew the cattle were on Nos. 8 and 9 when 'he sr-nt the notice. Witness impiounded the cattle, on the property the night before and met Bennett on the road and told hqn. ,

Re-exaniinori by Mr Hodge—Paraire was looking after witness' catIlj and to save fencirrg had the right to run his horses on the land witness had leased. This closed the1 case for the defendants. IWr Sharp quoted the case of Hanakuiravv Hearn to show that the Native Land Acts do not affect a parol agreement for less than a year. The Native Land Act, he said, only refers to instruments of alienation.

Mr Uyer reserved judgment til' next Court day.