THE COURTS.

Mount Ida Chronicle, Volume XII, Issue 697, 24 February 1883, Page 3

THE COURTS.

BESHPx MAGISTRATE'S COURT, Moxday, February 19. BEFORE JOHN S. Hicksojt, ESQ:,. R.jk. INSTTLTIS® XAKGITAGE:- . Simon Jfewitt charged John did, at the Racecourse; )near 9th of February, use abusive and insulting language to him, by calling him a swindler and many other insulting names, with intent to provoke a breach of the peace. Mr Rowlatt for Mr Hewitt; Mr M'Gregor ■was undefended, and pleaded *'Guilty " to "the charge. Defendant was fined 10s and costs of case, \ "9s ; one witness,: 10s ; and professional fee, i 21s. . | THE EYEBUES" AGAIN! . I Samuel Yeale v. David M'Creadie.— Trespass.—To damage sustained by plaintiff •on the 2nd, 3rd, 4th, and Sth of February, - 3SSS, by reason of defendant's; horses tresspassing- on his (plaintiff's) paddock, and -damaging a growing crop of oats thereoifThree days at 20s per day, and one day"at;6«j:> £3 6s. Mr Rowlatt appeared for the -and Mr M'Carthy for the de r endant. Pleaj? ■" .Not Guilty." . " Mr Rowlatt briefly opened Ms case. Mr M'Carthy suggested that, as the'casewas from Kyeburn, all the witnesses'vbev ordered out of Court. " ' Isabella Veale, wife of Samuel Veale, and' living at Kyeburn, being duly sworn, said: That her husband owned a seven-acre-pad-dock, which was securely and substantially fenced. One side of the enclosure abutted on a paddock held by M'Creadie, in which, he kept horses and cattle. There wereseven acres in plaintiff's area, five of which were under oats. On the 2nd instant, three -of defendant's horses trespassed in the paddock. She first discovered them at 7 am. After the horses were turned out, she instructed her daughter to tell Mr M'Creadie to look after his animals, or he might get into trouble. Witness rose early on the mornings of the 3rd and 4th, and found the in the enclosure. She complained to M 'Creadie of the trespass on the 3rd instant, and she afterwards saw William M'Creadie (defendant's son) drive them hack home. She also went to defendant's ■ ■early on the 4th, and told him he had better get an assessor to appraise the" damage. "One horse trespassed on the Sth, and the son again drove it out. Mrs Yeale could not the amount of damage sustained by th 3 crop. That question she left for the "Court to decide, upon which she depended -for justice. Witness expected to realise £l4 -on the crop previous to the trespass, but she -had been glad to sell it for £9. Last year witness sold three acres of oats iu the same .paddock to Mr Messent for £SJ. Cross-examined : Her husband was now residing at Reefton. He had not authorised--her to bring the present proceedings,although -he had instructed her to dispose of the oats when they were ready for cutting. S tie was the paddock was seven acres in -extent. She knew the horses in question to be M'Creadie's. One was a grey mare with -a dark foal, and the other was roan-colored: When she went to M'Creadie's on the 4th instant, she knocked at the door, and defendant spoke to her from inside. She did not anything particular at the front gate that morning.

To Mr Rowlatt: The black foal, was not "very old, but it would do more damage than its mother. ■.

William Parker, miner, Kyeburn, stated •distinctly that he had seen- M'Creadie's horses trespassing in Veale's paddock several (Mr Parker corroborated Mrs Yeale's -evidence as to the trespasses of the 2nd; 4th ; and Sth instant.) He had seen the crop ssince the Bth inst., but had hot carefully >examined it to ste what damage it had ■sustained. -

Cross-examined: His house was about 500 •or 600 yards off MrsVeale's. Atthat distance lie thought it posssible to recognise horses that he had known for years. He would swear that the horses were defendant's. John Robertson, miner, Kyeburn, eorrobo- ' Tated several.material points of the evidence ■of the previous witness.

Cfoss-examined : He knew that the horses iln question belonged to defendant. On one ■occasion he saw some one (whom\he took to be defendant's son) drive them out of Yeale's >into M'Creadie's paddock. . - . This was the plaintiff's case..

Mr M."Carthy, before going onto the evidence for the . defence, raised 1 a preliminary •objection. It was a well-known rale of law that a married, woman could only act for-her husband in his absence, without express to a limited extent—e.g., she -could, if left in charge of the house, enter Snto contracts on her husband's behalf for supplies. Mrs Veale had sworn that, although her husband was in communi•cation with her, she had no authority from =him to commence the proceedings. Mr Veale "was at a considerable distance from iNaseby, and the Court ought to have before it some--thing to_ show that he had authorised the Suppose that the case resulted in a verdict for the defendant, and that he issued a distress-warrant for his costs. Suppose, further, that Mr Veale suddenly appeared on the scene, and said that he had not instructed any one in the matter. Could Veale's goods be distrained upon ? Counsel not. A man could not be made a jartytoa cause without his consent. Mr M'Carthy asked that, in the absence of any -authority from plaintiff to commence the proceedings, the case be struck out. _Mr Rowlatt failed to see that his learned friend's objection had any reference to'the •case. He was acting for the husbands-hot for the wife. It was "purely a matter between himself and the plaintiff," Samuel "Veale. Could not a plaintiff appear by his Solicitor ?

Mr : M'Carthy answered Mr Rowlatt's interrogation in the affirmative, but remarked that it appeared to him his learned friend" was acting.upon instructions supplied by Airs Veale.

Mr Rowlatt replied that the counsel of the defendant was evidently laboring under a misapprehension as to the true: state of the affair. Mrs- Veale was simply the principal witness in the case ; she came to Court not ■as the .plaintiff, but simply to prove what she could in her husband's favor. In reply to a remark made .by Mr M'Carthy, lie (Mr Rowlatt) said it was not necessary-that he should show his authority for. instituting the present proceedings. And, besides, it had not been shown that he had not received express instructions from the plaintiff to bring the action againt defendant. Mr McCarthy argued, that the" wife had not been instructed to take the action. There "was nothing before the Court to show if Mr JEtowlatt had received any authoritv. After counsel had further argued their respective cases, His Worship ruled that it was not incumbent on Mr Rowlatt to produce his authority. Mr Rowlatt would not say who gave him his instructions, but he had no hesitation in saying that he did not receive them from Mrs Veale.

His Worship remarked that Veale could appeacjfl There was nothing to J, doing so. / considered that a solicitor an action of his own free w^^^H

His Worship replied that he did not think it right that he sb<snld. direct Mr Rowlatt to jproduce his authority.

This put a stop to further argument, and the case for the defence was then gone oil with.

i Mr M'Carthy briefly alluded to the facts that would be adduced in his client's favor. The defence would be that the horses in question had never been in the plaintiff's paddock. David M'Creadie, plaintiff, being duly sworn, deposed : That he examined Veale's paddock on February 15th in company with Messrs Glenn, Morgan and Scott. At that time the ground was rather soft. Hef.ailed to discover foot-prints or any other sign that would have led him to believe that h ses had been in the enclosure recently. 'There was a good, substantial fence between his (defendant's) and plantifFs paddocks, and at the time of bis inspection was in a thorough state of repair. He was confident that his horses had never been in the place. It was possible for sheep to have done the damage his horses were statedto have been the cause. ofi Sheep were always depasturing in.tbe immediate vicinity of Veale's, and it was very easy for them to gain access,to the paddock :there were seven "different places where entrance could be effected. ' He possessed a grey mare with a dark foal at foot and a dark grey horse. The former animals were stabled every~ night, and let- out' in the morning. This had been done regularly since the New . Year, the grey mare being-used for a particular purpose. Witness considered that there were only 2i acres in Yeale's paddock.

w-Mrs Veale (from the body of the Court) " You make a mistake ! You" . "Constable Willis : " Silence !"

, -His Worship (to witness): "Do you mean to say there are only 2J acres in plaintiff's paddock ? " : Witness: "Well, your Worship, I" His Worship : " Answer my question in a straightforward manner, sir ! -Reply either 'Yes ' or 'No.'"

v Witness : " Well, Veale's paddock is next to mine, which is " -

His Worship :" That will do,- sir;-.; You need not answer the question. I shall know wbat value to put upon your answers." " Witness (evidence continued) : He knew nothing of the damage done to Veale's paddock until he received the summons.

His Worship : " This is more Kyeburn ! " Mr Rowlatt: "It is, your Worship." ■■■■■'.

Cross-examined : Mrs Veale had never sent him in a bill for damages, and no demand of any kind whatever had ever been made on him. The result of his examination of the paddock was that he authorised Mr Scott to offer Mrs Veale 10s, on his behalf, to square the case. He did this to .prevent it going into Court, although he was' certain his horses did not do the damage complained of. Judging from the appearance of the oits, he was of opinion that the late raios had caused the crop to lie down. Bis Worship remarked that there was no crop of, oats at Kyeburn that the'rain would beat to the ground. - Cross-examination continued : He could not swear that the grey mare and foal werestabled on the nights of the Ist, 2nd, 3rd and 7th of February. , ' ■ His Worship : " I have only one question to ask you, Mr M'Creadie, and it is this : Did or did not Mrs Veale go to your house on the,morning of the 3.r.d. and complain to you that three of your horses were trespassing in her oat crop ? And,- further, did she ask you to get an; assessor to s appraise the damage already done ?"

Mr M'Creadie: '' I mean to say, your Worship, that she never spoke to me on any occasion about the matter."

John Scott, farmer, Kyeburn, stated that he examined; Veale's paddock On tlie afternoon of the 16th inst. He found no footprints or other traces of horses. The soil was -moist ienough.: Judging from the appearance of the paddock, he would say that there were about acres in it. _; _

Mrs Veale: " That's not true. I'll go and get a man to measure it i" .Witness : He did not measure the area. He "could not say if the fence between plaintiff's and defendant's properties was -in a thorough state of repair on the 16th instant. He noticed that the crop had Leen damaged, which damage he thought might have been caused by some large cattle. There" was a possibility that sheep might have done it. He estimated that 10s would adequately remunerate plaintiff for the injury done to his crop. The value of the whole of the'oats was about £3 10s. When he made an offer to Mrs Veale of 10s on defendant's behalf, he told her that he thought 10s would meet the requiren\ents of the case. Mrs Veale replied that 5s would content her, provided that Mr M'Oreadie would pay the Court and other costs incurred to date. Defendant bad never acknowledged to him that his .cattle had been in plaintiff's paddock. Mr Scott was then Gross-examined, but nothiuc fresh was elicited from him. ■ '

Robert Glenn, storekeeper, Naseby, : sta'ted that he went to Mrs Yeale -last week, and asked her to show him where her oats were injured. - She replied, " If you had been here earlier you would have seen it'all." Witness inspected the paddock, and found the crop uninjured and the fence unbroken. Looking at the crop, he would say its full value would be about £3.

Wm. Ourrie, farmer, Swinburn, corroborated defendant's evidence as to the absence of foot-prints, etc., in the paddock, also as to the condition of the fence last Thursday. It was possible for sheep to gain access to Veale's holding. Witness had been residing at defendant's since February "2. On the night of the 2nd and 3rd' instant the grey mare and foal were put into the paddock. Mr Kowlatt: "Mind you, sir, you said 'paddock.' "Witness: " That was a mistake. I should have said stable."

*--~Mf=l!owlatt: " You distinctly said, '-paddock.' Much value cannot be attached to jour evidence.... You all appear to have been pretty well tutored for the occasion. I would inform your Worship," said Mr Kowlatt to the Bench, " that this witness is a son-iii-law of defendant."

Witness then gave further evidence, the gist of which was that the grey mare and foal were stabled on the nights of February Ist, ,2ad, 3rd'and 7th, and therefore could not have been in plaintiff's: oats, as Mrs Veale' had stated. Mr Currie also stated that the distance between plaintiffs and W.Parker's residences was fully half-a-mile, and —inconsequence of the view being obstructed by a bank— that it was impossible for a man standing at Parker's to see what was' going on in Veale's paddock. Witness was at defendant's on the 4fch, but did not see or hear Mrs Veale there. She covdd not have approached the house without being heard. He had two dogs (one was tied up) at the front gate on the 4th, and Mrs Veale could not have gone in that way as she had stated, because the dogs in question would not have let her pass them. - -

Witness was put through a severe crossexamination by Mr Rowlatt.' : Walter Morgan, butcher, of Kyeburn, was called for the defence. His evidence —which was corroborative of Mr Scott's—was fairly given, and was rather in favor of plaintiff's case, than against it. His estimate of the damage was ss. ' Mr M'Carthy said that no credence should be attached to the evidence of Robertson and Parker, because of its unreliability. There was at least contradictory evidence. Mrs Veale had sworn to having seen the grey mare and foal, while Mr Curre had unhesitatingly stated that they, were stabled at the time the trespass was said to have occurred.' Mr M'Carthy thought Mrs Veale's evidence untrustworthy, and asked for a judgment in his client's favor. . Mr Kowlatt was astonished : that the case for the defendant had been closed without

"W. J. M'Oreadie having been called upon to .give evidence. He it was who was said to have removed the horses from Veale's, and, despite the fact that he had been in and out of the Court all day, he had not been called upon to refute Mrs "Veale's statements. The proceeding was, to say the least of it, very, extraordinary, and he thought the subject was one for comment.- Regarding defendant's evidence, it should be thrown aside. Mr M'Creadie was too -gor.d for his own case. The laughable pait of the affair was the evidence of the experts, which was of a very contradictory character. The f ict that the defendant had asked several of his friends-to assess the damage conclusively proved that he acknowledged his client's claim.

His Worship adjourned the Court for 15 minutes, to allow him time to go 'through his notes. When the Court resumed, he delivered the following judgment " Tn. this case, as in others from the same locality, I .find that there has been . some very hard swearing., I am inclined to believe that Mrs Veale has given her evidence very fairly.can hardly believe that she could have' mistaken defendant's horses for sheep. She swears positirely- to their . being on the crop of oats on the 2nd, 3rd, 4th and Sth of February. She also describes the animals pretty accurately (as admitted-by defendant). She cannot swear to the extent of the damage, and -leaves it to the Court to assess, if any. William Parker swears to seeing the same horses (described ""by Mrs Veale) ok'plaintiffs oats on' the 2nd and 4th, and one' on the Bth. He cannot say what damage was done. John Robertson alsj 1 swears to seeing the three horses described—two mares and a foal—on Feb. 3, and that saw M'Creadie's son (presumably) drive i them into defendant's paddock. He .also I-is unable to " say what damage was done. We have, therefore, three witnesses who I "s,wear to seeing tlie horses in Veale's paddock on the 2nd,. 3rd, "4th and Bth of' February. , • - ■ "The defence set up is that the horses were ; stabled every night, and could not have done r the damage; and that it must have been done I-by sheep. John Scott's evidence bears about [ it a faithful aspect, as also does Walter Morgan's. The former , distinctly gives it as his opinion that horses or cattle caused the damage, and not sheep. 'His estimate of the damage appears small, but, as a practical man, I have very little doubt about its correctness. Mr- Morgan corroborates Mr Scott's in / every particular. David M'Creadie swears. he could see no appearor dung—that would lead him to believe- that horses "had been in the crop, .which two of his own witnesses 'contradicted,' as ' regards the foot-marks, i From the fact of .their having been some i-ain in the interim between the Bth (the date of i the last trespass) and the 15th, when defend-"' I ant went on the ground, it is quite possible I that the foat-marks and manure would be I obliterated aud washed away. Although I M'Creadie swears that' the mare and foal were stabled every night since the beginning l" of the year, he cinnot state positively that they were stabled on the nights of the Ist, i 2nd, '3rd and 7th of February., He (defendant) estimates the damage - at' 3s or 4?, and t from thefact of his so estimating it, it appears | to me as an admission that he was to some I extent; liable, which is confirmed by the fact of his employing Scott and others to'look at the crop,: make an estimate of the damage, [ and an offer .of a , certain sum to Mrs Veale jto stay- proceedings. Mr Glenn's, evidence | is-practically valueless. . Mr. Currie's is also | practically as there is nothing to | corroborate. his -statements' as regards the I-horses being stabled. Taking all the evidence i into consideration, I am of opinion "that the | weight of it-is in favor of plaintiff, and I i therefore give judgment forliim for 10s,- ' -^damagescosts of -case, : 17s ; -two witnesses, t £1 each; and'professional fee,'£l Is." i The Court then rose! ' - ! —♦ • | THE ? WAKDEISTS COURT, NASEBY. ! _ Tuesday, February 20. i Before John- S. Hickson, Esq., Warden. APPLICATION'S. The following applications for mining privileges were heard and granted ■—Williarn Bromiley, drain-race, Roach's Gully ; George Brown, water-race, at the foot of Mount Burster. A PECULIAR AJVFAI'r. Spillard and Blair, of Naseby, applied for an extended claim of two acres, situated on the spur between Enterprise" and Wet Gullies. • The application was objected to by a party of eight "Chinamen, and the objection was made upon the following grounds*:— (1) That the application was entirely informal, not being in accordance with the Regulations. (2) Tbat the area applied for was held under certificate.from the Warden, which had not b*een;cancelled, and which was therefore still in operation. (3) That the holders of the certificate,; having tested the .ground, had found it to be of so unpayable a nature that . they had utilised it by forming a garden, upon which a vast amount of labor and a considerable sum of money had been expended.. _ (4) That the application included within its limits the huts and ground which the-objectors were entitled to hold under their-1 timer's rights as hut ground • that the I -marking was insufficient; and that the neces- | sary j notice 'had not been served upon the objectors, whose interests were obviously affected.

Among other things,- it was stated by theobjectors that had' the ground been of in auriferous character none would have better utilised, it than "themselves, they being .m possession of a tail-race which would enable them to work the ground to advantage. It was broadly stated by Mr Hertslet (who supported a .portion of the objectors) ■ that the application savoured strongly of an attempt to. extort; money .from them, seeing that they were in possession of a very valuable garden, which had cost them.hundreds to bring into cultivation.

i The, Warden, after hearing the evidence of I Messrs Spillard "and Blair,decided to adjourn I the case Jor a fortnight, , for the purpose of i visiting the ground, i The Court then rose. -