A VANISHED HERD.

Mataura Ensign, Issue 922, 23 July 1901, Page 2

A VANISHED HERD.

PECULIAR CATTLE DISPUTE. A. case presenting most unusual features was heard at the Gore Court yesterday, before Mr McCarthy, S.M. This was an action by liobert Dynes (Pukerau) to recover the value of 14 steers at £7 5s each, and three heifers at ia 5s each (total £150), from W. Scoullar (Pukerau). Defendant counter claimed £0 as damages to his turnips by plaintiff's cattle.— Mr heave for plaintiff and Mr Bowler for defendant. In oponing the case for plaintiff, Mr Neave said the plaintiff was a farmer and dealer in stock, and defendant was a farmer. D-fen-daut'j farm at Pukerau adjoined one of plaintiffs farms. In May last plaintiff let between 150 and 200 cattle on the property adjoining defendant's. Defendant's turnip paudock was nearest the field where the cattle were grazing, and a number of iliu cattle were in the habit of jumping the feticj into defendant's turnips. Defendant, on several occasions, drove the cattle back to plaintiff's paddock, and in that connection defendant claimed damages which plaintiff did not dispute. On May 27 defendant went to p aintiff's house to inform him that the cat Jo were trespassing, and said if it happened again he would have to impound them. On the following Thursday defendant sent a a similar message to plaintiff. Early on the following morning defendant found some 17 or 18 head of cattle on the turnips, and took steps to drive them oil. He had driven them a mile or a mile and a half, and placed them m another paddock of his own. The cattle were put in this pound on the morning of May 61. No notice was given to plaintiff of this, and plaintiff was unable through other business to take them out of the pound. On the following Friday (a week after the impounding) plaintiff wenf to defendant and asked him to deliver up the cattle. Defendant took no notice of this request and said, if you were a gentleman you would pav the damages." Plaintiff said he was willing to pay damages assessed by arbitration, but he wanted his cattle. Plaintiff could find no trace of the cattle. After having been written to by plaintiff's legal advisers (Messrs Gascoigne and Solomon), defendant explained the circumstances under which he had placed the cattle under lock and key in his ten-acre paddock, and stated that he intended to have them driven to the pound, but they were missing on the Sunday morning. Counsel contended that defendant did impound the cattle by placing them in his ten-acre paddock, and that he did not give plaintiff notice of the impounding He knew whose cattle they were, and that it was his duty to properly tend them, which counsel contended was not done. It was defendant's duty within 48 hours to drive the cattle to the nearest pound, and not having followed out the procedure defined by the Act he rendered himself liable as bailee and responsible for the value of the cattle. In answer to Mr Solomon's letter, defendant said he intended to dme the cattle to the pound, but when his man went for them they were not there. Defendant further stated that plaintiff had been seen driving cattle out of the paddock. At law defendant was a bailee at his own risk—tjie terms of the Act were imperative. If he was unable to produce the cattle, the onus lay on him to prove that plaintiff took the cattle away. If the defence could prove that Dynes made the cattle jump the fence out of the ten-acre paddock, then plaintiff's case must fail. The plaintiff then gave evidence on the lines of counsel's opening, adding that he had sent a letter to defendant suggesting that the proceedings should be delayed until a search for the cattle was made. Cross-examined by Mr Bowler: Had since heard of some stray cattle about the Wyndham district. Had no time to go and look at them. Saw the cattle in defendant's 10-acre paddock on the Friday and Saturday. Passed on the Sunday, but did not see them then. Did not interfere with the cattle at all. On the Saturday witness was driving 100 head of cattle past the 10-acre paddock to his Otakarama paddock. The dog driving the mob ran through the fence where the 17 head were impounded to get in front of and turn the mob witness was driving on the road. The cattle impounded did not jump the fence. Never made any remark about getting padlocks similar to those defendant had on the gate of the 10-acre paddock. Had sold two lines of cattle since—one of 315 and the other of 14.

Thos. Walsh, rabbit packer, deposed to seeing defendant's shepherd 'impounding 17 cattle in the 10-acre paddock. Barnard Kelly, Pukerau, gave evidence that the fences round the 10-acre paddock were fairly good. Eb. Forsyth, stock agent, said the fences were reasonably good. At one point near the creek the fence was not three feet high. The gate was sitting in a hole. Djd not consider the gate and the part of the fence referred to were cattle-proof.

Joseph Bucholz deposed to driving cattle for plaintiff along the road from one paddock to another on the Friday. Saw the cattle in the 10-acre paddack. None of them joined his mob. Saw them again next day. This closed the case for the plaintiff. Mr Bowler said he would raise a nonsuit point, and what he relied on was : Plaintiff said defendant impounded the cattle and wanted the cattle or their value. Assuming that defendant did impound the cattle (which counsel did not admit) his liability as impounder simply amounted to such liabilities as rested on those who had chattels in pledge or pawn. He submitted that there was no impounding by defendant, and he relied on the Impounding Act to support his contention. Section 11 said that no cattle were to be impounded except in the nearest pound, and section 12 provided that, after being kept for sixteen hours, notice had to be given to the owner, and the cattle must be driven to the nearest pound within two days of 24 hours each. Defendant might have intended to impound the cattle, but there epuld be no impounding by him until be started to drive them to Gore. His letter to Mr Solomon showed that he did not impound them when he put them into the 10-acre paddock. If he had impounded the cattle he would have had to comply with section 12 and give plaintiff notice within 10 hours. Defendant's not having done so showed that the cattle were not legally pounded. If plaintiff had come and demanded the cattle he must have got them, because defendant had not given notice within 16 hours. Why did defendant drive the cattle from one part of the fann to another ? He did this to drive them oil the turnip ground. During the week preceding he had repeatedly driven the cattle back to Dynes'. On the Friday he got sick of it and determined to put the cattle away securely until he could impound them. And there could be no impounding till ho started to drive them to the pound. As defendant *as not the impounder, hjs liability did not amount to that of a bailee for reward. He was only a gratuitous bailee, and as suth was only liable for j(ross acts of negligence. There was no evidence to show that there was any such negligence on his part, Mr Neave said that from the evidence and from his letters, it was clearly shown that a week before defendant intended to impound the cattle. The day before he said he would impound them. And that was backed up by his taking possession of the cattle and placing them in a paddock secured by chains and padlocks. In his letter to Mr Solomon, defendant stated that his man was going to drive the cattle to the pound, but that when he went for them thoy were gone. Having gone so far with his procedure, it was defendant's duty to go on and complete the impounding, or return the cat;le. By not having followed the statute, and given notice to plaintiff, he became a trespasser. He took the cattle for safe custody, and the cattle escaping from his custody, rendered him liable for their value.

The Magistrate reserved his judgment on the nonsuit point. W. Sgoullar, the defendant, deposed that on th§ Sunday previous' to his driving the cattle to the 10-aare paddock, 'they in his turnips, and would not go off. Wrote a note to plaintiff asking him to keep the cattle off. On the Monday, Tuesday, Wednesday, and Thursday they came on again. On the Friday 17 head came on, and witness gave his man instructions to put them in the 10-acre paddock, and secure them by putting chains and padlocks on the gate. But the cattlo in the paddock to keep them from doing 'further damage, Intended to have them driven to the Gore pound'. The fence round the 10-acre paddock was thoroughly good. On the Friday of the following week, plaintiff .came to witness and said : " I want my cattle.'' 4JI he said in reply to witness' question about payment for damage to the turnips was " Put in your claim." witness received notice that the action was going on, he received a letter from plaintiff stating that the cattle put in the 10-acre paddock were very wild, and suggesting that proceedings should be delayed until he (plaintiff)

had searched the district for the cattle, intimating that he expected witness to assist in the search. Cross-examined by Mr Neavo: On Thursday, 30th May, threatened to impound tbe cattle. .Witness' man Finny put some oattle in the 10-acre paddock on the Thursday and 17 on tbe Friday. Tbe cattle were seen in the paddock on the Saturday night, and they were not there on the Sunday morning. Bobert Finny, shepherd for defendant, gave evidence that the fences were in good order, also as to putting the cattle into the paddock, seeing them on the Saturday and discovering their absence on the Sunday. Examined the fence eight or nine days later, and found two pests with staples out and the wire taken off the standards. Wm. McDonald deposed that on Saturday he saw plaintiff and his son driving a mob of cattle along the road post the 10-acie paddock. Plaintiff's son, he thought, put the dog into the paddock and fetched a few of the cattle up to the fence. After that plaintiff said to his son : " Never mind them." Margaret McDonald gave evidence to a similar effect, and Hugh McDonald testified to the good condition of the fences of the 10acre paddoek. This concluded the case, and his Worship said he would reserve judgment.