MAGISTRATE'S COURT.

Hawera & Normanby Star, Volume LXXI, Issue LXVIII, 21 June 1912, Page 6

MAGISTRATE'S COURT.

MANAIA.

THE GRAZING CASE

BARLEYMAN v. INNES

JUDGMENT FOR INNES FOR £67

AND COSTS

Mr Kenrick, S.M., gave judgment at Manaia on Wednesday in the above case. Mr Bennett appeared for plaintiff, \Y, J. Barleyuian, and Mr O'Dea. (instructed by Mr dump, Eltham) for dei'endunt, Norman Innes. His Worship gave judgment for Innes on -both claim (£-1 4s) and'counterclaim. On the latter he awarded £67 damages and costs amounting to £19 Bs, a total of £86 Bs. Mr Bennett gave formal notice of appeal, and. Air ODea asked tor security tor the same. His Worship fixed the costs of appeal at £20, and orderol security to be given for this as well as for the- judgment. In the course of his judgment the Magistrate said: Mr Bennett raised an objection— namely, that defendant had not filed a notice of intention to defend thS? claim. The facts are as follows: Defendant was served on Easter Saturday at Te Kuiti to appear at Manaia. He travelled as far as Eltham immediately after the holidays and saw his solicitor on the last day for filing the notice. His solicitor telegraphed the notice in the form of the Act to the Clerk of the Court at Manaia. He also filed sin application for leave to defend. I am of opinion such a telegraphed notice to the clerk i.s sufficient. In any case, I should havQ granted, leave to defend under the circumstances. With regard to the counterclaim, the first question for me to decrae is what the actual agreement was between the parties relative to grazing the bullocks. It is agreed that the- 42 bullocks were to be grazed by plaintiff, Barleyman, at 2s per week per head, and that they were ©n the laud between June 2S and August 31, 1911; but Harleyman. says he grazed the animals conditionally; that he did not take any riak or responsibility as to the animals, particularly as to getting out through defective fences. The defendant Innes denies there were any conditions mentioned or agreed to. The onus of proof is cast on Barleyman to .prove any special conditions he may set up. The agreement was made between th-s parties verbally and without witnesses. It is, therefore, a question of oath against oath, and as I can see nothing in the evidence from which I might reasonably infer such a condition hail been mentioned or agreed on, I | must hold it was an ordinary agreement to graze without any conditions save a week's notice to be given by cither party. Innes says it was to be a two weeks' notice, but this is not material, for Barleyman has only sued for one week. Barleyman has endeavored to show the bullock's died from disease, but he has altogether failed in this. I do not propose examining the evidence given in detail in my judgment further than to say the weight of evidence is undoubtedly in favor of Innes. Barleyman and his witnesses' evidence deals with the condition of the land and stock up to August 14, and subsequently to tlie first week in September. Innes' witnesses describe the land as being without grass sufficient to feed sheep, and none for cattle between August 14 and September 6, and they describe the bullocks as skin and bone. Barleyman does not deny that there may have been over 80 head of stock on the ]40 acres of kind during these winter months. One of Barleyman's witnesses says he took his horses from the land on August 21 in very poor condition-. The evidence proves, in my opinion, that 45 or 50 head of stock was quite as much as the land could carry at this time of the year. It is proved Innes lived some 14 miles away. Ho visited the stock once in August, when their condition was not good, and on Augu&t 24 was informed by a third party that" they were starving, lie then made arrangements, and removed his stock on August 31. On the evidence before me I find the following facts proved: (1) That Barleyman heavily overstocked this land during the winter months subsequent to Innes' bullocks being placed there, and that as a consequence of such overstocking Innes' bullocks were starving. (2) That when removing the bullocks on August 3], Innes was obliged to leave j two behind, they being too weak, owing to want of feed, to walk, and that they subsequently died. (3) That a third I bullock died on the Mangawhero road i from the same cause. That, there is no j direct evidence how it escaped, from the land further than that th« fences have been proved to be defective. (4> That a fourth bullock was found dead in a swamp on the land. (5) That a fifth bullock was found dead near a fence on the land, and that it was in very poor condition. (6) That a sixth was lost, and there is no evidence as | to what has become of it. (7) That Innes was aware during the time his bullocks v.-ere on the laud that the fences were defective in places. On all these findings I think Barleyman is legally liable, there being no special agreement proved by him. As an ordinary agister, he is liable for negligence and defective fences. Overstocking. his land subsequent to taking in Innes bullocks to the extent of causing deterioration or death is undoubted negligence, and it is <-leaily proved he has done both these things. It has been contended that post-mortems should have been made to prove starvation. I think it would be advisable in such cases, and would be the strongest evidence, but where the evidence is sufficiently strong without •it. the Court may h»ld it proved. In the present case the evidence is very strong of the very bad condition of *c land and cattle. Although here not referring to the many points raised by counsel. I have given them due consideration. I come to the conclusion "that the evidence proves that the uefactive fences and overstocking of the land subsequent to Innes' cattle being ■taken in are the cause of the loss and death of the six bullocks above refrred ■&o, and that this is negligence on the part of Barleyman for which he is liable. With regard to the damages, I find on the evidence before me that | the value of the six bulocks is £9 per head, and Innes is entitled to the cost ■(£1) of destroying the bullocks which died on the road. With regard to Innes' claim for extra feeding of the 36 surviving bullocks, owing to their poor ■condition, I think he is entitled to reicover a reasonable amount for extra Pending for a time. Otherwise they oiiav have died also. I. judge from the 'evidence £7 is a reasonable amount to •allow. The next item of the counter■claim by Innes is for general deterioration in working values and loss of service of these bullocks, for which lie •claims £25. Innes cannot claim for deterioration and for loss of service for the lost and dead ones, for he is allowtil their value, and in regard to the survivors it is proved they could not be used during the winter months, as bullock teams are not allowed on the roads then. Taking this into consideration, nvith the fact that £7 has been allowed miv extra feeding, the deterioration and loss of service could, not be very great ))V the time they might be worked ;*again, and I aPow the sum of £o as a Jivir and reasonable amount. I do not -{.How the chum for £4 for journeys in •connection with, the cattle. 'The journey would in any case have been made to bring the cattle away. With, t'egard to the £4 4s claim by Barley man in his statement of claim in lieu of notice, I <--amiot allow. 1 think limes was justiMii in t«king the cattle avvuv \vithout

notice, in view of the condition they were proved to be in.

My judgment, therefore, will be for Barleyman on his claim for the amount (£18), grazing, which Innes confessed for, with costs on that amount. On the counterclaim judgment is for Innes for £67, namely, 6 bullocks at £9 per head, £54; for extra feed, £7; for destroying bu'lock on road, £1; for deterioration and loss of .services, £5: together .with costs, the. total being £86 Bs. A FENCING DISPUTE. _ The defended case T. D. Bradford (Mr ODea) v. Frank Day (Mr Bennett) which in different phases has occupied j the attention of the Court at Manaia for several sittings, was before the Court again at Manaia on Wednesday. The plaintiff's case, as outlined by his counsel, Mr ODea, was that by aii order of the Court, dated January 20, 1912, it was ordered that a boundary fence be erected between the land of the defendant and that of the plaintiff on a line surveyed by Mr J. R. Stewart, licensed surveyor, the original fence not being on the true boundary,-. that, by the said order the work of erecting the fence and providing the necessary materials was to be let by contract, and the plaintiff Bradford was entrusted with the letting of the contract. The plaintiff duly called for tenders in the Star, and received two —one at £1 16s a chain, and one at £1 15s a chain. He accepted the lower tender. The length of the fence was 50 chains, the contract price being £87 10s, and the cost of advertising. 7s 6d—a total of £87 17s (id. The plamtiff sued to recover half this amount from Day, namely, £43 18s 9d.

The plaintiff Bradford in evidence described the fence as one of the best in the district. The fence had been erected strictly to specifications, so far as it reasonably could. Cross-examin-ed by Mr Bennett, plaintiff admitted that the fence adjoining a drain was a bit shaky. He didn't consider he should fil! up this drain, as it was on his own property, and was necessary for draining the land. He had worked for the contractor, Simmons, on wagesRobert Dunn, farmer, Auroa, said that he had inspected the fence, and considered there was not another' fence equal to it in material or workmanship on the Plains. Cross-examined by Mr Bennett, he did not consider it advisable to fill up tlie drain. Hugh Pa ton, farmer, Otakeho, gave similar evidence as to the character of the fence. He estimated hinau strainers to be worth 10s each, posts Is 6d each, and clearing the ground for the fence 6ft. wide at 5s a chain. The contract price per chain was not unreasonable.

George Murton, farmer, Auroa, gave similar evidence. He considered that if the drain were filled up the place would be sodden und the fence get into a worse state than at present. For the defence Mr Bennett called W. H. le Fleming, farmer, Otakeho, who considered the fence a good one except adjoining the drain. Adjoining the drain it could be pushed over. He considered £1 a chain ample for the work, and estimated strainers at 5s each, posts at Is, and the cost of clearing at Is per chain. Cross-ex-amined by Mr ODea, he considered that filling tip the drain would improve the fence. He could be quite willing to take on the work of clearing the line at Is a chain himself.

Johnston McCarty, farmer, Manaia, gave evidence .similar to that of the last witness, except that he estimated hinau strainers at 7s Gd each. Crossexamined by Mr ODea, he admitted that he had acted as arbitrator for Bradford in the early stages, but denied that he was now giving evidence for the other side because he had taken the "huff' with Bradford.

Edwin Hastie, farmer, Manaia, corroborated tin; previous witness. To the Magistrate: He considered that filling up the drain now would materially strengthen the fence, the workmanship in which was good. The case Had not finished when the court rose.