FARMERS IN COURT

Gisborne Times, Volume LX, Issue 9728, 11 June 1924, Page 6

FARMERS IN COURT

trouble over sheep

“MADE IT AS BAD AS HE COULD.”

The action- of si farmer in lmpound'«ino- a number of sheep because they bore Iris earmark that had been sent to the freezing works for billing by another farmer was the basis of a claim heard by. Mr. E. C. Levvey, S.M.j in the Magistrate's 'Court yesterday. The- claim., which was for £2O general damages for trespass m respect of goods, was made by Root. C. Miller, sheopl'armer, of Waimata, against J. Tomblcson. a sbcepfarmci also of that district. Mr. J. S. AVauf hop representor! the plaintiff and Mr J. Blair the defendant. In opening, Mr. Wauchop stated ' that apparently in ignorance that the sheep had been sold, Tomblcson drafted twenty from a mob belonging to Miller that had been sent to the •freezing works for killing. In August last year Miller had bought a line of ewes through Williams and Kettle from defendant’s son at Otoko. _ Ilie sheep were fattened and sent m to the works. On the road Tomblcson noticed a number of his own sheep among the flock, and later inspected the mob at the works, where he found 20 bearing his earmark. In an*interview with iMiller, the owner of- the sheep, defendant was told that the «hoep had been bought through Williams and Kettle at Otoko in August of last year. The next move was by Tomblcson, who went to the police, •ir-d Miller was requested to come into town and supply details _ regarding the sheep bought by him in August. This was done and the police wcic satisfied and declined to move further but Tomblcson then refused to allow the sheep to be removed until liis son returned from AAairoa. Connsci understood Tomblcson to say that the sheep sold by Ids son last August were “crooks’’ and could not be in the condition that the sheep in question were. An appointment was then made with two local auctioneers to ■adjudicate on the question. Ihe remainder of the line of ewes winch Miller had bought in August and also the 20 sheep defendant had impounded were assembled, but before the appointed time Tomblcson came up ami said it was all right and then left. The plaintiff had been put to considerable expense by Toinbleson’s high-handed action. The __ defence avou ld probably rely on the fact, that the sheep bore Tombleson’s earmark, but it would be shown that it was not the practice to re-mark sheep which had only been bought for fattening and killing. The defendant_ had claimed that the sheep were his and not his son’s, but had since admitted the sheep did belong to his son, although tliev bore his earmark. The Magistrate suggested that- a conference between the parties might produce an amicable settlement. A minute or so’s conversation sufficed •to show that a settlement was impossible. ■Continuing, Mr. Wauchop contended that the damages claimed were very reasonable, including Miller’s loss' of time, one arbitrator’s expenses. iand the mustering of the sheep and re-conditioning them after the detention. Where action was taken such as by Tomblesou, they were entitled to claim for much heavier general damages. The defendant had drafted the sheep- from a mob sent in by plaintiff anil had then called in the police. The men >at the works naturally had their ideas of the proceedings and doubtless would not bo overcareful whom they told. The Magistrate: l The inference seems obvious.

Counsel said it was riot until that morning that Tomblcson had admitted that the stock belonged to the plaintiff. Two letters had been written to Tomblcson, but in the same high-handed matter that lie had adopted throughout ho had ignored them. Robert C. Miller stated that lie delivered three lines of sheep, SOO or 900 in all, at the freezing works depot on January 28, The mob was drafted by him on the following day. While attending' the Ram Fair lie was approached by Tomblcson, who asked •questions regarding certain sheep of the- mob at the works having his earmarks. Witness said he explained that he- had bought them through Williams and Kettle and he thought they came from Otoko. Next day lie was requested to attend the police station and explain where lie got the sheep. After the interview, and an examination of the auctioneers’ books, the police were quite satisfied. "When Tomblesun asked why he did not earmark the slice]) witness said that lie replied that the sheep were to be fattened and killed and apart- from that Tomblcson's earmark prevented another mark being put on properly. However, Tomblesun was not satisfied arid said lie- desired his son to see the sheep. A subsequent examination by two local auctioneers was arranged, hut some time before the inspection was to be made Tomblesou came up, looked' over the sheep, and saief: “It’s all right- Miller, you can -put your earmark on now.” Cross-examined by Mr. Blair, witness said the marking cf the sheep had at first been delayed because, they were on the point of lambing. He knew it was his duty to mark all .sheep at shearing-time, but had ho marked the sheep over Tombleson’s mark it would have been indistinguishable. To have marked the other car would have meant ifeversing the mark, and wrongly indicating the sex. After shearing witness had branded the sheep with an oil mixture. It was reasonable, up to a. certain point, for the defendant to ask that the killing of the sheep should 'be delayed until those with his brand on; had been enquired into. After the explanation had been given, however, ho thought no further trouble should have boon caused. Further, witness said he liad agreed that the killing should bo postponed because he did not want the stigma attached to him of having “got away” with someone vise's fheep. Seine days after the defendant had agreed that the killing should proceed, but by this time the sheep wore not lit to kill and had to be re-conditioived.

Roy Vincent Cully, auctioneer for tho Gisborne Slieepfarmors’ F'-M. and M. Coy., stated that he examined tho sheep in the yards at the. freezing works and then expressed the opinion that there was no reason why culled sheep bought in August should not be in the condition of the sheep indicated. Arrangements were mail© for witness and Mr. Hine. another auctioneer, to visit Miller’s place at Waerenga-a-liikn and inspect the whole of the line of ewes bought in August. Tomblesou, however, was not present at the appointed time and witness was quite satisfied with the inispection. The defendant’s earmarly practically cut the ear in half ■and it was difficult to put another mark over it. He had considerable •experience with stock and knew that it was customary not to earmark sheep bought for fattening and killing; only breeding stock was re-mar kod. During August last year tho highest prices for ewes ranged from 13s to 20s and the line bought by Mr. Miller were - sold for 235.

Mr. Blair: Have you sent in your bill for £2 2s?—No. «

Tomblcson, interjecting : He’s waiting to get it out of me. The Magistrate: Mr. Blair, you might, call your client bo order. I have overheard several comments from him. I don’t- want to speak to him. personally, but if it happens again I will do so. Questioned further, witness stated that numerous lines of sheep passed through the saleyard half a dozen times and only had the original owner’s earmarks. This practice was not only followed by dealers, but also by farmers who were holding stock for sale. It would' be impossible for every owner to put on their mark, es-

pecially where the ear was out, as with Tombleson’s sheep. William Baird, sheepfarmer, stated that when sheep were bought by farmers or dealers to be held for a few months it was not customary to earmark them. Erroll O. Miller, plaintiff’s son, gave corroborative evidence in respect of his father’s testimony. Fer the defence Mr. Blair moved for a non-suit. The statement of claim alleged a trespass in respect of goods, but there was no evidence of this before the Court. No testimony had been adduced to show' that Miller had been deprived of the sheep, nor that any time they had left the possession of the freezing company, which were Miller’s bailees. Hie defence lay in the fact that Tomblesou did n'ot take the sheep. When he saw the sheep with his earmark m the yards, Tomblcson requested the freezing company to delay killing for , a . day or so: No doubt Miller had suffered some loss, hut ho was a good deal to blame as he had not earmarked the sheep. The Stock Act had been treated in a very light fashion. The Magistrate intimated that he would not decide- such a case on a technical point. Mr. Wauchop contended that the defendant, with liis agents, the police, had robbed plaintiff of possession of the sheep. Even after the police were satisfied and had declined to take action, defendant refused to allow the stock to be killed and segregated them from the rest of the mob. It was not until the sheep had been ranged on plaintiff s property with the rest of the ewes that yere bought that defendant had stated it was all right. No other man in the district would have acted as he did. His Worship said he was satisfied that the defendant had technically deprived the plaintiff of possession of the sheep. • , , . Air. Blair said that the trouble had arisen through the plaintiff ' not marking liis sheep- Defendant had seen the sheep with the. prim.a facie evidence of his ownership on them, and had taken the natural course of having the matter enquired into, fill any case the damages claimed were excessive and if His Worship found in favor of the plaintiff he submitted it should only be for a very small amount. The defendant, in evidence, stateed that he had seen sheep with his mark on going to the freezing works. After "going to the company’s office to see ft’ he could get the killing postponed he .then saw the plaintiff, who explained that the sheep had been bought in the yards in August last. Witness then made further enquiries, and, on the advice of his solicitor, Mr. Blair, went to the police. Miller at.that time, had not mentioned that lie thought the sheep had come from Otoko. otherwise he would have looked up his son’s sales. When he found that none of his own sheep had been sold to Miller he naturally thought there was something wrong. Witness went over to the yards with Constable Walden and made a further examination. He was quite willing to allow the sheep to be killed, but the constable Mould not allow it. After the sheep had been inspected the next day bv the plaintiff and the police, witness had ashed that the sheep ’be kept until liis son saw them. Finally an examination was made of the sheep in company with the others which had been bought at the same time, and witness was then satisfied. Owing to the proximity of tlieir properties there was a real risk of witness’ sheep straying on to plaintiff’s property. If witness made a mistake in going to the police he regretted it, but lie had not acted from vicious motives, but because be thought it was the correct thing to do. At no time had witness taken possession of the sheep. Cross-examined by Mr. Wauchop, witness said that when he went over to the works with Constable Walden, he drafted the sheep, and not the constable, because he was the only man who knew what lie was talking about. He- was satisfied that the sheep were his son’s. His son had his own registered ear-mark, but this wa-s not on the sheep. Witness' earmark was on the sheep, but lie had given his -permission to use the earmark. It had never occurred to him to make enquiries to see that the sheep were not- his son’s. Had lie been in plaintiff’s position lie would not have expected an apology, but would have apologised for not- marking th.e sheep. Ho did not think it likely that it had been suggested that the plaintiff had “pinched” the sheep, but ■ thought it very likely that the action had been brought out of pure spite. Henry John (Francis Tomblcson, son of the defendant, stated that lie had n sheep station at Otoko, and had permission to use his father’s mark on liis sheep. The Magistrate, said that the case was one for a decision on the question of equity. He was satisfied that defendant had stopped the sheep from, being killed at first, but. was then under an honest misapprehension. but after the police were satisfied lie should have withdrawn 1 his objections. He had obviously made the matter as bad as lie could arid, put the. plaintiff to a considerable amount of inconvenience. However, the case resolved itself into a question of damages and these he assessed at £B, and £f> 3s Gd costs.