DISTRICT COURT.
THIS DAY. [Before his Honor Jndge Ward] CIVIL CASES.
The Court opened at ten o'clock, wh,en the following jurors answered to their names :—John Donaldson, Cave. Valley, farmer ; John Dooley, Thames-street, publican ; Peter Dooley, Thames-street, livery staßle keeper; George W. Draper, Thamesstreet, gardener ; John Drummond, Tor-ridge-street, butcher; Thomas Duncan, Boundary Creek, farmer; Thomas Dunn, Humber-street, contractor ; Frank Dunlop, Tyne-street, merchant; J. T. Evans, North-road, clerk. RICHARD BLACKWOOD V. NEIL M ( COWAN. Mr. O'Meagher appeared for the plaintiff, and stated that the case was brought for the recovery of £ll3, money lent. Defendant did not appear, and Mr. O'Meagher stated that he was at present in durance vile, but the debt was not denied. He then called Richard Blackwood, who deposed : I am a dairyman. I remember having some money transactions in Timaru with M ; Cowan in December las A . He asked me to lend him £165. I telegraphed for the money and lent it to him. That sum has been reduced to £ll3 by the sale of a horse which he made to me. The lesser amount is now due to me. Judgment for amount and costs. JOSEPH WILLIAMS V. JAMES GRAVE. The following gentlemen were then sworn as a jury :—John Dooley, John Drummond, Thomas Duncan, and F. T. Evans. Tins case, which was for damage for loss of a horse, through the alleged misconduct of defendant's servants, came up for hearing at last sessions, but was adjourned to allow of an amendment in the declaration. Mr. Wiyte and Mr. O'Meagher appeared for the plaintiff, and Mr. Balmer for defendant. Mr. White opened the case by stating that it was brought to recover the value of a horse whose death had been caused by the gross negligence of defendant in placing upon certain land damaged wheat, from the eating of which the animal died. The plaintiff was then called, and in reply to Mr. O'Meagher, deposed : My name is Joseph Williams. I know the defendant, James Grave. |I entered into an aorreement with the late firm of Grave and M'lnt.)sh. Mr. O'Meagher handed in the agreement ; but Mr. Balmer objected to its being received in evidence, as there was no stamp upon it. Mr. O'Meagher contended that as it was merely put in for a collateral purpose, it was perfectly admissible as evidence, in order to refresh the memory of the witness as to date,] but the matter was not pressed. Examination continued : 1 got possession of the mill farm on the 18th of August, 1873, and have been in occupation ever since. The farm is twenty-six acres and the mill is built upon that section. There is no enclosure about the mill, but there is a ring fence round the paddock. The receipt produced is for one quarter's rent up to Saturday last I paid it to Mr. Grave's clerk in his office yesterday. I have never paid any other vent but for the mill farm. The receipts which have been handed up to the Bench are for those sections. Defendant never questioned my right to depasture horses upon the ground, and I have been in the habit of doing so ever since I leased the ground. There is a creek near the mill, across which there is an open road. There is a road leading from the mill across the creek through the paddock and out of the paddock. On Friday, the 29th September last, I had a young mare rising three years old, a light bay, with white stripe down face and wl.ite on leg. She was in t ie mill paddock on that day. She was standing within a few yards of the mill, to the east or east by south-east, and between the creek and the mill. She had been running in the paddock ever since I bought her. She had been running continuously in the paddock from April until the 29th September. I had other horses there also. On the 29fch she appeared to be eating something, as she had her head down feeding. I was about 300 yards dis-1 tant, and could not see what she was eating. It was between two and three o'clock in the evening when I saw her. I saw her on the fo'lowing day at five o'clock dead. I observed that she was very much | swollen about the body, and her feet lifted j off the ground. I did not know what was j the cause of her death, but I went to the veteiinary surgeon and got him to examine her. That was at eleven o'clock on Sunday, the Ist October, or two days afterwards. Her stomacii was taken out, and in making an incision with his knife it gave an explosion like that of gas. The stomacii contained a quantity of screenings of the poorest kind of wheat. When I discovered this grain in the stomach I went to see Mr. Grave. When he saw me he asked me if the dam was gone. I said, "Yes." But he said, '• No," and I said, " Far worse than that, a valuable mare which I had for thy show was killed, through eating his damaged wheat/' He then said, -'Well, well! what news for a fellow before breakfast," and asked me to go in and have a drink. I wanted him to go up and see the mare, and he said he would. He ask me if I had seen Bruce, the miller at the Phoenix mill, and I said I had not, but I would when I went back. I did see Bruce, and told him about the death of the mare. He saw the contents of the stomach. He said that Lauder had chucked the dust and sweepings out before he had gone to the mill in the morning. He did not mention the day on which it had been done. Lauder is the night miller employed at the Phoenix mill. The sample produced is part I picked up where the
mare had. b:en feeding, which I took from the ground on the Monday after the mare's death. There was a circle as large as the table scattered: about. I had no difficulty in obtaining the sample pro r duced, as I took up a handful. I have seen dust before scattered about, but not like that. I saw defendant on Monday morning, and he said, " What about the mare." I never saw enough wheat S3attered about to kill a horse, unless on the occasion referred to. When Mr. Grave asked what about the mare, I said, " Your men have chucked t.he wheat out, my mare has eaten it, a d s'le is dead." He thsn Slid, "Wen siif the mare had had. been killed by the wheat, he would pay for it." When I pressed for payment, he told me he wanted to get a copy of a document up from Dunedin which was there. I told him the document had nothing to do with the mare, but he said it had, and he would see me again ; but I told him I would not follow him about any more, and I also said I did not wish to bounce him or say anything nasty, but unless he settled there and then for the mare, I would take proceedings. I remember the last occasion on which this case was called on. On that morning he shook hands with me, and said, " This war I did not seek." To which I answered, " What ! while you go about killing people's horses." He said he had sent £SO to Balmer to pay for the horse, and if I did not believe him, he would show me the block. I did not look at it, as I believed him. When I next saw him, he said I could not say he had taken any advantage of me or " any other man," and had I not gone to law, he would have compromised the matter. No sum of money has ever been tendered or offered to me to settle the matter. I know the horse which I was told was the sire of the mare. He was a heavy draught horse. I paid £4O for the mare when I bought her, Davie Mcol, the man who sold her, offered me £lO on my bargain. I consider before the mare eat the wheat, she was worth £7O, although, as I intended her for breeding purposes, I would not have taken that sum for her. The document produced I received from Mr. Grave, and I believe it is in his handwriting. I have seen the mare very often near the mill before the 29th September, without thinking there was any danger. I paid rent for the whole of Section 29. Block IV. I pay £9O for the whole land. I have cultivated all the land which could be brought under cultivation. I have burned tussocks within about ten yards of where I found the tailings. No person ever prevented me from doing it. I have done so in the afternoon, and although there were psrsons about the mill, no objections were made. In the two sections there are 108 acres. Section 56, Block 11., contains eighty acres.
Mr. C. S. Allen, who held the title deeds of the property, was then called upon to prodncs them, but he objected to do so. His Honor, however, ruled that it was necessary that the deeds of Section 29, Block TV., should be produced to prove the acreage of the property referred to.
The document was then produced, from which it appeared there were 26a. 3r, 17p. Cross-examined by Mr. Balmer : I was in possession of the farm, and held .it.und"r an agreement in writing, relating to the whole of the land. The wheat was placed a little way from the mill—about twelve yards distant. I have seen smutdust thrown out before, but never saw such real good stuff flung out. My cows have eaten part of what has been thrown out before, but I never knew it had a bad effect upon them. The miller has given me a bag of smut for pigs, but never for the cows. Had he not given it to me, T suppose he would "have chucked it down the race. There is not no other person, unless Mr. Grave, using the paddock, and he does so by the agreement in which resarves the right of ingress and egress. I never saw any of the horses feeding on the wheat before, nor did I ever give any warning to the miller not to throw it out, but since the accident none has been thrown out. Mr. Grave has not been using the land adjacent to the mill other than the road thereto. There are two cottages on the ground, and the poultry belonging to the occupiers go over the ground. About two years ago defendant had a number of pigs there. The cottages are between thirty and forty yards from the mill. The wheat on the ground was between the creek and the mill. I never told Mr. Grave on one occasion I would have the things—fowls; ducks, and goats—cleared away for trespassing. Bruce told me he would remove the goats, and they have been removed. I consider the sample of stuff brought to Court was a fair specimen of what was found in the horse, and also of the heap from which she fed. I never knew of any animals being injured through eating the wheat unless in the case under consideration. When I first spoke to Mr. Grave he said he would come and see about it, and on another occasion he said if the mare had been killed by the wheat he would pay for it. I believe her death was caused by eating the wheat, although I have never seen any other animal die from the same cause. When I saw the mare feeding I made no inquiries as to what she was eating, but had I known that it would have been injurious to her I would have interfered. When I looked at the stuff on the ground there might have been about a bucketful. Where the horse was fouzid to the road to the mill was about five yards. I have never been warned by the miller nor any of Mr. Graves' people to keep my horses away. I used to cart for Mr. Grave for over a year. During that time I have seen them emptying the stuff from the mill, but not in the same place. I never objected, although I was in occupation of the farm, nor told anyone I was afraid of injury therefrom. The,
reason kwen\tba surgeon was qnaccbujit; of the manner in which the mare *« swollen. I saw no drays at the mill Saturday, but there-may have been. \ will swear that the sample of is the same class as that found jj the mare's stomach. I never saw n, horse go up, to the bags ""on "ctrays jj the mill. I burnt the grass withjj ten where the mare was found, lam there as tenant. I bought the man in April last. Davie Mcol offered me \ bonus of £lO for hsr. I never offetej her for sale, but I had been offered £sj for her. I never told Mr. Grave or anj other person that I had been offered though I might have said she was wort] that sum, and would not take it for her, I never saw M'Farlane spill any wheal about the place. That is the best sample I have ever seen thrown out. I hart seen chaff and smutty bran. I have 10j acres leaded from Mr. Grave. I was noi refused a leased on account of my cattle doing damage to the tail race. Re-examined by Mr. O'Meagher: Jlj cows went to the mill whenever thsj pleased, and I never asked for any pet. mission for them to do so. When tie miller told me that in future he would throw no more stuff out, he said he dil not think it would not have done anj damage. George Bruce deposed : I am miller at the Phoenix Mill, and was in the same capacity on the 29th September. I.tiu grinding wheat on that day, and was clean. ing wliest then as I do every day. Tie machine was a good one, and did good work. I have another smutter, but ij has never been .fitted up, because we wen not ready for it. The other smttter is an old one, and the new is an-improve-ment on the other. We work up the id ings, and make it into flour. All millea do the same. There is nothing thran away but the dust. I took a sample from the machine this morning, and I have been in the habit of throwing the smut and dust out on the road, when I have not given it away to feed pigs. I hare given as much as five or six bagi away to feed pigs, and it makes veiy good feed. I have seen pigs eat sand, bni as I am no expert in feeding pigs, I cant say whether it was good for them or not I remember giving some stuff to plaintiii, but I never remember putting my hand into the bag, and rooting it over and saying, " Isn't it rare stuff?" I recollect tie 29th of September. I threw no sweepings put on either that day or the day before There was some there, but it had beet thrown out by Lauder before I had got up. I saw it lying on the ground, and I swear there were not two bags, but I would not swear there were not three bushels. I saw it before I went into the miil at six o'clock. The smu+-»tfput out every morning, and has been sihoSrl went there. It is quite a common thing to do so, and the practice is carried out at eveij mill at which I have worked. It was o! Sunday when I saw the mare lying dead I cannot recollect what I might have sail to Williams concerning Lauder putting out the smut. To Mr. Balmer: The sample produce* is the same as what Williams used to get, and an honest sample of the tailings of the smutter. Horses are very fond oi that stuff, and so are cattle. lam > miller for twenty-six years. I have alwayi bsen in the habit of either throwing out the smut, or giving it away. I have neve! known animals to be injured by it. Iwai in the habit of putting it from fifteen to twenty feet from the mill. Ihavebeei working at the mill for four years, and the smut has always been thrown out. It never struck me for a moment it would do I horses any har.n. Williams told me It had seen the horse eating the stuff on tli 2.3 th, but his reason for hot driving flu animal away was, that he was going outto the country, and it had slipped his memory, I know nothing about what land is connected with the mill. I live on the mill, and keep poultry. I have always been n the habit of using the land, by cabbages round the house in which I live. I remember stacking some wheat ber on the ground, and Williams made no objection to the proceeding. Williami made no claim to me to the ground on which the stuff was thrown. He told me a week after the horse died I should have to put my fowls away. I never saw suet stuff as that turned out at the mill: that is earth and dirt, and has" been scraped off the ground. Williams was perfect!? aware of the stuff being thrown out, but he never warned me not to do so. To Mr. O'Meagher : My sample would be blown away by the wind, and consequently the grain would be left on the ground. There are no sweepings amongst my samples. I always understood that Grave's had full "dominion" over the land. My goats are there yet ;■_ but they are tethered, and sometimes on Williams gras3, When the wheat was staoked, i protected it as much as I could from hop the cattle and the weather. I never p member giving Williams a caution thel I could make a sample like the wheat is supposed to have killed the horse, by blowing the sample. / David Lauder called ; I have been w the employment of Mr. Grave since s*' 7th of last January, at the Phoenix mill On the morning of the 29th Septembtt before Mr. Bruce came, I swept up f* mill. The sweepings usually amount j* seven lb. from the floor, but that does w include what comes from the smutterWhat oomes from the average frpm three-quarters to onffttoKw but it depends upon the watejs. Abps that time the dam was full. /There •-'**•. no sweepings put out thaf^morning, as *• sell them. They are sent down to the store. The heap on the morning in tion would have made about a bushel; When I put the stuff out I saw no horse 5 about, although I have "frequently v& them about the iriilL
Cross-examined by Mr. Balmer : I never saw any tailings like the sample produced, f throw the stuff about twenty yards from the mill, between the road and the building. I always put if- in th<-; *i*nva place, and n.> prrs«;n <-V'.r fV.f:-.-! t I'l-.r. va'M me for H - . il< «i:ilC- *>l m ? ,l X\ic\;\'jiii:o <-i eight years and a half t never kru;w it t*> do any harm to horses. Insoiu«i".u: * I have seen smut put amongst bn.-a t>> get rid of it, and horses had to eat it. I could not say what is done with the sweepings which are seuc to the store. A dray cornea about three times a day to bring the Boar away. There is a hot outside the mill. Re-examined by Mr. White : I know nothing about horses, but I would not like to have my horses fed on bran with smut in it, I do not know what is done with that which is sunt down to the store unless it is to feed pigs. The Court then adjourned for refreshment, and upon resuming, Mr. O'Meagher called John Donaldson, who deposed : I am a farmer. I remember being aC an auction sale at which Joseph Williams purchased a mare.. I know the qualities of the mare before the sale came otF. I knew the aire of this mare, which was the Duke of Buecleugh, a Clydesdale, belonging to me, and was the prize horse about Oamaru. The dam I also considered a first-class mare, having fetched eighty guineas at Lees and Moore's sale. At the time Williams bought the mare I considered it worth £f>o. although it only brought £45. Having been bought for £45 in April, in September she would be worth £63, in my estimation. I saw her in September. I say ihe was worth £65 then. A full sister of Williams' mare was sold the same day and brought £35. 16 was a year older. Cross-examined by Mr. Balmer: The mare which was sold for £55 was a fair mare, but stilt shf was not so good a filly as her sister, which was even a year younger. Benjamin Yeoman: I am a servant in the employment of Mr. Williams. On the morning before the death of the mare she appeared a little stiff, and dull in spirits. I was present when she was opened, and saw a great amount of wheat taken out of her stomach. Before she was opened the body was Vt>ry much swollen, and the legs lifted off the ground. The sample produced is the same as what I saw in the stomach of the mare, only it was wjt and this is dry. There was some black stuff through it, but I did not know what it was. Cross - examined by Mr. Balmer: 1 never saw Williams bring anything to' the house bat bran for the cows. I never saw the smut thrown out, and did not knowthat it was so until afterward*. Francis Robertson deposed : t am a duty qualified; veterinary surgjon. t know the ' plaintiff, Joweph Williams-, and remember being on his premises in the month of September, when I was shown a mare, which I fancied, as I thought she would take a priae. I remember afterwards being sent for when I found the mare dead, she was v<<ry much distended. After opening, I found th<-' large intestines, or those wuic'v came first in view, very much swollen. I took the intestines away, and removed the stomach, which was enormously distended also. On examining the lungs, J found them very much congested." They were- in their natural position, as the body tay. On making an incision 1 noticed a large escape of gas, and saw some wetted swollen wheat in the stomach., i then examined the heart. The rig it side was very much distended with Wood, and the left sid© empty. Front the symptoms I conclude the anansl died from suffocation —not being able to breathe freely. The intestines pressing against the ors?ans of respiration caused congestion of" the lungs. I believe the wheat I found in the stomach was sufficient to cause death. Cross-examind by Mr. Balmer: I am quite satisfied death was not caused by poison, unless the wheat in question may be considered as such. Andrew Agnew, deposed i I am a cartor, in the employ of John Macfarlanee. I know th» plaintiff, Joseph Williams. I remember a titty which was his property, which I have seen in a paddock beside the Phcentx mill. Her color was bay, with white face and white on the leg. I remember seeing her about the middle of September, f saw her feeding upon stuff put out of the mill, which appeared to be smut, or sweepings. As near as I can remember, it was on Wednesday, in the last week of September. I saw her eating the wheat. I was at the mitt on Saturday, but I don't remember seeing her. I turned her away from the stuff to have a look at her, as there was some talk of taking her to the show, when she appeared tame and .ititf. I did not speak to Mr. Grave today, but E heard him ask some persons to come along and have a drink. Cross-examined : The mare looked stiff on the Wednesday, between nine and ten o'clock. I have often seen ner before, but I never noticed her being tame. George Wilson deposed : i am a farmer. £ knew a filly, the property of plaintiff, which i 3 now dead. I have been buying and setting horses alt my life. I cannot say whether the filly was two or three years old when 1 saw hor. William frving deposed : I am a eontractor. I have had some experience in horse-flesh, fully twenty years. I knew a mare belonging to Mr. William*, which has since died. He was a bay, or some might call it brown. I considered that £65 wa» her value in August, and I was I willing to give that amount for her. I soaked Williams to fix a price for her, but 'he said he would not sell her. This concluded the evidence for the ptaintitf, when Mr Balmer said that before proceeding further with the case he had an objection to raise with regard to the title to the
land. In support of his argument ho adverted to the evidence whhich proved that defendant was in occupation of the land, and submitted that the plaintiff hntl given evidence of an occupancy Hurler an a»ree-mt.-nt, but he failed to p;..V..i.- t:\r.i. ?-_;reem^nt. The Bench, however, wouui not admit the objection. Mr. Balmer, after shortly opening the defence, put the defendant, James Grave, in the box, who deposed : lam a merchant, residing in Oamaru. I know the plaintiff. I have been in possession of the land in question, for about six years. Williams Graf, took possession, under an agreemen, about three years ago. At that time I was in partnership with Mr. M'lutosh. Mr. Balmer then placed in evidence, an unstamped agreement, for which the Court exacted a penalty of 6ve pounds. The agreement was then read. Examination continued : There are between twenty-six and twenty-seven acres. I occupy the whota of the property in a manner of speaking. I know the land where the smut was placed. I have been using it. When a lease wa3 spoken of, I said I would not have the cattle on the ground at all, and would not sign one unless he undertook to protect me from all damages. Williams never objected to my stacking wheat or timber, but I told him he would have to keep his cattle away from it. For the mill purposes I would require fully an acre, besides pig-stye 3, fowl-houses,"&c I know it was the habit to throw the stuff on the ground ; there was no other place for it, as it would be absurd to throw it into the nice. The first I heard about this case was one Sunday morning when Williams called upon me and said one of his horses had been killed by eating some wheat. He made no request about compensation for the horse. On the Tuesday following he wanted me to go and look at the place where the horse was. I sent Sherwin, my manager, np to the mill to report upon the matter, and I t»ld Williams I was very sorry for what had happened, and would meet him fairly. I uever saw the horse sited for.
Cross-examined by Mr. Whyte: The agreement produced I have never seen but ouee before. I see where the word " quarry" is written in in smaller characters. I notice that iu the generality of the lines there is a apace left. I should imagine the words *' have fttfl power over alt lands" was written in before the agreement was signed. I never admitted that I did not notice the words in the agreement the first time, but afterwards noticed them on reading them a second time. I have had only one interview with Mr. Uialop in the presence of Williams. [Left sitting.]
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Bibliographic details
Oamaru Mail, Volume I, Issue 183, 21 November 1876, Page 2
Word Count
4,746DISTRICT COURT. Oamaru Mail, Volume I, Issue 183, 21 November 1876, Page 2
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