A CATTLE CASE

Greymouth Evening Star, 24 June 1925, Page 2

A CATTLE CASE

RYAN- v. CHAMBERLAIN

A rather''complicated civil acuon, tfhlch at tlms3 tried, the/temper c f Mr. Justice -Alpers,, was commenced a-t./theTrSuprenie .Court 4 . ..Greyipp’uth, J times R#n, farmer, pf . Riptoniann," proceeded against Isabella Chamberlain, farmer, of Ruru. Numerous ./witnesses were- called on both sides’,' and ' the farming community of -the Olira line was well' represented? .'•■■'jn his statement of, claim, it was set,Wt that Ryan was the lessee of certain lands at Ruru, comprising 700 acres. Which land he has had securely, .ting-fenced for the past 12 months; that he had thereon 31 head of cattle, comprising -29 ■ heifers in cplf and two bullocks; that in or about (the month of April, the defendant, by. her .agents, one George Mal- •; iinsoh t’w'O/ of.-her sons, Robert <and. Edis</n r Ghhmberlain, did wrongfully take down the fences enclosing the saw' land, muster the plaintiff’s stock, and, during ‘such operations. ' ' Wl six'heifers, the balance : of, the',stock’, except-'-’two bullocks; . that' defendant, by her action,” Toh- . verted .tjie balance of' the stock to her s • own u$K and wrongfttily deprived the . , plaintiff of them. Damages were ( claimed, as ToIWW;. FdY 'stock killed, / £6O;-for stock.remoydd and not re.-. 230; for trespass, .£25; for wrongful conversion of : stock £75; also 'dbsts Of the action and such other-relief as the Court may deem fit:- • Mr. W. P. -McCarthy appeared for the plaintiff, and Mr. V/. J. Joyce for the' defendant. .-'.--X '*' • -..ln..opening" the’ base, Mr. McCatthy said tlitit. Y'h'e plaintiff’s *farm ‘ .of Tfoo .. acres' at' ROtomanu had been fenced. The 'hW'ijeeii on. (he place for about ."I'2 ‘/m’o’nths, ; but about Anztic Day last plaintiff discovered that the stock had,'‘iisapbeared, . Later three “ heifers .-fbund/alive, khd a nunibei' vHiB . neighbours,: thh Chamberlains; were approached and it was Stated by them that Ryan’s stock had .been taken-ft)r use as -decoy's to 6’n£ble th'efai ft) •rec’over tl/eir own stock. Ryan Hadsince been unable to trace ilia rfos,3Mithe’pnly conclusion was -.tiidt liad been removed by the Chamberlains and hot replaced. It-was to. be proved that Ma 11 inson \yas (biyagent of Mrs. Chamber!-‘-i the rfhVStock. Iri all, 29 4?adr of 'stofek jmissed, valued ht jj.lo plk head. Damages were also claimed Wdamtige' -to - ‘fencing. The cattle were at the time heavy in calf’, and such removal would cause damage to..th’e ; fietfeYs.'A' cfaim was therefore added'Crtf that count. In reply to His Hdnor, Mr. McCarthy said that'the country was of an open and wild nature, and an exhaustive search had failed to recfever all the cattle. It was really a “No Man's Land.’’ x ‘ L"l > ( • I ■■ .; > PLAINTIFF’S EVIDENCE • j Plaintiff, staffed /that‘ he'' lived at . Rotomanu, and had a farm at Ruru, which het occupied ’for' an absentee owner (Nyberg).'He took possession on February 23, 1924. He repaired the fences, which were of six wire's, With silver pine posts nine feet apart. He bought stock front Canterbury ■at a. sale at Rotomanu, and- also had some stock bred by himself. Forty head of stock,were put on the farm

tor the winter, but eight cows were ' taken in later. There were 32 heifers ' left on the farm. He visited the Ruru farm up to three times a week. Fire went through the land, and he sowed grass seed at the .end of February. The cattle were then all there, but o on April 24 he found two beasts dead, and. saW blood in tbe vicinity. He got On his horse and rode two 'miles to Bell 'Hili, to see Mallinson. •life- asked: Mallinsonwhether he had been there “dogging” cattle. He re- ’ plied that he had’ beeir “dog-ging” and ./took some Of Wrtiberiain’s cattle ■ out. He stated that nobody authorised - him to do so. Plaintiff then asked 'Mallinson to visit the Harm next day to see the dead heifers. He did so, • hd asked Mallinson to look for some

more, ■ but he replied that it was too late, and too wet. Mallinson did not ■ keep, an appointment On the . following' Thursday. That day plaintiff and Til? ; brother searched the farm thoroughly and found four dead and three live cattle. A red beast had half b.ii-ear off,; and. in plaintiff’s opinion

'dOga had, caused the damage. No Other stock could be found. The land occupied by .‘plaintiff carried patches of:- liufh, blit stofck could easily be found. When examined, it was-found that at one place the staples had bfeen withdrawn/ from the fence and a log . put on the wires. In another place the staples wete gone. In one place -netting staples had been put in .to replace the //-heavy Staples. Pihiptl't then rang up Constable talWell and told him what had happened, asking him to visit Ruru and see >’ Chamberlain. Plaintiff accmnpanicd the Constable to Ruru. The latter saw Bob Chamberlain. ' '■< !Mr Joyce objected to this evidence on ,thb ground that there was ho basis of agencjb . •• Continuing, plaintiff slid he , knew Bob" Chamberlain, who was working at ' z hotne. Mrs Chamberlain, was also in. terviewed ‘by Calwell. She admitted that she employed Mallinson to muster the cattle: arid - gave him £i.‘ She al#o said, that nine wild bulls K-id been shot. .Plaintiff asked her what had become of the hides, and she slid - they were sold. : Site said that her two sons and Mallinson did the musterihg/;;/ . > • Mr McCarthy submitted that this formed a . basis ,<?f agency, * and His IJonor agreed,-subject to the formal objection of Mt J byte, : made-• on the ground that Mrs Chamberlain had six sons wptkifig in' the district. \ ■■ plaintiff, ; .cOiitiijtiiiig his . evidence, said that Bob Chamberlain; when ques. tibried byithe constable, admitted interfering with cattle. He said that he and Mallinson tcok.the fence down, took 20 head out-of the. paddock, and used them. as decoys to muster cattle of their own. He also said that six of/the - -plaintiff’s cattle were ■ already out of-the pad dock. .--Plaintiff had' been looking : for his stock since. When making. A further search', another ..dead beast was found, i with both ears bitten and torn about. The ground was all trampled *as if the beast had been fightiiih ddg-s. Plaintiff’s ear marks onifcattle were two slquare holes and a spl V-’at’-tlm point of 'the left ear. Only'one of-the 1 square holes was' left • on the beastX. The cattle found dead would all have calved by September;. He valued ■ them fit £lO per head.. That took into consideration the ;fact that they" were coming into profit. at am early date; • lie? estimated th a damage caWed by trespass 'at, .'Ay, £75,. About a mile. arid a.half offenc. ini? was damaged. ' -‘.‘Thev mifst*have been busy to have damaged a mile and a half of fencing, . suWy I” said ;h‘s Worship.- , Plaintiff said that the fences generally. iyWe knocked about Th T°plv to Mr Joyce, plaintiff said that the farm, was four miles by road

‘faith his own farm, and the same dis. ii.m_e via the Bell,Hill tram. The farm lie occupied Was owned by. Mr ’•Nyberg,- and was Tehcfed by. the I‘afifer 'htidiit two years ago. iPr.br to-being teheed, t‘he land Was overrun by Wild cattle. He did not know that any of tne'cattle were .'fenced'in. No ijate was 'put in. He did ho’t khbw ’that a number of wild bulls had' been shot. He could not say whether bulls were owned by Mallinson. dr 'others. He saw about six bulls, but none of them, were earmarked. These disappeared afterChamberlain’s muster in April -last. The bulls were not in and out of the fences all the time. He ‘ bought 18 heifers at the Rotomanu sale in March 1924. They were from 18 months to two years old, and were Canterbury cattle. The other 14 cattle were reared by plaintiff at Rotomanu. All the cattle were, put oil the farm about April, 1924. The fence, was taken down opposite tell Hill road to get the cat. tie in. The fence was then replace;! and had • bpen k-fept in repair since. Wire .‘was placed over a creek betwe&n February and -March; 1824, by tiff, ’without assistance. He secured the wire from his farm at Rotomanu and trm sported' it on horseback. ■ He inspected the whole of the fencing on two or three days per week. He did. hot go ■around very often' afteY the fencing was all attended to. Nyberg had not- put wires across the creeks wheh.the fencing was done originally, and this was'done by plaintiff. ' A f ’felan of Hie locality was put in by Mr Joyce, ’blit plaintiff said that the fences shown on it did not seem to ba l ight.' •‘LAUGHED AT HIM. lJ Replying to further questions.by Mr Joyce,.plaintiff. Said that he had had life iiouble with-.the fences tor.three-or lour months prior to April last., -. A ine ; went through part of. the land ’just befoie the ca'ttl'e were put ih. A big'fire occurred just before iJlimtma:; 1124. In hebruaiy, 1925, grass seed was sown on the flat’‘by plaintiff and had all fbine up. NybA'g sowed gr-ss on the terraces. Plaintiff did hot know that quite *a number of Canterbury cattle iiacl died after eating fern.

Oh March .27, M-iißihson told’plain, tiff that six of the ’latter ’s ••ckt'tte were out of tiie paddock. On that day Bub Cnambarlam was carrying a title. Hlaintiii went along and found the cattle, were , insiue tne paddock wito. 10 others, thete being lb in one mob., •Thei'S -were 16 in aiioiher ino-b. I'rom 2uo to 300. acres were in bitsh in scattered* patches. Between bO and 100 acres weie swampy. He found thrfee dead cattle there, but they were lying on hard patches. .There was no sign of a Mi-iiggle. He had seen cattle lie down on tne road and d.e a few minutes after being “dogged.” The cattle were in the-best of condition. He took two men, W. Vallance and W. Larkin, front 'Rotomanu. to examine the dead cattie on April 23. If the defendants had dome to him on the matter he would not /have proceeded with the action in Coiut,. but they ignored him/ The land was still in charge of plaintiff, and there weie 18 cattle on it. He bought nine them at Coal Creek about a month ago.

In answer to Mr McCarthy, plaintiff said he had given hoboay permissioh to enter his land. ' He gave Mrs Cnamberlain notice to remove her cattle. There were then 20, but a month later there were ’/O. Some of them were branded. He found lo&s on the fence, which kept the wires ‘down, enabling cuttie to walk in and out. He put out as many as he could and replaced the fence. He told John Cham-, beilain that there Were more cattle in' than when he first wrote, but ‘Chamber! aiii laughed at him a*nd told him he could do nothing. Chamberlain’s cattle were a regular pest and were on everybody’s property. William. Arthur, Calwell, police constable, stationed at Otira, s’aid that he accompanied Ryhn to -Ruru, and there saw'Robert Chamberlain, who said that he had taken their own cattle from .Ryan’s paddock and had used a number of Ryan’s cattle as decoys. He isaid he returned Ryan’s : cattle afterusing them, and saw no damage done to them. He further said that Mallins'o'n was working with him and that Mallinson had . purchased thirteen, head of cattle, from him and taken them away. Mallinson took no other cattle away. Witness did not ask Chamberlain whether he had authority to remove cattle, but Ryan did. Chamberlain said, “I don’t think' so,” but later, in his mother’s presence, the same question was again asked, and Mrs Chamberlain then said that authority .had been given 12 months previously. She tolrl witness, that 'she had not employed Mallinson to drive the cattle from Ryan’s paddock, but that she paid him £1 for one day’s work. •Chamberlain said they shifted their own stock from Ryan’s to their own paddock. They took Ryan’s stock to a yard and later returned them to his paddock. In reply to. Mr Joyce, witness said he did imt know on wnose land the yard was situated. . , Wihiam Vallance, farmer, of Ruru, said he accompanied Ryan to the latter’s farm at his request to inspect some heifers. He aid so, and hist saw two live heifers, and then four aead ones. He examined the four dead animals. One of them had fallen down a bank about folir yards long with a drop of three feet. At the top of the hill was hair on a rock, showing that the heifer had struck the rock before going. over the bani<._ The heifer’s heck was broken. The bank was not particularly dangerous, under ordinary circumstances. Two heifers were 15 to 20 chains apart, and two others about half a mile away. Nothing much wrong could be seen about two of the heifers, but bleed was hear the bodies. All the animals were in very good condition, and one v. as within a mouth or six weeks of calving.. The fences had be'en tampered with, and had been let down at the bottom of a little terrace. A log was holding down the fence, to act as a gate. The log must have been paced there. At another place the wires had been replaced, by fresh staples. The general condition of the fences otherwise seemed to be good. Ryan and Larkin accompanied witness. The visit was made on April’ 29. The heifers had been dead from-seven to ten days, in his opinion. < 'Replying to Mr Joyce, witness said he examined about half a mile of fane ing, but did not examine that between Ryan’s and Chamberlain’s ground. Judging by the tracks, the cattle had come fiom Hart’s land into Ryan’s. He did not kn'ow whose cattle wore pasturing on Hart’s land. William Larkin, farmer, Rotomann said he accompanied Vallance. One heifer had been dead four or five davs ; its neck was apparently broken. Another had toen dead, in his opinion, 14 days. He could not say what caused the death of the heifers. He had been farming all his life. They examined the fence, between Hart’s and Ryan’s land. The dead cattle ab"nt 20 chains to half a mile from Hart’s boundary. He did rot know whose cattle were on Hart’s land. A PUZZLING PLAN. A plan of the locality was shown to witness, biit he could not follow it, and

drew one himself for the benefit of his Honor to explain the position of a tram' li'ne. ■ . >• . -. •'Recalled,.'Constable Cal we'll statdd that the t ; ram 'line was fenced on both sides’ nearly'all thd'way.’ Chamberlain and -Ryan were bn brie : side. ; Thb cattle ’would -have 16 be driven on ’to'the tfh’m 'line T/bm ••'feyan’s 'lrth'd in to reach Chamberlain’s.

His Honor said that the plaintiff had not explained the locality. Apparently, he (the Judge), was expected to know till .-a'bb'ut :'i ; t, hlthoiigh he had never ’se-efi the/iplitde. ■ ‘‘i suppose Wfe will : hav'e''fti do’-the best we’ nah;” he remarked resignedly. “Perhaps another, witness - may . know something about,, it.” He added that the only plan produced had bear put in by defendant’s counsel..

Jack Ryhn, farmer, Rotomanu, brother of the plaintiff, said lie inspected the latter’s farm -and -found four dead cattle. One appeared to 'ha\e been worried by dogs. The fences were in first-class order, except in two places, where tuey had been /interfered with. Tne plan of the locality was. also, submitted to 'witness; Who said that he was hot ‘ quite clear about it; “I think I had better adjourn the case until some ; intelligent, person makes a- survey of the locality!” interjected His Honor. , ■ . After further puzzling over the was still uncertain. liis Honor asked whether it were : possible' to have a survey made. lie was being left to grope in the dark as to where the boundary fences wei'e.

The assistance of .a witness for the defence, George Mallinson, who drew the plan was obtained, and he said that Hart’s land was on the same side of the tram as that of Ryan and Chamberlain. . v • “’.lhank you very much,” said His Honor, “I have got it at last!” Resuming his evidence, Ryan said that he inspected the farm on April 29. He examined the fenqe along the Bell Hill road and along the tramway, also between his brother’s place and Chamberlain’s, but saw no breaks. The fence on Hart’s boundary had been interfered with. Harf had no fences at all. In witness’s opinion, the ca.ttle died from exhaustion. .He was not aware Jhat a number of cattle had died through eating fern! Jack McMillan, farmer; Rotomanu, said he also inspected Ryan's farm at the latter’s request, on Sunday, May 3. They found a dead h'eiter, lyiilg against a stump. There was a fair amount of blood about. Ap-

parently the heifer had been fighting, dogs; Her right ear was almost torn off and the faft ear was also \ damaged. i- They went on further and found three, cattle, which were driven along to witness’s section. The wires were taken down to get the . cattle out. The fence was in good condition. Witness knew Mallinson, who had usually a; number’ of dogs with him. He had no control at aj over, his dogs. . Once he put them on to a beast, Mallinson never knew when he would get them off. Mr Joyce objected that there was no : evidence that Mallinson was an agent, but this was .'overruled bv His Honor, who referred to Mrs Chamberlain’s payment of £1 to Malil'inson; JOKING ABOUT DOGS Witriessj in reply to Mr Joyce, said lie had known Mallinson over three years.,- He had heard that MMI inson had been a drover for 30. years or more. Mallinson made , a -joke hof the fact that he could not. «get, his dogs off a beast when he put them on. He had heard .Mallinson laugh over the fa.ct that his dogs had bitten the ear off a milking 'cow. John. McDonald, farmer, Bell H" said that Ryan and Mahincon ■ met in his hut and Ryan accused Mallinson of. “dogging” cattle on his property. Mallinson admitted tne charge. Witness then walked away. Mallinson’s dogs were not under control. Mallinson had often told w.tness that when his dogs broke away, he could do nothing with them. He joked about the matter. In Lie opinion of 'witness, Mallinson’s dogs would tear a cow to piece's. He had never seen Mallinson working wnn dogs on a chain, but had seen him mustering at Bell Hill with six dogs, none of them being oa .a chain. Mallinson was then mustering his own cattle.

“And they did not tear the cattle to pie.es?”. asked His Honor. “No,” “Then the suggestion is that the dogs are taught to respect their owner’s brands?” said His Honor smilingly. Arthur Robinson, junfar, Te Kinga, said that on Easter Saturday a man named Smith told him at iVloana that a cow was bogged, but did not know who it belonged to. He went out, and. Bob Chamberlain told him that Mallinson’s dogs had chased the cow, which became bogged. Witness found the cow on Easter Sunday, its ears all .torn to pieces. The cow had been running near Ryan’s place. Chamberlain said the clogs chased the cow on Good Friday, April 10. .The cow was found four or nve chains away from Ryan’s place. Arhtur Robinson, senior, manager of the Te Kinga Land and Timber Company, said his son found a cow belonging to the Company, and it was shot on the instructions of witness. The next night he was informed by the sons of Mrs Chamberlain that she would give him a cow to replace the one. bogged. At the same time, witness bought a steer from the Chamberlains.

“Did Mrs Chamberlain give you a cow out of kindness, because you had lost one?” enquired His Honor, sarcastically. “How awfully kiiiu of her! Did the boys say their mother was simply a charitable lady who was giving cows away?”’ —No. “Did they say anything else?”— No.

“That will do, thank you. No doubt Mr Robinson knows quite well why she did it, but he won’t say.” Alphonse Weaver, employee of ths National Mortgage Co., said that he valued Ryan's stock at £B. per head. When they came into profit they would be worth £lO per head. He did not know what effect the eating of fern had on cattle. This closed the case for the plain tiff, and the Court adjourned al. 9.15 p.m. CASE FOR DEFENCE. Opening the case for the defence when the Court resumed to-day, Mr Joyce said that the whole of the plaintiff's case appeared to be a condemna. tion of Mallinson’s dogs. He subinit--ted that the question of trespass d d not show that the plaintiff had sustained the slightest damage. It was proposed to show that Mallinson had bought some of Chamberlain’s bullocks which were on Ryan’s land, and in order to get them out it was necessary to let down the fences. Authority to do th’s had, it was claimed, been given by Ryan.,in 1924. The “dogging’’ had nothing to do with the death of the heifers, which was due to eating fern. After the cattle were driven out it was found that a number of Ryan s cattle were also out. These were rein I‘ned. am 1 Fl’e fence' renlaced. r , z>p-.. f r e ATallinscu. fanner, Kopara-. -said he had resided there about 50

yeafs. During the whole, of that period 'he'had been 1 droving ;and using dogs.- He ran between 600.'‘and -700 ■dkttlo at Kopara, <and ihfid driven cat r 'tle all''over the 'Coast., He _• mustered "fdi’ various farmers'and'had four dogs. were “nice; .. qi!ie.t, ' Working dogs.” His daughter'often the "dogs to bring i'ii'-'the cow.s. - He was engaged to mustef’feattie for the Chamberlains and was paißrior the first day. Nothing was said about further paymerits, ’*as he. .bought the * cattle after lie • stricttb muster 1 in 'April, .-'but /did - not know the exafet date.” The plan diaWn tip iind submitted by him was correct. He found the fences down along the tramline in four places. Four of Mis Chamberlain’s sons were with him,

and they tacked up the fence to pre- ■ vent the cattle getting on to the tramway from Ryan’s section. He was told that four bullocks were on Ryan s land and entered from the tram ’linQHe lia-d two dogs with him. He could not work with all his four dogs at once. The bullocks would .. not move for the dogs, so witness went in, called the dogs off and got the bullocks out himself. The bullocks went towards a-break in th‘e fence on Chamberlain s boundary and were helped through. Some of‘Ryan’s cattle also got through the break. . The. fence was then -put up bv either Edison or Robert Chamberlain, . The cattle were . not “dogged ® and were not distressed. They only walked 'about half ,a mile at the most. ” Two out of the four bullocks went b.lck a day or two later, and witness retprn-ed for them. -Ryan s cattle veie. all small heifers. Canterbury heifers did not do well on Coast land, such as Ryan’s? It was fern and bracken ground, except for patches of bush. Native cattle, thrived on such land. Prior to the muster, tvitness had seen some of Ryan’s cattle out of the paddocks. The Chamberlains stated that the cattle got out through breaks in the fence made by bulls. Parfitt got three ; trucks of cattle from Christchurch four years ago, and lost 14 out of 25 after putting them on fern coun. try after a"fire had gone through it. There were signs on Ryan’s- land, that a, fire had gone.- through the paddock, and there was no grass. Ryan told witness that some of his cattle were dead three or four weeks after the muster.

He showed two dead beasts to witness; there were- no marks visible on them. 'Witness was satisfied that death was caused by eating fern, lie arranged to go. later on a Thursday to help Ryan to put some of his cattle into the paddock again, but Ryan did not turn up. flp and Nyberg worked sowing grass seed in the vicinity for six or seven days a fortnight after 'the muster, but did not see any more dead cattle. On a later occasion, however, .witness saw ’two more dead cattle, which must have died since the grass seed was put in. The dead battle .were on ’hard, dry groilnd,- and lie would not expect to find cattle on such ground if they had been driven by dogs. Witness had lost imported cattle himself through eating fern after fires. He saw three of Ryan’s cattle out on the Kotuku road on June 13, three or four miles from where they were running. His brother was with him at the time. • There was a mob,of about 30 cattle on the road. A. good many people, including himself, owned cattle which were wandering around the district. The creeks were not fenced at the time of the muster and a horse could be ridden underneath the wires. JUDGE’S ENQUIRY.

Replying to Mr McCarthy, witness said that) Hart's place wa.s not fenced. Everybody’s . stock was wandering arouiid there. He had seen I’yan’s cattle on the tramline; but hot on Hart’s land. When cattle died after eating fern, it was found in their stomachs like flax. They could not digest it.

“Have, you ever seen cows who died after eating fern suffering from earache Mid torn ears?” asked his Honcr,

“No,” replied witness. He was aware that the Te Kinga Laud and Timber Co. had imported stock from Christchurch for years. Their land was river flat, and there was no iei'ii on it. Fern was found on the terraces and in the rod pine country. Witness was cross-examined at some

length regarding different kinds of ea.r, marks. He thought Ryan’s mark was on the right ear. Some brands took away half the. ear. “It is wonderful what experts can

do,” remarked His Honor. Robert Joseph Chamberlain said he knew Ryan s cattle when ne saw them, borne oi Ryan s lences. were broken. He saw several of Ryan s cattie on too tiam line, ne corruoorated luallinson's eviuen’ce regarding tne muster. There v»eie no indications., that Ryan’s dead cattle, had ueeii worried by dogs. Witness cud not Know what caused their death. On May 18 witness saw seven cattle out of Ryan's paddock and three in but he did ‘not ten Ryan. The bullocks were “a bit flash,” but once they \.<re started moving they were all right. Mustering stock was not a particularly easy job. Witness denied that Ryan’s cattle were taken out'lor use as decoys. He told Constable Calwell that Ryan’s cattle were used as decoys, but lie did not understand at the time what the constable meant by aecoys. Ryan’s cattle were not taken out; they simply walked out. The muster took place in March. Mr McCarthy said that Mallinson had put tne date as April.

joun Robert Cliamoerlain, loco, driver for tne Lake Brunner Sawmilling Company, said ins brother Emil assisted aim on the loco. Tney made daily trips along the tram line. The fences uere down in several places, and had been, off ana on, for twelve months. He had seen Ryan's cattle on tne tram line, botn beiore and after the muster. They were not with any ether cattle. The loco, ran into a moo of them one morning. Witness described the mu'steriiig operations, in which he also took part, his evidence being similar to that of Mallinson. The latter’s dogs did not interfere with Ryan’s cattle. Several other people had dogs in the vicinity. He saw one ol the dead cattle, and considered that death was due to eating tern. The animal was “pretty well gone,” having been dead aoout three months. Witness saw traces of what looked very much like fern in the animal's paunch. The buiiocks gave some trouble before they could be mustered, as they were fairly wild. Witness had not heard of Ryan missing stock before last February. The muster took place about the middle of March. ” Questioned by his Honor, witness altered his estimate to the middle of April.

Edison Chamberlain—according to. Mr Joyce, “called after the famous inventor”—said that he was also a. loco, driver. He had seen Ryan’s cattle wandering loose in May, 1925, but none before that. He also gave similar evidence legarding the- mustering operations, but could not swear regarding the date on which they occurred. Alter Ryan's cattie were returned to tie paddock, witness stapled the fence amh left it in good order. Cattle could get out under the fences at the creeks. Wild bulls roaming the locality got into Ryan’s jiaddock and damaged the fences, in witness’s opinion. He did not know tie value of Ryan’s cattle. He had not noticej any fern on the

Te Kinga Land and Timber Co.’s area. He had not heard of Ryan’s stock being missed prior to ’Febi'uary, -1925. 'I’Wo dogs were put on to muster tho 'bullocks, which iVeto finally rounded ! up after Vivo hoiii's’ 'Work. 1 ' TEmil Chamberlain, .’tfolleymah on the R’utu tram line, said he had seen seven of Ryan’s cattle oh the hue in February. The loco ran into one of them. He kept no date at .till of the muster. He had ‘ noticed breaksMn Ryan’s fence, and considered ’that -the damage had .'bden done by wilJ bulls, agtiihs't, which! shooting 'op'era’tidhs l ' were' 'bfe'ing ’ 'caYriOd on. He had not actually seen bulls entering Ryan’s land. John Scott, bushman, Bell iiill, stated that he resided at Ruru some m'onths ago. 'On February 22 he saw five of Ryan’o cattle on the tram line. He bought a cow from Ryan, . ■and therefore recognised the earmark on the cattle. The mark was on the left ear. •• -On May 18, he saw eight or nine of Ryan’s cattle at Billygoat Flat. He' had seen one dog aitbr cattle at the Flat, and could hear another dog. Ryan’s fences were not cattle-proof "at thd- creeks. Witness paid Ryan £5 for the cow eight or nine months ago.’ The cow had calved and was milking. The rest of Ryan’s cattle were of similar quality- : ' ■ .Gilbert Connor, yardman at Ruru, said that Ryan’s land was properly fenced all around, except at one place on the Bell Hill i‘bad. The creeks were only small, but excavations made them deeper. He thought cattle could get through the fences there. He saw seven of . Ryan's r heifers at Billygoat Flat on May 18, i from 15 to 20 chains from Ryan’s 1 fence. Witness recognised the mark . on the left ear, which was a hole in ’ the ear and a piece taken right out. ; The mark was the same, on the cattle i in Ryan’s paddock. That was the ; only occasion he had seen Ryan’s ■ cattle out.

Henry Ween ink, retired drover, living at Greymouth, said he had been- connected with cattle for 41 years, 21 years in the Rotomanu -district. He considered that Malhnson’s dogs were suitable for cattle and sheep; they were not ferocious. He had never heard of dogs killing cattß. Dog's sometimes gave cattle “a rough time’.’ to get them out of the fetish, but he had never seen a beast -die as a result of the treatment. He saiv four dead cattle at Ryan’s on May 19, but they were too much composed to examine thoroughly. There were no visible marks of “dogging,” and he did not think they had been chased by dogs. They were on dry land and not in swamps, where -cattle usually made for if chased by dogs. He had heard of Parfitt’s cattle dying after eating fern. The Stock Inspector gave that as the cause of death. This closed defendant’s case.

Both counsel stated that the case was one of fact, and did not address His Honour. The latter stated that he wished to read the evidence, and would give his decision at noon. JUDGMENT FOR PLAINTIFF. In giving judgment, his Honor reviewed the evidence at length. He stated that plaintiff in February, 1923, by letter, gave defendant leave to lower his fences and take out her own cattle, fourteen days were allowed to do this, and, at the request of defendant, the period was extended another fourteen days, which expired on March 29. Plaintiff had acted reasonably, but defendant did not exercise her privilege . within the time given, and thereaftc cleraly became a trespasser. Fully 12 months afterwards, according to the admissions made by her sons and her employee, they entered plaintiff’s land and interfered with his fences, which threw the onus upon defendant ti establish that no damage was caused to plaintiff’s property or cattle. There v.as considerable conflict of evidence. Plaintiff throughout had acted reasonably, sensibly and moderately. Heads could not be counted in such a case, and one had to do his best, having regard to the credibility of the evidence before him. He was much impressed by the simplicity and honesty of the plaintiff in his evidence. He might have exaggerated the damage caused, but that was not surprising. Plaintiff’s evidence was supported on many points by his brother, and by McMillan, Larkin and Vallance. He said that before putting his heifers into tho “paddock in April, 1924, he repaired the fences, giving special attention to tho creeks. On the other hand, a number of defendant’s witnesses said that the fences were not in good condition. Oneof them, said that the fences were cattle-proof except at one place on the Bell Hill road, and that cattle might be able to get through at the creeks. 'The absurd story of Mallinson that, he could ride a horse under the fence wires at the creeks was not corroborated; it was a

‘PREPOSTEROUS EXAGGERATION’ and led him to discount the rest of Mallinson’s evidence. The opinions of witnesses, in a'case whei£ both sides were inflamed, to a certain extent were subject to the human factor. It had been said that, for the best part of a year, none of the plaintiff's cattle had been missed, but tney all suddenly got away’ in April this year, except those found dead. If the lences were as bad as defendant’s witnesses would have the Court believe, it was remarkable that the cattle did not get away sooner. The Chamberlains had seen plaintiff’s cattle astray on one occasion. Assuming, in defendant’s favour, that certain of the plaintiff’s cattle had got out, plaintiff had stated they were all in the paddock later. The iierence would therefore be drawn that the fences were cattle-proof. Freni the Court’s point of view, the four Chamberlain boys could be regarded as one witness. They had naturally talked the matter over at home. They differed regarding the date of the muster, however. Ulis obviously took place, at Easter time, and should have been easy to remember. ’Their mistake might be genuine. There were not many witnesses on either side who were entirely independent. One of them appeared, to be Robinson, junior. Why did Mrs Chamberlain compensate the Te Kinga Land and Timber Co. for a cow, unless she was satisfied that the accident to that cow was the result of the action of her agents? Mallinson had admitted that he was “dogging” cattle. “Of course,” said his Honor, “Mallinson says that his dogs ar e really drawing room pets lut his friends ami neighbours gave a different account.” The fact remained that some of the cattle had been “dogged.” Plaintiff had to satisfy tlie Court that the damage to his cattle was the result of the actions of the defendant, but he could not, possibly be asked to prove that by eye-witness, es. Indirect circumstantial evidence was often more valuable than direct testimony. It was suggested by defendant that, the cattle died through 'eating fern. There had been no suggestion, however, that abortion was cans, ed in Parfitt’s cows by eating fern, nor did Parfitt’s 'cattle .show 'signs of a “mysterious disease of the ear.” Ryan’s cattle did show signs of abortion, and their ears had been torn. He attached no importance to the fern theorv, said His Honor, ami did not accept that -hypothesis. Plaintiff’s

case had not been so. clearly presented as. it might have been, and he might have gone to the expense of providing a proper plan of the locality. Witnesses who were country folk were very often puzzled by plans, which, indeea, were puzzling to anybody. One- or two of the witnesses had been rather stupid about the plan. That had the value, however, of showing that plaintiff s witnesses did not come to Court with a preconceived story. Their blunders over the- plan rather helped than hindered the Court in drawing conclusions. Referring to the question of damages for trespass, his Honor said that tlie occasion was not one for a heavy penally. What had been dohe by defendant had not been done in any contumacious spirit of trespass, and damages must, therefore, bo strict, ly limited. A,s to the dead cattle, he

would eliminate the heifer with the broken neck. In repaid to four other beasts that showed s-’gns of abortion, Im drew the inference that they d’o ’. "s a result of “dogging.” Three had been recovered alive, and this left 27 head. Plaintiff claimed £lO per Lead, but no doubt that was “over the mmlc.” There was no .very complete, evidence regarding market value. He wmild deduct 20 ■n.er pent and award £8 nep head for 27 heifers, a total r of £216. Plaintiff was entitled to some j

damages for trespass, and would be awarded 40/-, the usual nominal amount. If defendant employed Mai- '■/; lin'son and his “admirable dogs” to scour the country, some of the -miss- A ing cattle might yet be recovered. If so defendant would be entitled to keep them. Care; must be exercised in; such rounding up, however. Any disputes, r on the point could be referred to the Stock Inspector. Costs Would' be -.hl- . ...? lowed on the middle scale, with dis- ~ bursements and witnesses’-' expenses; /-> : Counsel would have to put tip with’ the inconvenience of the Judge arriv- \ ing in the middle of one day 'and leaving in the middle of the next. The ■sitting -had really occupied: not longer. . than one day, and therefore the sec- ; ond day’s costs would not be allowed,one day only being ‘counted. •