RESIDENT MAGISTRATE'S COURT.

Otago Daily Times, Issue 2801, 28 January 1871, Page 2

RESIDENT MAGISTRATE'S COURT.

Friday, 27th January. (Before A. C. ritrode, Esq., R.M.) civil cases. Hastie and Pearson v. Menlov©.—Claim of L3O, for damages sustained by the trespass of defendant's sheep on a paddook occupied by plaintiffs. Mr Turton was counsel for the plaintiff^ and Mr Harris for the defendant. L 5 was paid into Court. Richard Pearson, one of the plaintiffs, on being examined, abated they occupied s paddook of about 60 acres in extent at the East Taieri, and adjoining other paddocks occupied by Menlove. Between the 10th October and sth January plaintiffs used their paddocks for grazing and fattening cattle. At one time they h d from 40 to 46 head in it. Immediately previous to the 14th December, the paddook afforded firßt-class pasture of long grass. On the 15 h, witness found from a dozen to a score of defendant's sheep on the land. He left Daaediu at about 2 o'clock on the morning of the Ist January, and reached the Taieri about half-past three, and found the paddock covered with Menlove's sheep, some 500 in number. He drove them into a corner. Walter Thompson, Menlove*s shepherd, came at 7 o'clock to claim them, and took away 300, about half the original number having got out through the wire fence. ' The grass was so covered with sheep duag that the cattle would not j eat it; it was also very much beaten down, and traversed with sheep tracks in all directions. The weather was dry at the time. Prom the 14th December to the Ist January the trespassing continually increased, and j attained its worst on the latter day. Witness I complained to Menlove about it. Wifciie6B ! estimated that, in consequence of these repeated trespasses, his cattle had been thrown back fulJy six weeks in their fattening, and that he had therehy sustained damage to the amount of from L2O to L3O. Cross examined: Witness and Hastie took the paddock about the 11th October from Milne, on term 3 recorded in a written agreement. By the agreement, they were bound to keep the dividing fences between their own paddock and Milne's in repair, bat not against sheep. The fencea were not put iuto reasonable repair by the landlord at the time of their entering into possession, as required by the agreement. Plaintiffs objected to the neglect at the time. Witness complained to Milne about the state of the fences every time he saw him. Soon after they took possession of the paddock, Milne employed two men in repairing the feces. j

Witness dxd not tell one of them, a German.? that he (the German) had made a capital iobv of it. The paddock waa 'taken for a period: of eight months, at a rental of L 56. Plaintiffs have now forty bullocks and a couple of horses on the land. It onght to carry more* stock. The cattle are in fair condition. Witness offered to take in cattle to graze last week. On the morning of the lefe January, he entered the paddock by crossing Milne's land, and did not go through Menlove'a. He had a dog with him. He wenfc out for the purpose of ascertaining whethee the sheep were driven in overnight. There were both unshorn and Bhorn sheep in the paddock—the former had been in Menlove's place for a month previous } the latter hatE. been put on the ground overnight. James Haßtie, the other plaintiff, stated that ©a. the 15 th December he discovered twenty of Menlove's sheep in the paddock occupied by himself and partner. Witness is accustomed to visit the paddaefe every week, and has never been there without finding some of Menlove's sheep in it—generally one or two, never a great number.. Immediately before the 14th December, th& grass was in very good order, and abundant;. On the 28th of that month he discovered the grass to be covered with sheep dung and: traversed by sheep tracks. The loss thn» sustained he estimated at from L2O to L3oi Cross-examined: Since the 10th October witness has not taken steps to get the fencerepaired. Ho has told Milne about th* fence, on every occasion on which he has mefc the latter. Milne has always been working at it. Menlove offered witness £3 as compensation; and afterwards offered te* submit the matter to arbitration. Witness thought he replied that he would rather tryit. James Cullen, a farmer, stated that oo* the 13th December, he saw 200 Bheep treß- : pawing on plaintiffs' paddock. James? M'Hamy, a labourer in fine's employ,, stated that during the 'period from tW 14th December to the stb January, h& several times _ s*w Menlove's sheep, ia. numbers ranging from a, dozen to two? hundred, trespassing on plaintiff's' paddock. Walter Thompson, a shepherd a* the employ of Mr Menlove, stated that during the period from the 14th December to the Ist January, it was hia duty to lo»k after the sheep night and morning, he being; employed otherwise during the day. On. t&et afternoon of the 23rd D-ecember he found: from 200 to 300 of the sheep la plaintiff** paddock, and on the Ist January 300. He had likewise at various times found small : flocks of sheep—from 8 to 12 in number-— trespassing. The, grass did not appear tochave been affected by these trespasses so as to spoil it for cattle. In places one cou'A tell that sheep had been across. That won I«§L be sufficient to put cattle off their feed for a. time, but would not permanently injure fcha 'pasture for cattle. . Cross-examined: To* There is a ditch and bank on Hastie's Bid©. The bank h»e, ia one place, been broken, away, and the earth fallen over so aa to form a slope. 300 sheep were delivered to witness at 8 or 9 o'clock on the evening of the 318 ft,. They had come from Shag Valley and appeared to be tired. Several were foot boic. He saw them bedded down between lOaadL 11 o'clock. The place where the sheep got over that night was a very awkward place j; and he did not believe they would have attempted to cross such a place unless thejF had been frightened. At one of the gates©E Menlove's land there were the tracks of a, horseman having entered, which mast havo been-made between 9 o'clock at night and & o'clock in the morning. He drew Pearson's attention to them. Pearson said he did not make them. Witness estimates the damage done to the grass at L3or L 4. Re-examined On the Ist January there were only 300 sheep on Menlove's land, the area of which is afcoafe 300 acres. Donald Cameron, who is in plain» tiffa' employ, stated that on the 2nd January'their paddock was very dirty with sheepdung, and there were sheep tracks th.rougb.tbc* grass. The part of the bank where tb.B shee^ got over on the Ist January is sloping, and is not sufficient to keep sheep out. David. Sutherland and William Duncan gave evidence as to the amount of damage occasioned. Mr Harris submitted that the plaintiffs could not recover in a Court of Equiiy, inasmuch as they were bound by their cobtraot with Milne to keep the fence ia repair^ and had failed to do so. However, defendant, by paying L 5 into Court, admitted, that some damage was done, and it had beem already proved that his client had offered to submit the matter to arbitration. This offer being rejected, and legal proceedings ooatmenced, all that remained for Mr Menlove to do was to ascertain the amount of damage; which he had accordingly done, and paid L 5 into Court, as more than sufficient to covetthe loss sustained by plaintiffs. Mr Harris called Edward Menlove, who stated that her rented a paddock of a little over 3QO acres in extent from Milne. For some months past he had kept it stocked with sheep, bofc hot .up to its carrying capacity; and to® grass would have bees better if kept dowo. more. On making his agreement with Milne^ the latter said that he (Menlove) was not. responsible fop the fenceß, as arrangements had been made with plaintiffs about then*. Plaintiffs had spoken to witness several tuae& about his Bheep, chiefly about a lot of seveo, which were the most frequent trespassersl. Witness made an offor to Haatie to snbmfe the matter to arbitration, and he would pay for whatever damage had been done; Hastw* in reply, said that he would see the case tried. The fence was put in order by Mihro about the 10th October. William Milne^ examined, stated that when he made &<* agreement with plaintiffs, he took steps tohave the fence put in repair, and set two men to do the work. He did not persoaaßjr see whether the work waa properly executed Plaintiffs did not continually apply to him4<* get the fence repaired. Witness saw tft» paddock on Tuesday last. It did not appearto have suffered much damage from sheep. There waa good grass; and 35 head of oattl* and two or three horses were running upon it. The cattle appeared to ba fat. A portion of the land is swaoipy. L 2 or L 3 would be sufficient compensatioo. for the damage done. The place where the sheep went down ia almost perpendicular, and 12 feet high. Cross-examined : Afe one time last year witness had about 50 he&& of cattle running upon the paddock. JohEs Batty, shepherd to Mr Mentove, deposed that on the 31st December he drove a floefe of 300 sheen from Palmerston to Mr Men— love's, reaching the latter place about halfpast 8. The sheep were very tired, and sfe. was as much as he could do to get them tothe Taieri. Eight days afterwards he saw the place where the sheep got down during the night. The sheep must have been forcect i down the steep. He estimated the damage done at L 2 at the outside. His examination* was made on the Bth January. Friedridst. Trobtßki was next put into the witness-bos: to be examined about the repairs to the fence,, but Mr Tiirton said he would admit that 6fee> fence was put into proper repair by Milne, Jamea Shand, a farmer at the West Taier^ sated that he examined the paddock on the 16th January. There was very fine grass ia. it, which did not appear to have been much, trodden down by sheep, except near the? gate. No material damage appeared to have beendoae. His Worship, on giving judgment, said tha payment into Court waa an admission tfeafc. some damage had been done, and all he was called upon to consider waa the amount of damage. It appeared to him that several, aots of trespass had been committed, andl that plaintiffs had suffered loss to asomewhafr larger amount than that pnid into Courfc, Keeping in view all the circumstances of tlia case, which were somewhat peculiar, ha^ assessed the amount of damages at LIO, iaolud'me; the 15 paid into Court. Judgment for LlO and costs. De Costa v. Wood.—Mr B. C. Haggittfosplaintiff; Mr Stewart for defendant. La. this eaie plaintiff sought to recover L 991& 63 in Len of a large' debt which had twea. reduced in order to bring the matter within, the jurisdiction of the Court, under the following circumstances:— Plaintiff is fcfca owner of a ketch named the' Angelina, sad in April last entered into a written agreemeat with defendant by which tha latfesat