DISTRICT COURT.

Timaru Herald, Volume LIII, Issue 5269, 21 October 1891, Page 3

DISTRICT COURT.

TlMAßT7— Tuesday, Ocxobeb 20in. (Before Kia Honour Judge Ward,) CASE POSTI'ONED. O. Bishop v Job Brown and others ; argument for nonsuit on finding of a jury. On the application of counsel this oaee was adjourned to tjie noit ordinary sitting. BE BBUCB'S KI&&IK& COMPANY. , On tlio application of Mr Jfriubley Hia Honour Sighed the cases for appeal tiir/tßeid and Gray and Jan. Guild, and ordered lbs papers to be sent to Dunedin. CIVIL (USE. : W. 0- Smith and <3.J. Denniatoun, as eietutors of the late Angus Mnedooeld, V'Patriek McCarthy, alojm £29 19a. Mr Perry with him Mr Kinnerney tpv plaintiffs,' Mr Eaymond for defendants. This case was hoard before the following jury !— W. B. Border, CX H. O. Clarji, 8. H Davies and T. Fodon. . . The short faatu of the plaintiff's cbbo bb itftted by Mr Perry to the jury were aa follows :7— Plaintiffs, :m oxeoutor* of thelato Angus Maodonald,, with Mr Henry Ford us their monagor, hold an estato on the Orari of about 5500 acros freehold ard 3115 acres leutehold (the ramnant of the old run), this portion being still m tussock. The defendant owno lOf) acres adjoining the leasehold, and adjoining hia Jand is a 50 acre section, R.%. 32331, belonging to « Jf r Furby. Ihis section is m tussock, unfencod, tnjj ibo plaintiffs' sheep bad beon all along acoustomed to fped on it, and neither the plaintiffs nor their manager b^d eiot rccoived notice from ftnyono that their . tbffep we™ D 0 longer at liberty to run there. On the Sift September Mr Ford was at Tomufca and was the/o informed by tologram that 370 of his sheep we'ro m the pound at Goraldinc. He wont up to Gorald.io(» kfe -fchepajno night, and paid the fees demanded, under pr,<^«^, /tnd arranged to go), the sheep out early nojt day, Wfi m T «nw tho shoep m tho pound noit x^ovninp^ ho saw at onco that they had beon very jnuc-h oyo?driyen. He was told they had baen impounded by MoOoriby ; s^d Intor on ho aerert'iiced they

were impounded frorj3|Furbj'sunfenc£deoctiou. Tlio defendant had driven these sbeep, henvy m lamb, bo badly and co carelessly that 18 of them died and the rent of them were deteriorated m value ; 16 of them dropped before they bad gono three-quarters of v mile from tho pound, and soon afterwards sevoral others dropped, two of which died! Tho plaintiffs therefore claimed from defendnnt," the valuo of 18 sheep nt Bs, £7 4s ; injury to 852 others at Is, £17 12s ; paid foi< feed iv pound, £4 3s ; and driving fees, £1 ; total, £29 193. ' Defendant undertook to justify hia position, to show that ho had some right over Mr Furby's 50 acre section. If he had no ru.hfc over that saction bo had no right to inijiJu-id sheep from it. Assuming that defendant had a right to impound them, then it was his duty aa well us anybody's 'duty, to do it prbporly, and with, oweo m lamb to drive them with the utmost care to: avoid injuring them, Evidence would bo given that the sheep wore well treated whilst m the! pound, and tho jury would bo asked to conc'.uda. that tho sheep were injured m driving thorn: to the pound. It was . nil extra-' ordinary courso that defendant , adopted m any case, as the law pormitted him to impound'sheep on his own place and give notice to the owners, and m this case Mr Ford lived only 2J miles from defendant's lunu. .'! hat was the oourse any reasonable man would have taken, when owes m lamb, were m question, instead of driving them 10 or 11 miles to the pound, and driving them so ; badly as to kill 18 of them. ; Tag first witness was the plaintiffs' manager, who m tho oourse of his evidence said that immediately he started to gut the ( sheep out ot the pound he saw they bad been 1 over driven and said so to the poundkeeper. Five or six dropped quite neur tho pound, and he then atked Herlihy the poundkeeper to get a enrt to pick up all that dropped m the town, as they could not be left m the street. Sixteen fell, and worn carted bant, before he; got to the stone bridge— about J of a mile. Thirteen otters dropped batweeu Geraldine ned Oruri and /he. lifted them over tho fences into formers' pad-, docks ; and Sve others were only got to: tho Orari, about 7 miles, with great difficulty.' When told by the poundkeeper that the sheep were impounded by McCarthy, he supposed they were taken from his own fenced 1 section, and* he pent a man round to see where they bad got m, but he found the fence nowhere broken down. Some dayß laier ho saw McCarthy, iwho pointed, m the direction of the ruu, said he impounded them fr»m thore, and then walked off. Of the 16 sheep carle:l backby the poundkeaper 13 wore dead, and atao 4of those that dropped later, and 1 that reached Orari station. They were worth at least 8s each, and Is ouch wns » reasonable estimate of the injury to the mob. Xo Mr Raymond : Had no permission from Mr Furby for the sheep to run on his section; they cauld not help it as tliß section was unfenced- Once before defendant impounded somo wethers from his fenced section, and on another occasion turned forne out on the run. I'old defendant he would repair the fenco if tho abeep broke it, but told him the sbeep had not broken it. Mr Raymond then pro ceedeH as if to elicit that the witness bad himself over driven tho sheep from tho pound. The witness oaid he took them as slowly as he could, but not no slowly ss ho wished, 113 there were about a dozon of a neighbour's dry hoggets m the lot and they would go ahead. He had a very good dog. The poundkeoper, referring to the way tbe sheep were brought to the pound, said he had never seen such a disgraceful thing before. John Murray, manager of the Orari estate, J. Airay and W. McOully, experienced shepherds, said tbat tbe journey to tho pound would not have injured the sheep if they bad been properly driven. They ought to bavo been taken by the coach road, not. by Poetle thwaite's road, bo as to avoid unbridged creeks. These witnesses substantially agroed with plaintiff's estimate of value and damage. In reply to Mr Bayirond, Mr Murray end Mr McCully said the Bheep should not have been driven awoy from the pound seeing the state they were m, at more than a mile an hour or bo (Mr Ford admitted bo took them seven miles m four hours), but McCully said the most, ignorant man could not havo knocked up sheep, m gooet.oondition, so that sixteen should drop within three 1 quarters of a mile. ■•■■•• At this stage tbe court adjourned for lunch. On resuming, James Wilkinson and William Hawko,- farmers, gave similar evidence. James Robertson, groom to Mrs Maodonald, Waitui, fetched m n, cart the sheep picked up by tbo poundkeoper the sumo day. I'hrse were already dead, and 12 of tho others were so bad that ho believed they oould not liva and he was told to kill thorn. Tbe other three wero alive now and all right. Examined onn and found the lamb tiliro. People said the lambs must be dead. T. Horiihy, , poundkeeper, producod his pound book nnd gave evidenco therefrom. Iho sheep hnd plenty of room and plenty of I'ood and water m tho pound Mr Kord took them uway at daybreak. " Assisted him to take them through tho tosn, about a mile and a quarter. .She theep aeon began'to flag, and six or seven of them dropped within 10 chains of tbe pound. On going back put, them, iq aafe keeping until he sent word to Mrs Macdonald to fetch thorn. There did riot aeem anything wrong with tho shoep when tbpy were turned out of the pound, except one. Neyor eafd anything to Mr Ford about it being "the most disgraceful thing ho had ever Beon," roferring to tho pondjtion of tho sheep when they worn impounded. To Mr Raymond [Assisted to put tho sheep into the pound and . counto-l them. They did not ecem distressed at all, apd nono of them dropped down, McCarthy suggested putting them into threo yarx'a lo give them more room. Fed tbem wilh chaff and bruehed oats but they did not touch it till the next morning. Mr Ford mado no complaint when he camo m the morning and tho sheep appeared all rieht. Mr Ford' bad ono dog, Mr McCarthy had two- Hnd some trouble m getting some sheep out of the back yards, and oupposedit was through tho dim light. Thoy soemed qnita stupid Half were got out first and they cleared away sevon or eight chains and the doe fetched thorn back. It was a general'- purposes dog, "a jolly good dog"; but it'was not a leading dog, it only headed and stopped them. Aa soon as they started to drivp tho'Bheep they began to drop. Never said it was .'.'. A disgraceful thing." Did say it was a pity they ponld not settlp such thingß at homo. To Mr Perry : Thd Bheep ato the feed, and seemed quite right on tbe 22nd. A. B. Oox, etook agent, said tbat it would be most prudent to take snoh shoep by the aoafih road. It rould not iojuro sheep m good condition to bolt a few chainß, and be brought back. Had novcr known Bhoep ,to be knocked, up by a little run liko that. Bid not know the shoep and did not euro, to give a value of estimate of injury. : To Mr Bayinond : Tho creeks on Postlothwaite'a road : had been dry, but thought they coro fulf on the data named. Tp tho fosemsn.f The stupidity of, tbe ehoep m tbo pound, their refusing . wod, apd thp dropping on the road,, ho would supposo was due to tbo death of tho lambs. W. O. Furby, carpenter, Timaru, was owner of an unfenced 50 aero sootion adjoining defendant's land. Defendant wroto to him iivo or six weeks ago, about leieinc tbe (ration. Ho wrote that ',' tbo sheep ■were getting on £helf»nd ugoin, and offering him £1 a y.car for tbo use of his seotjon." Before that dofeudant say him apd told him ho had trouble with tho .sheep getting through' his fonco, t»n<j tbijt ho pould not impound off witness's section, unlflOD ho bad .t> lease of it Ho replied to dofondont'i'le'ttor accepting tbo offer of £1, and askiDg that it bo paid m advance. That Was all that bad passed bo- 1 tweon them roßpooting tlie occupation of tbo eoction. This olosod the caso for plaintiffs, and Mr Raymond opened tbo case for dofondant. There woro two questions involved, whether tho defendant had any right to impound the sheep nfc ail, and irhbthor ha hod injured the sheep by negligent driving. Hp would contend'that the defendant had 'obtyjn'e^' ft Bufllcient authority for ocoupatiori "from' Mr Furby to onablo him to impound. Tho main .question, w?s £hat of negligenco, and the onus of proving that dof«ndanji drove tho sheop 1 impropurly lay on tho plointitfu. H» yould i prove that ho drovn them openly, by tbo . shortest accessible road, find two wituoiiseß 1 would bo called who caw him on tbo road, r and would siato that ho waß taking them

along very quiet ly aud cate u'ly. This cvi : dence, coupled with that of ilerlihy, who was called by the plaintiffs, would clearly establish not only that the sheep wero not damaged by defendant, but by Mr Ford bimaeif, ho being improperly equipped with dogs to keep the sheep from bolting about, anu from the manner m wbioh he treated the sheep. Patrick McCarthy, dofeudant, produced his title to bis land. He doeo not live on it, but was camped there, ploughing, on the 21ot. The fence between bis nnd Furby's land was a double sod wall ond' three wires. Had oonstant trouble with plaiqtiffa' sheep breaking the fence and getting into his turnips. Whan a;ked to help to repair the fence Mr Ford refueed,' e'oying if" witness ' wanted to keep out the sheep' ho must ninke up the fence hi™ e elf. Ho had Mr Furby's reply before the 21»t. On the 21st 'be' saw sheep on Furby's laud, some of them feeding on ( the gorse. B o took charge of a lot nearest tbe 'teape'? and took tbem ,bj. the shortest and nearest road to the pound. Had no trouble with Mr Murray: Mr Murray was always rcatiy to .help to keep up the fences. Had ohainod tbe road to thp pound and made it 8, miles and 75 chains Met with only ono creek with wator m it, and that waa yerj/ low. Dr^vo tho sheop very carefully, seeing that thoy wore ewes beavy-in lamb, and ha di 1 not want to injure them. • Had ono good dog and a yoiiDg one. 'the sheep wero not hurt byhiß driving. The first he heard of this claim was through the summons; no previous requaat; for payment was mado^ . . . : ; , /ilV ,v..- '■ :> To Mr Perry : Obtained verbal permission from Mr Furby six or'seven months .ago to impound off hisßection. Told him Mr Ford would not help to repair tho fence when damaged by the eboep, and Mr'Furby eaid he oould not afford to repair tho fence, and added, "If you had my section you could pound the sheep off it and protect 'th« fonoo. ' Told Mr Ford ooine inontho ugo' that he had leave to impound off tbo aeciion j but ho had not done so before tins occasion, aud after gotting Mr JTurby's letter, agreeing to take £1 a year for the land. Did not know ho bad any other remedy against Ford. Had not inquired aboiit his legal rights. . Bis Honour remarked that fch? leaseholder is m a peculiar position, as anybody elso had aa much right as he to run sboep on the purohased acd unfenced sections. (There are such sections totalling about 1000 acres scattered among. Bsoo aores of the leaeobold.) The defendant, His Honour faid, bad no legal claim upon the plaintiffs,: to repair the fenca which their sheep bad damaged, but na they had the run of the 50 aores it was, not unnatural that defondant should look to them for assiitanc9, as on a moral olaiiij. He would have an action for trespass if tho sheop dumagad.hia fence. , .'. ?i Mr Kinnerney said they would contend tbat tbe defendant took quite the wrong courso m impounding the sbeep. Dofendaut, continued : Tbero were some legal proceedings over tho preceding impounding case, which were settled by the Bolicitors. Never told Mr Ford he would pay bim out for that business. Since this oa?e had imponndud 550 more sbeep, on bio own land, but released tbem ns Mr Ford positively refused to pay anything Did not go to Ford about tho 370, as Ford threatened bim with tho law whun be previously told him he would impound tho sheep. He did not want to ccc Mr Ford again. Drove the aheep across a portion of the run before reuohing a mun road. Was making no use whatever of tho 50 aore section. Mr Ford oimo to ask him whore the boundaries of that section were; told hiai whera.it lay but that he had nottime to show him tho pegs. Defendant then described incidents of the drive to Geraldine, and on tbe conclusion of his cvidaoce nt 5 p m the oourt adjourned till 10 o'clock this morning. Mr Raymond Btaled ho bid four more witnesses to call. IN BAHKnTjPIOiDurm2 tbo afternoon the following bußiaesa was done ; — Mr Raymond appliod for his (solicitor's) costs m tho bankruptcy of W. G. Drumumnd, for whom they wero no lorjpor acting. Tho bankrupt hod net yot applied for his discharge. Mr D. M Robs, Deputy Assignee, naid tho bankrupt had had money with which be could very well havo paid these costs. Order granted. Mr Raymond made a similar npplicntion.ia respect of tbe bankruptcy of B. iC. Hibbard. Tho bankrupt evidently did not. iaUmd to apply for bis djsoharg) at present, and ho iMr Raymond) wished tor hie costs co far.— Order granted as a final order for oosts, Mr Porry (for Mr Whito) made a Bimiiar applicition for co3te m tho bankruptcy of Mrs Porcival — Granted on tho sanie terms as the previous one. PEOD4TR. On tbe application of Mrßaymond probale was grunted of the will of tbe late Thomas O'Driscoll.