Resident Magistrate's Court, Foxton.

Manawatu Herald, Volume II, Issue 281, 4 October 1889, Page 2

Resident Magistrate's Court, Foxton.

Wednesday, October 2. (Before H. Brabant Esq. R.M.) Joseph Nathan & Co v. Robert Taylor — Claim £17 16s Id. Mr Hellish for Mr Hankins for plaintiffs, Mr Baker for defendant. F. De Ridder was called and proved the claim. C. W. Samuel deposed that the defendant had paid £3 on account. Judgement was grven for £14 16s Id, costs 80s, witness ss, solicitor's fee, 21s ; no execution to issue as long c Hie defendant pays £3 a month. J. Smith v. J. Saunders — Claim £3 6s. Mr Baker appeared for plaintiff, and Mr Hellish for Mr Hankins for defendant. Mr Baker opened the case by saying the plaintiff is the occupier of a section of land adjoining Manawatu river and had erected a fence ; the defendant resided further down the river, and used the way through the land ; the defendant thought he had a right to go through the land, and when the posts were put in, cut tliem down with an axe. Mr Hellish asserted the case was a question of title, and they asserted there was a right of road through the land. Mr Baker said that occupation was a good title. The defendant must show some colourable title to the land before he can set up the question of title in this Court John Smith being sworn said he was occupier of a piece of land being part of the section, adjoining the ferry road. Been in occupation 2 or 3 months. No one else .had the right to occupy it, except Birchley to spread fiax on. There is no road through the part I occupy. The original owners are Birchley & Co. I put a post up to complete the fence, in the middle of the gateway that had been left in the fence, it was 28 yards from the river edge. When I went back the post was chopped off at the ground. I have occupied a section adjoinwhich defendant now does. Thera were 2 or 3 fences down to the river and there were also gates. I had a gate during my occupancy closed for 3 months at a time, looked. The defendant has a gate in his fences ; there is a gateway in the fence in the centre of section 90 in occupation of defendant ; I will swear that gate has been shifted ; all sections at Moutoa have fences leading to the river. Before the post was cut down I put a piece of wire on and stapled it ; it was broke open ; have previously told his son not to go through ; there is no other way for defendant to get out. By Mr Mellish — I have been in the district 16 years ; the settlers ihen went along the bank of the river ; I have locked a gate, but there was only one settler living below me, and I gave him a key ; Others have gone that way. W. H. Howe, being sworn, said he was a ferryman ; had been at Moutoa all his life ; the defendant had threatened to stop him going through the section on a Sunday ; I hand in a letter received from the Hon. Walter Johnston re road, in reply to a letter sent to him ; the fences have been carried down to waters edge ; above the land are no gates, but below there have been gates. By Mr Mellish — I was stopped by defendant on a Sunday when I was riding and had a gun. Settlers lower down have all got gates. By Mr Baker — The settlers had used the track as a matter of privilege. The Moutoa estate is on the river, there have been some very big drains cut on it, and crossed the old track. The Karikari was without a bridge for some time. By Mr Mellish — About 8 or 9 months ago there was no gate on Larkworthy's boundary below Turley's. Some one went through by tying the wires together and jumping over. Wi Katene being sworn said I live at Poutou. The defendant has stopped me going down the track on one occasion. He told me the land belonged to him and I had no right. This was not on Sunday. By Mr Mellish — We came thinking there was a track there ; I have been through since ? ; Saunders only stopped me once. I was on horse back on the first occasion, but not since. By Mr Baker — The Maories used to go over the land as well as the track. Mr Mellish stated that they asserted there is a right of road. Mr Saunders beng sworn said he was the occupier of section 90. I did stop some boys who turned their horses into my paddock and went shooting ; Ido not recollect stopping the Maori. Settlers below cannot get out any other way ; The post w|s put in centre of gateway. I cut it down ; I found the gate stapled up. previously. By Mr Baker — I do not admit my son was warned about going through this paddock. The boys had turned their horses into my paddock. G, N. Wood being sworn said that he had been in the district 24 or 25 years, There has been a track along the river bank since the land sales; The settlers always used to leave swing gates. As the road was formed the settlers closed their places up. By Mr Baker — You cannot get along the river bank, where the road is formed. I do net be line there would be a right to go by river now. There was nothing said about the track at the rales. The track along the river bank below Shannon ferry has always been opened. Mr Mellish submitted that there has been a track for 23 years, and on Mr Woods evidenca there has always been a roadway. Mr Baker was not prepared to argue that there was a presciptive right in New Zealand ; Supposing that there is a 20 years use to this road would entitle the public to this road it wonld have to be undisputed, but it had not been shown as having been undisputed. Tho question as to the right of any ono to be able to go round and break down the settlers fences is a very large one. There is no evidence that it was unj disputed but merely that the settlers had mutually agreed to it, whereas Smith, Howe and Wi Katene has proved being stopped, and the road disputed. The R. M. said he had a doubt as to whether he had a right to say whether there was right of road or not, but if he had. he would have decided in favour of the plaintiff. The R. M. would consider the matter and give his decision next court day. C. V. Fume v. Robert Urwick— claim £1 8s Gd. Mr Bftkf r for pluititiff j Mr MelHlh for

defendant, C, V. Furrie being' sworn, said he sued the defendant for money paid in mistake. He' came in on a Saturday evening and asked for a stick of tobacco and handed cheque (produced) and I took it for a cheque for £2 6s and I gave him £2 5s 6d in change and the tobacco. As I was putting cheque in cash box defendant was at the door and I called turn to stop. My daughter was at the door and he ran past her into the dark. I found him at Whyte's hotel and told him I had made a mistake iin the change. He brought out one note and about 15s in silver and said, Oh, no ! [ By Mr Mellish — Defendant was in the doorway when I challenged him. Whea I asked him about change he took out cobv tent_ of his pocket. The man who saw m*give defendant change was sitting close by„ I was perfectly sober on this night. Tha case occurred in March last. lam certain. ibe defendant heard me. By Mr Baker — I am certain that he hai over 15s or 18s in silver. Jessie Fufrie being sworn l_aid I was. standing by the door when defendant came-, in. I heard my father call out, when defendant was passing me ; he ran out, he. pushed me aside : Ido not remember what . my father said ; The man did not stop. By Mr Meilish — I saw him run acrossthe road towards the Bakery very fast. F. McLennan being sworn said I was in Fumes' shop when defendant had change • given him ; I saw two single notes and. what I thought was 6s. lam sure 2 single notes were given him ; Furrie called out stop ! the man could have heard. By Mr Mellish — I was sitting aboui- two yard?, from the counter. The defendant was sideways to me ; I could not help see ing the change. R. Urwick being sworn said that he remembered taking cheque produced to Furrie in March, aud received back in change £1 2s and a slick, o" ivlacco. I had 4s or 5s on me before. I went with IFurrie to his shop, and put all the money I had on the counter to count. Furrie put it into his pocket but eventually gave it to me ; between the time I cashed the cheque and Furrie came, I had spent one shilling for drinks ; I walked out of the shop, but did not run ; I did not change my hat between changing cheque and when Furrie siaw me. By Mr Baker— lt was onfy a quarteT of an hour between changing cheque and returning to Furries ; I say its a lie to siiy I had a soft hat ou when I went in-;o the shop, and a hard hat afterwards. I was in Wellington before I came here, driving a cab. I had 4s or 5s before I changed the cheque ; I got 35s ac last payment from Sommerville, and I left his employ three or four weeks before I came here ; I was generally out of work ; It got 15s from Atkinson and 40a from Peter.-. I paid all my debts due in Wellington ; I wanted change to pay for my board. F. Gay being sworn said I met defei idant in front' of billiard room as he came from Furries' and we had a drink. By Mr Baker — I could not say what sort of a hat he had on. R. Urwick stated he had a hard hat on the whole evening. F. McLennnn said that defendant had a grey soft hat on when he was served by Furrie ; I took particular notice of his hat as he was a stranger. The R.M. said that there was not only the fact as to the discrepancies in the money but also that the defendant had disputed three witnesses of the plaintiff on other points. Judgment for amount claimed and costs 6s. C. Symons v. Jones & Rogers — Claim £40 6s 3d. Mr Baker for plaintiff, Mr Mellish for defendants. C. Symons, being sworn, said that the defendants acknowledged the debt. The defendants gave me an order on Honored but he would not pay ; I returned the tarpaulin to defendants, mentioned in the set oft* ; a few hanks in s ome of the bales got wet, and I had it drk d and baled. By Mr Mellish— -I was at the mill the whole time *, it was a day drying ; it took the best part of a day to press ; there were 6 or 7 bales, and I brought back no less; 1 helped to press them ; I had the tarpaulin two or three months. Mr Jones, being sworn, said the tarpaulin was lent to Symons, it w_is then new, when returned it had had 6 months work ; a new the costs £4 15s. The fibre got wet whilst Symons carted it to the station. The drying necessitated re-scutching and rebaling. I was not at mill, and I cannot say it was re-scutched. By Mr Baker — I say that the wet bales got reduced from 7 bales to 6 ; I will not swear that the bales were re- scutched ; the bales I could not sv.*ej>r were of the same size; the tarpaulin lias not been used since Symons left it; I lent the tarpaulin. By R.M. — The tarpaulin is worn out. By Mr Baker — I did give an ordor for the full amount. The defendant said that he told the plaintiff the order he would give would be dishonoured. C. Honore, being sworn, said that the bales that got wet and re-baled were heavier than those sent down ; the order when presented was dishonored because there was no money. By R.M. — The bales were weighed ; Ido not think there was any loss in weight in the drying. C. Symons, recalled, said— l took great care of the tarpaulin ; I never agreed to buy a new one ; I was never asked for it before I returned it; I never used it for any other purpose; Jones never told me the order would be dishonored. By Mr Mellish — I swear that Jones never asked me to return that tarpaulin. By R.M. — Carters do as a rule find their own tarpaulins ; it was half worn when returned. Mr Jones put in a butt of a cheque showing he had paid 45s for the taipaulin. The R.M. said that he should allow 22s 6d for use of tarpaulin, and gave judgment for amount claimed less the 22s 6d, costs 355, solicitor's fee £2 2s. G. Dempsey v. Retimana te Namura— Claim £5. Mr Mellish for plaintiff, Mr Baker for defendant. Plaintiff asked for a nonßuit, which was granted on plaintiff paying 318 costs. J. K. Nathan v. Taylor & Co.— Claim £2 15s sd. Judgment for amount and costs 10s. James Saunders v. W. HoweClaim £5 ISs. Mr Mellish for plaintiff, Mr Baker for defendant. Mi Mellish. said it was a claim for a canoe stated to have been set adrift during a flood by the defendant . James Saunders, being sworn, said he wa3 the owner of a canoe that was moored about 30 chains from the ferry; I am accustomed to cross my visitors without charge; The canoe was fastened to the chain by a staple; I missed the canoe on the llth September! The next mo ning I saw footmarks about the post the canoe was fastened to; The post boro the appearance of the Btaple having being forced. The marks i w«r« quite fresh; I falttft the cano 8

=at £4, -and time for searching fc* oanoe 2 men at 8 shillings a day each. By Mr Baker— l have not land _nopth sides of the river; The ferry man does not get the money out of me; I do not know what ste-e the defendant's boots are; Edward ICirby, being sworn, said I am a farmer; I heard defendant saylke would stop plaintiff from crossing people over the river, he -would warn him ; When I went to look, for canoe, I saw the footmarks frrjsh, but other marks were not fresh ; The staple in the post had "been drawn and chain and canoe were gone; I traced the tracks up to the ferry ; Ihelped to look for canoe, Kthere were 5 shillings paid for

| ferries. I *%y Mi- Baker— l was staying at ISaunders; I could not swear the f footmarks were defendants; Miss f Saunders went down at night with re to look at the footmarks. Alexander Saunders, being sworn, Baid — I remember the canoe being gone on the 11 September; the next morning at 3 o'oloek I «aw fresh footmarks about the post, one where the foot had slipped and made it a fcJbvwide : the defendant livfls at ferry. By Mr Bakte^j- paid thf ywy money to Mr Bush. Elizabeth Saunders, being sworn, sa i_ — I remember the canoe beinggone; I saw some footmarks, I traced them from the waters edge to a few yards of Howe's tent, not more than 3 yards ; The ground is muddy, and they were the only tracks to be seen plainly ; this was about 4in the morning; I believe they were __owe's footmarks. By Mr Baker — I have never measured Howe's boots ; he has been to see me and left his mark on the kitchen floor ; the size in sand I should think were size 9 ; plenty wear 9's in the district; plenty people live up by tho ferry and wear 9's.

Raniwhena Kateno, being sworn, gaid — j knew the canoe, that was Saunders; I do not know what night but I heard someone paddling a canoe, I heard someone hammering at a chain. By Mr Baker— l do not know who it was in the canoe. Mr Baker asked his worship to say that there wa? no case to answer. The R.M. said that he could not see that theie was any evidence thafc defendant had set the canoe adrift, yet the Native witness had stated she heard someone paddling it away. Mr Mellish put Mr Howe in the box and he said he would swear that he did not set the canoe adrift, nor did he hear any one moving about late at night after bedtime. By Mr Baker— My tent is on the opposite side of the road to where the canoe was. TheRM. said that the plaintiff had made no case to entitle him to judgement the judgement would therefore be for defendant with costs 6s, witnesses 425, solicitor's fee 21s.