DISTRICT COURT.

Hawera & Normanby Star, Volume XLII, Issue 7388, 14 February 1902, Page 2

DISTRICT COURT.

Thursday, February 10.

(Before His Honor Mr District Judge Kettle.) M'GARVIB V. JURY. This was a claim for damages for alleged trespass. The following special jury was sworn : Messrs A. Godfrey, P. Burr, R. P. Cole, and F. W. Brunette. Mr Burr was foreman.

Mr W. G. Malone, Stratford, for plaintiff, and Mr Barton (instructed by Mr Spence) for defendant. Mr Malone, in opening, said the husband of Mrs McGarvie rented a farm from the defendant at a rental of JSIOO per annum. Fifteen ttows were also leased to the defendant from plaintiff. He (plaintiff) entered into possession on the 6th September. Mrs McGarvie purchased from Mr Fantham cows, which were placed on tho husband's ! place. The husband milked the cows, and took the milk to the factory, receiving the profits. Five of the cows leased from defendant were no good for milking purposes, and defendant, saying the rent had fallen into arrear, asked plaintiff to go out. After an attempt to come to an arrangement, plaintiff agreed to go out when he could get another place. Subsequently, defendant arrived on the scene with another tenant, and told plaintiff he whs going to detain five of the cows (Mrs McGarvie's) in payment of the rent. Mrs MoGarvie, who had got the cows on terms, went to see Mr Fantham, who told her defendant could not touch the cows. The plaintiff alleged that there had been no legal distraint. Mrs McGarvie had the cows removed to Mr Boyles' farm, and defendant then made up his mini to take the law into his own hands. He went with a posse of men to remove the animals, but failed. Later he again went with some men, but after a " tough go " was again

foiled. On the Tuesday following, by a 11 slim " movement, defendant got on to Boyles ' place and secured the cattle. After keeping them for eight days, he found out the error of his ways, and returned the cattle.

D. E. Fantham, of the Egmont Farmers' Union, Stiatford branch, said he sold Mrs McGarvie some cows, receiving bills. Defendant called later to find out who the cows belonged to, and was informed that they were Mrs McGarvie'e.

Margaret McGarvie, (he plaintiff, said she put cows purchased from Mr Fantham on her husband's place. On 31st December she removed them to Boyles', and on 3rd January she heard they had been interfered with by

Mr Jury. She warned him, but on the 4th defendant, with some men and Constables Ryan and Bleasel, arrived at Boyles', and despite witness' protestations and resistance tried to get the cattle away. He was unsuccessful then, but eventually got the cows. After demand, the cattle were returned some days later. On the 4th, while the attempt was being made to remove the cattle, Cuthbertson, employed by Jury, assaulted witness by forcibly wrenching her hands off a rope with which a gate was secured.

To Mr Barton : Witness had hoard that defendant had turned Boyles out of a place without a day's notice, but she did not know Boyles' feeling towards Jury, Geotgo Boyles, farmer, said on 31st December, cattle belonging to Mrs McGarvie had been put on his place. Defendant tried to get the cows, but witness declined to give them up without authority. Later, on two occasions, defendant tried to drive the cattle off, but was unsuccessful. Witness saw Cuthbertson wrench Mrs MeGavvi&'s hands off the rope. To Mr Barton : Witness had commenced an action for damages against Jury. Witness had not been satisfied with the manner in which Jury had

treated him in regard to a milking on shares contraot. He was not actuated by spite in allowing the McGarvies to put their cattle on his property. Mrs Boyles, wife of the previous witness, gave evidence partially corroborative of that of her husband. Constable Bleasel, of Stratford, said he saw Jury try to remove the cows from Boyles' place. Boyles said they belonged to Mrs McGarvie, but Jury uusuccessfully tried to get them away. Constable Eyan, in charge at Stratford, gave evidence in the main similar to that of Mrs McGarvie. He did not see Mrs McGarvie's hands forcibly removed from a gate on Boyles' place by an employee of Jury's. Mr Barton applied for a non-suit, on the ground that although the cattle were agisted, the agistment was not for hire, and they could therefore be distrained for rent. His Honor said it would be as well to reserve argument till the facts had been placed before the jury. Mr Barton, in addressing the jury, said Mr McGarvie did not pay his rent for the land belonging to Mr Jury, and cattle belonging to his wife were depastured on the land. Plaintiff saw Mr Jury going amongst the stock, and taking notes, and must have known that it was his intention to distrain, yet she made no objection. The plaintiff had, as a matter of fact, never protested against the seizure on the ground that they were her property until after the cattle had oeen seized. The defendant returned the cows before the action was commenced, and that should have been sufficient. But it would seem that plaintiff was only desirous of making money out of the defendant. As to evidence of assault, he thought it ridiculous to ask a jury to decide upon such a trivial matter. In any event, it was not a case, supposing the Judge decided against defendant on the law points, in which the jury would, he thought, give any heavy damages. Counsel would ask His Honor to direct that the cattle having been returned there was no claim for damages. Special damages were not claimed, and as to the assault it was a very trivial matter. Maurice Jury, the defendant, stated that Mr McGarvie did not pay the quarter's rent due on Ist of Deo. The lease included 15 cows. Witness saw Mr McGarvie two or three days' after Mr McGarvie got his milk cheque, but did not get payment. Witness said if McGarvie could not pay the rent he would have to leave, and he (McGarvie) said he would do so. Later, he saw Mr and Mrs McGarvie at Mr Spence's office, and said the rent would have to be paid. They said they could not nor would not pay. He got a warrant, and next morning went up to McGarvie's. He read the warrant, Mrs McGarvie being present. He showed Mr McGarvie a list of the colors and brands of the cattle he had seized. He told him that Hopkins was to be left in charge. Hopkins.took charge, but left next morning, saying he could not get food, and didn't know whether he was goiog to be paid. Witness went to see if the cattle were still on the farm, but they were gone. He heard they were on Boyles', and went up to try and get them, but did not succeed. He made a second unsuccessful attempt. On the second attempt, Cuthbertson tried to untie a rope, but never pulled Mrs McGarvie's hands off

the rope. Later, with five men, he went up and got the cows. He would swear he did not receive letter from Mr Malone until after he seized the cattle.

To Mr Malone : Hopkins, Chard, and witness went out to McGarvie's.

To His Honor : It might have been that there was a double-barrelled arrangement ; that witness would hand over the farm to Mr Chard, and that Mr Hopkins would look after the farm for Chard and act as bailiff at the same time. To Mr Malone: Mrs McGarvie was milking when witness read the warrant. Witness may have said something to Hopkins to the effect that he had made a fool of himself by saying to Constable Bleasel that he was no bailiff. After the cows had been scoured by defendant, Mr Chard had the milk from them. Charles Chard said he agreed on the 31st December to take Jury's farm, which wbh then occupied by McGarvie 's. In presence of witness, Jury asked Hopkins to go up and take charge of the cows. Witness thought the cows referred to were those at MoGarvie's. Next day witness went up with Hopkins and Jury, and Jury took the brands of five cows. Hopkins remained behind, and witness considered he (Hopkina) was to look after the five cows and the cows to go to witness. .

Allen Cuthbertspn.. fojAjrrsafd on 4th January ie^was present with Jury in AB<<tf tempt to regain some cattle from tho McGarvie's. There was no truth in Mrs McGarvie's statement that he (witness) had violently jerked her hands off a rope at one of the gates. Ernest W. Hopkins said when he went to McGarvie's with Jury he assisted the latter to take a note of the brands of four or five fine heifers. Witness intended going back by the milk-cart, but'missed it, and was invited to breakfast. He had no idea of being a bailiff, and was surprised when he found the warrant in his pocket. He

did not know how it got there. To His Honor : He had never been asked to act as bailiff. (Left sitting.)