RESIDENT MAGISTRATE’S COURT.

Temuka Leader, Issue 1413, 3 November 1885, Page 2

RESIDENT MAGISTRATE’S COURT.

Gibaldine— Monday, Nov. 2nd, 1885# [Before (J, C. S. Baddeley, Esq., R.M., and Dr Fish and Captain Temple, J.P.’s] CATTLE TRESPASS, R. Morrison, for allowing 1 cow to wander was fined (third offence) 12s and costs; Thos, Corkery for allowing 1 horse to wander was fined (second offence) lOs and coats. A charge against Thos. Farrell for allowing a cow to wander, was adjourned, owing to a clerical error in the summons. CIVIL CASE. Tasker and Co v. Ohas. Groves—Claim . £6 16s &d, for goods supplied.—Mr H. B. ** Webster, appeared to represent the late firm. —Defendant made an offer to pay the claim in instalments of 15s per month, which was accepted. '‘Nefc* Same v. A. Finlayson—Claim £5 5s lOd, for goods supplied.—Judgment by default. Walker and McDougall v. B. SmithClaim £3 4s 6d.—Judgment for plaintiffs for amount claimed less 17s fid owing to defendant. Same v A. Allen—Claim £113561. —Judgment for amount claimed. . B, Smith v. Walker and McDougall— Claim £3lss.—Nonsuited, as plaintiff could not prove the dates of his claim. VAGRANCY. Elizabeth Bennett, against whom there was a long list of previous convictions, was charged with having no lawful or visible means of support. The evidence of Constable y Willoughby shewed accused had had no lawful means of support for some time, and eh efly lived by imposing upon people. Accused was sentenced to three calendar months' imprisonment with hard labor,

SHEEP SMOTHERING, Th« Resident Magistrate, Mr Baddeloy, delivered the following judgements upon the oases of sheep smothering and trespass, which have now been before the Court four or five times - B. Bailey v. Guildford—Claim I Is. Dr Foster for plaintiff and Mr Hsmersley for defendant. This is a claim for value of 18 sheep smothered by defendants’ servants. On the 19th July last, the defendant discovered a mob of plaintiff’s sheep in his paddook. She next evening the defendant tried to drive tbe sheep oat but was unable to do so, and sent his two sons at seven o’clock, at which time it was bright moonlight, to drive the sheep off his land, and in attempting to do 8018 were smothered; hence the claim for damages ; the plaintiff alleging negligence on the part of persons employed by the defendant in driving the sheep across a gully on defendant’s land at night time, With regard to how the gap Was made which enabled the sheep to trespass, the plaintiff in bis evidence states that he pointed out to defendant that bis (defendant’s) cattle must have made the gap, but seeing that both plaintiff’s and defendant's own cattle depastured on either side of the fence, I do notfsee how it was arrived at whose cattle mode the gap. Bo that as it may, Ido not see that it la proved that the gap was made by cattle at all, but the strong probabilities are tbat the gap was made by sheep, and that those sheep were the plaintiff's. Everything points to this. Plaintiff’s shepherd, who of all persons concerned should know the state of the fences, did not observe any gap till after tbe aheap went through, and the, 1 defendant corroborated this, and evidently the sheep knew where to find the gap, for they soon made for it when driven i I do not agree with the contention of the learned counsel for the plaintiff, namely, that the intention of tbe 34th clause in he Fencing Act is simply to leave outside contracts on their own merits. The clause and tbe schedules taken together quite contradict this view. It is abundantly clear under the Fencing Act 1881 that neighbors can agree to any kind of fence, and there is no doubt that the parties herein agreed to a fence and were satisfied with it, and the fence therefore became a legal one. It must not be lost sight of that plaintiff’s sheep have trespassed on defendant’s land before, and this being the ease the plaintiff had certainly no right to place himself in the position he did relatively to the defendant.—Clayards v. Dethick, IS, Q.B. 439, 446. He was cognisant of the fact tbat the fence was not at any rate, os be says, cattle proof, and also, ss a neighbor, knew that there were dangerous gullies on the land, and from these fact* and the unoontradioted evidence of the defendant, that every effort was made to drive the sheep ont by the safest route. 1 think that the plaintiff is precluded from insisting that there has been negligence in the defendant, productive of damage to himself, and here 1 think Lygo T. Newbold, 9 Ex., 802, is in point. It is Sirovsd that the boys have driven sheep beore several times, and it is not stated they were unskilful j and the father and son both swore, and this is not contradicted, that the sheep were difficult to drive. Had the dependent allowed the sheep to remain all night on his land be might certainly bare been charged with trying to inflame his damages against Mr Bailey. Tbe smothering of sheep is a thing that often and easily occurs, and the foot of the cheep running and scattering leads one quite to understand, considering the kind of country, how all this occurred, and it is only fortunate that many more were not killed. An independent witness swears that it is not dangerous to drive sheep at night, and taking the evidence as a whole Ido not see that 1 can regard this matter in any other way than as an accident, which has happened without default on the part of the defendant, and that no blame being imputable to him he is not responsible—Wakeman v, Robinson, 1 Bing. 818.— It is pure conjecture on the part oi I plaintiff bow the hole in the fence was made, and tbe probabilities ore that it was made in a different way to that which his counsel suggests. There is no donbt but that the sheep were trespassing, and from the evidence I think they have altogether been proved wrongdoersj for it has not been shown that they were on dolendtnt’a land through any fault of his, and there has been no neglect or misconduct shown for which tbe defendant shouldfce held responsible, therefore there i* no case.—Sherrod v L. and N.W.E.0.,4 Bx„ 580, and Singleton v, E.C.8.0., 7 0.8., N.S., 287. This is notan action on tbe casi: for nou-repair of fences, and even it it were it has not been shown tbat there was any duty cast on defendant to keep the fenoce in any ’different state than they were, while there was a clear duty cast on plaintiff to kee p his sheep well within bounds. A mere scintilla of evidence of negligence is not enough—Byrna v. Boadle, H. 0., and Cornman y. E 0.8.0., 4 H, and N., 781, and that is the most the evidence against defendant canid be tortured into. These eheop have wandered before, and plaintiff knew it, and -I think he has contributed to the mischief of which he complains, and with a little move Care might have avoided what has happened ; and but for this want of care the misfortune could not have happened. He is the author cf his own wrong, and has disentitled himself to complain Bridge r. Grand Junction, E. 0., 3,, M, and W. 248, and Karlin v. Great Northern 8.0., 16, 0.8. 179. Tuff v. Woman, 5 0.8., N.S. 673, is I think in point here also. It may be hard for the plaintiff to lose his sheep in this way, but he had been warned by th« defendant, and it would b® much harder to make defendant pay lor injury done to sheep which were wandering and had wandered on his land, and which I consider the evidence bears me out in saying were killed while a proper attempt was being made to remove them from defendants paddook. Judgment for defendant with ocets. Guildford v. Bailey—Claim £l2 10s, for trespass rates, 250 sheep. This is a claim for trespass rates under th« Impounding Act and the right of plaintiff to recover has been established. The claim i. made under the 6th clause of the Act anti no A ©maud is requisite. The 18th clause ren d 9 *B a complaint and order necessary. The authorities quoted by learned counsel, Perkins v. National Investment 28, L.J. Ex. 182, and Moore v. Shelly 52, LJ. Privy U. 86, I do not think in point. The number of sheep has not been questioned. The judgment will be for plaintiff for £6 5.< and costs. Dr Foster asked for leave, on behalf of Mr Bailey, to appeal. The application was however, adjourned as, the Magistrate wished for time to consider, and also to hear counsel on the other side on the matter before granting leave. The Court then adjourned to Nov. 23rd.