RESIDENT MAGISTRATE'S COURT.

Temuka Leader, Issue 1953, 8 October 1889, Page 3

RESIDENT MAGISTRATE'S COURT.

Tbuuka— Monday, Oct. 7, 1889. [Before Captain 0. A. Wray, KM.] OBSTRUCTING A BAILIFF. Biuley v. Tindall —Mr Aspinall fnr plaintiff, and Mr Cathro for defendant, : This case was allowed to be struck out, arrangements for settlement having been arrived at. DISTURBING THE SALVATION ARMY. Henry Davis, who did not appear, was charged with unlawfully disturbing a conygregation of the Salvation Army on \ Sept. 22nd. From the evidence of George Smart u appeared Ural witness had orders to stop defendant from entering tho barracks. He, however, eluded him, by blacking his face. His- appearance caused a disturbance. Defendant left when requested. Constable Egan ; Was on dcuy, and was complained to by the last witness of defendant’s conduct. Took him to Mr Nicholas’ stables and made him wash his face. Defendant said he had adopted this means to enter tho barracks. The case was allowed to stand over for a week so that defendant might be present. TRESPASS, A. M. Clark v. Jamas Kennedy and Patrick Doily—Claim £2O damages, caused th Mr sVmond'for plaintiff, and Mr Wilson Smith tor defendants. This was a case of trespass, and the special damages claimed were for loss of lambs caused by defendants action, , ■ - Robert Watson, shepherd : Was on. Mr Claik’a land oh tho 17th last month. Saw Jambs Kennedy in a turnip paddock. Daily was on the road, - Kennedy was i following a dog which wae running after a ■A hare in the paddock. Daily had a gun. Tha dpg .caught the bare, and Kennedy Ibft tße r pad(iock and joined Daily. , They Went up the road for some distance, nand, west into a paddock in. which there were ewes and lambs. WitneßS went into the same paddypk. The accused were standing.at’th© lower ©nd of tb© paddock, Saw the greyhound following a hare amongJthe ewss and lamb?. Tried to stop* it. The ewes were greatly disturbed. Could not stop, the dog. Went to see,. Daily and Kennedy, but could not find ;them. The dog came up and witness followed it. The defendants were in an old shed in an adjoining paddock, Asked them why they went into the paddock. They denied being there. Told them it was no good denying it as the dog had followed their tracks. They then admitted being there. - Next morning wont round ■ the paddocks, and found a lot of lambs smothered and miss-mothered. , Ewes frightened by a dog were, apt milk fever, 'and lose their wool. The lambs, get , miss-mothered and die. They were maiden ewes with their first lambs. There were 30 Jamba dead. Craas-esamined • Saw Kenaedy on the bridge side of Hilton. Was two or thrb’e chains away. Saw a man named Leary, and told him that if he (witness) caught them (the defendants) in the paddock they would get into trouble. Kennedy hid no gun. Did not hear Daily or Kennedy calling the dog. It was probable Daily conld sea him in the paddock. A Kennedy could see biro. The defendants w. would know witness. When they entered the second, paddock they might have known he was following them. The greyhound followed the' defendants by scant. . Was not aware that greyhounds had no scent. Some greyhounds he. - knew could follow by scent. Might have spoken to other meu on the place about the trespass. Reported it next day to his employers. The ewes were lambing well. The weather was fine, and there was a good lambing. The dog was In the midst of the sheep. Did not recognise Kennedy at the time he saw him in the paddock. Did not know who he was at the time.; Knew Him afterwards. - By the Bench : The occurrence took place at about 5 o’clock. Found the dead Jambs next day. By, Mr Smith i Saw a man named Ryan the following Friday. , Might have told him that he (witness) would not have reported it unless the ploughman had done so. The property, he believed, belonged to the Bank of NeW Zealand. Mr Clark was “ boss.” By Mr Salmond : The defendants eould •have seen him if they had looked; They left the sheep paddock and want into a disused shed. John McOoll, overseer ou the Arowhenua Estate : Kuew the paddock where the ewes and lambs were. Went to it on the evening following the 17tb. Pound 17 lambs newly dead and a miss-mothered. Went again on Sunday. Counted 37 dead lambs. There must have been more, as fad did not go into the rough places. By tho.look of the ewes there must have been at least another 20. About 10 or a dozen would be,all that would have been the case in an ordinary way. Had experience as a-shepherd. Afier worrying, lambs y--- die, ewes get ailk fever/lose their . woo’, and sometimes cease to breed. If the lambs had been kept another two months they would probably have been worth 7a or 8s each. . , , Cross-examined : Did not seek .other cause for mortality. Was informed by the shepherd that the dog was among them. The lambs had nothing wrong with ' them. They died from want of milk. The sheep were rather wild. They had not been driven lately. Went among them occasionally with a dog. The dog would not leave his side, and the sheep would not be frightened. Attributed the loss to the dogs. The matter was first reported to him by Watson, the shepherd. Was not told by the ploughman. By the Bench : Had not reckoned up the actual loss in that paddock. John Oliver, laborer: Was working at Hilton six weeks ago. Saw Daily inside the paddock with a gun on his shoulder. Supposed he was shooting. Spoke to him and told him he would get into a row. He said he did not care for Mr Clark, or any of the rest of them. Cross-examined: Lid not hear a gun fired. Could not say if there were sheep in the paddock. For the defence, Mi - Smith submitted that there was no •case to answer, as the property did not belong to Mr A, M. Clark, but' to the Bank of New Zealand. Before asking for n nonsuit he would, howeyer, go into the facte of tho case. . , 1 P Daily : Remembered the 17th Sept. I At about 6.30 went up the river to Mr > leary’s property to have a shot. Kennedy went with;him. When u jaboit way up the road saw the greyhound, which had followed him without his knowledge, start a hare, ,«»d course it from the rjver-

bed to the turnip paddock. Commenced to whistle and call at the dog, but it was no use till it had caught the hare. As he had a gun did not like' to go on the property, but sent Kennedy, who brought the dog back, but not the hare. Was then sitting on the bridge talking to Ryan. There were no sheep in the paddock. Kennedy tied a handkerchief round the dog’s neck, and they went further down the road. Saw , Watson in the paddock where the awes were. Kennedy let slip tho handkerchief off the dog, and it jumped the fence into the paddock. They jailed the dog. There - -were no sheep within 30 chains. Watson was among the sheep. Neither Kennedy nor himself went into the paddock. They saw Watson coming down following the dog, and trying to catch it. Watson got on his horse and followed the dog to where he and Kennedy wore. The dog did not go 2 chains into the paddock. Did not go into any hut. Watson crossed the fence after the dog, and taxed him with letting the dog into the paddock. Witness said there was no barm done. Watson said “No, but it is bad for a dog to be in the paddock when the ewes are lambing.” Watson then accused witness of being in the turnip paddeck. Witness denied if, and Watson then said that it was one of tbhm. Watson said that if they did not let the dog into the paddock again there would be nothing said about that time. Did not hear anything further until he received a summons.

Cross-examined: On the day in question was going up to Leary’s to shoot. It was about half-past six, not quite dark. It would take three or four minutes to walk to where he was going. It whs very late in the evening when they saw Watson. There was a sort of hut used for (Slaughtering purposes onj Mrs Tindall’s land/ They did not go in. They were on one side of it. Never admitted being in ithe paddock. On ihe occasion referred to by Oliver his dog went into the paddock. He followed it to get it back. His boy was ion the road with a trap and horse. He Was on the way t# his land at Opihi. ‘ By Mr Smith ; Believed tho property belonged to the Bank of New Zealand. ! J. Kennedy : Game from tho Mackenzie Country on the I7tb. About six o’clock' Went out with Daily. When they reached the bridge like; dog followed them, and got into a turnip paddock. At Daily’s request Invent after tbe dog and brought it back. Tied it with a handkerchief. They were jgoing to Leary’s load. They went into a paddock of Mrs Tindall’s. The dog accidentally got loose and went into (the next paddock. They saw Watson, who tried to catch the dpg.; He followed; the dog back to where they were. Watson accused Daily of being in the turnip paddock. Witness said that ho was the man who had been in the paddock., Watson roust have been.a quarter of a mile away when the Hare was caught. The hare witness gay® to some school boy*. : Cross-examined : They passed Leary’s land, and went into Mrs Tindall’s paddock. They were not in Mr Clark’s paddock after passing Leary’s. The dog went in, and they tried to call it back. Tied the dog after leaving the turnip paddock. It escaped when passing Mr Clark’s land. The handkerchief slipped out of his band. Would swear it did pot chase a hare. It was not running among tho sheep. The sheep were a good distance away. , By Mr Smith ; Watson came quickly through the sheep. By the Bench : The dog was not away more than ten roinntes. They could see the;dpg the whole time. The dog was not after a hare. It was just trotting round.

Patrick Ryan ; Remembered seeing the defendant going up the road from Hilton towards tbe bridge. When ihe dog was n the paddock witness could have seen Watson if ho were within three chains. Saw Watson afterwards, who told him he would not have reported the matter if the ploughman had not told Mr McCoP. A. M. Clark; Was employed by the Bank of N.Z. The property ea which the trespass was committed belonged to tho bank. Took action as their agent.

By the Bench : Could only judge of the amount ; of the damage by the report brought in. Considered that the lamb should be yalued with, its mother. The owe bad been kept for tbe increase. Tffe wool would about pay the grazing. They looked to the increase for profit, if milk fever set in tbe wool would be damaged/ The lambs would cost nothing to keep, and would bo worth in about two montl}B /78 each. This represented the loss, except the prospective loss by damage to the ewe.

By Mr Wilson Smith : The ordinary less in lambing in such a season ae last would be about,2 per cent. Mr Wilson Smith addressed the Banch, and briefly reviewed the evidence, contending. that Watson’s story was a mere fable tcTaccount for the mortality among the lambs. Heisubmitted that there was no evidence to connect his clients with the danaage. He urged, further that he was perfectly unaware of the evidence to be brought iagiuftst liis dlwhts, or much more evidence could have been brought in their fayor. Thequestionpf nonsuit was quite clear. There was no evidence before the court connecting;Mr Clark with the land. He was not even the occupier. Mr Salmond also reviewed the evidence. Ho .submitted .that the Resident Magistrate had ppW|er to order the record to be amended so as to,.have the Bank of New Zealand ( Substituted for Mr Clark as plaintiff.' He quoted in support of bis contention No. 3 Law Reports, Vol. 6, page 134, Darrel and others v. tho Corporation of Lake County. Mr Wilson smith submitted that the case quoted by bis learned friend did not apply in this instance, end drew His Worship’s attention to tha heading of the case.

His Worship said be regretted the nonsuit point bad been raised, as it was only deferring the question. Since it had been pressed he would take lime to consider, and would,reserve judgment. Dr J S. Hayes v. J. Baumber—Claim £2 3,7 s ; judgment summons.—Ordered to pay forthwilh, of in default 7 days’ imprisonment. The Court (hen rose.