MAGISTERIAL

Timaru Herald, Volume LXIV, Issue 3557, 2 May 1901, Page 4

MAGISTERIAL

TIMARU —WEDNESDAY, MAY Ist, (E«for» C. A. "Wray, Esq., S.M.) AFFILIATION. A young man, charged with failing to provide for his illegitimate child, was reeianded to Christchurch. CRUELTY. TO A HORSE. C. Gabites and H. Youdale were charged with-crutlty to a horse by working it witn . sor«s. S»rg»ant Green said that the younger man, Gabites, had brought the horse into town from Pareora, a distance of 14 miles. Tht horse's shoulders were sore on each ~»idt, and the «Tiwnnl -was not in a- fit state to work. " Ntil Marquis, veterinary surgeon, gave tvidanc* that he had examined the two sorts on the shoulders, and' found that - one was a very bad one. He also found othtr sores on different parts of the body. Tht sores did not touch the harness, but would cause some degree of suffering. It was not a! very bad case, as the harness hod not been used where it would touch th# sorts, but in any case the horse should not hare been used. Constable Perniskie said that when he a*ir tht horse both sores were quite raw, and a bag was protecting-them from the collar;* : One of the sores was a fresh one, and tit other about a week old. One sore iraa about the size of the palm of the hand. .. Yondn.lt' said that he took the whole responsibility of the horse being driven to "town, a» it was done by his orders, and r Gabitu was hia employee. He asked that trim Worship should look at the horse himatif, as he did "not think it was as bad u tha constable had made out. The sores wvrt ■mall ones, and did not cause any p*rn_ An adjournment- was made for a few and after examining the horse, -pj« Worship said, that while it was not a Tuy gerious case the animal was not in a fit condition to work. A fine of £1 each and costs was imposed. CIVTL CASES. Judgment by default was given in W. Penrose v. E.'Shiels, claim £3 14s; same v. D. Bowie, claim £4 Bs. Garrick and Garrick v. N.Z. Trust and Loan Co., Limited, claim £7l ss, claim for 100 aheep, alleged to have been bought by plaintiffs, and not delivered by defendants. Mr Rolleston appeared for plaintiffs, and Mr Raymond for defendants. All witnesses were ordered out? of Court. Mr Rofleston, in opening, said that Mr Bruce Garrick, one of the plaintiffs, was at the Point sale on a certain date, and was an unsuccessful bidder for some Raincliff 2-tooth wethers. After the sale the auctioneer came over to him and said that ATr Allan, manager of the -Raincliff estate, had 1600 sheep of the" same class for sale, and that he was willing to sell them. * Garrick informed Allan that he would take -500-at 14s 3d, Bubject to approval and inspection, and .arranged to go over on the following Wednesday. When Garrick went down the sheep were in the yard. They had been brought up by two shepherds, Robb and , McKay, who, after a tally, made the number 636, both counting the" sheep. When, Allan came up he said that there were 600 odd sheep in the yard, and Garrick said jie would take the lot. They proceeded, to'count them, and in thisparticular count they made the number 736, exactly 100 more than the shepherds made it. The tallies were taken in four lots," 252, 200, 201, and' 83, a total of 736. Evidence would be called show that there was" a dispute about une of the talliss f Garrick making it 101, and Allan 100. A recpunt.showed that Gaixick's count was • right, but the tally was entered by one oi tliem as 201 instead of 101. It would also be proved that Allan was a very lining mail to count with, liable to confuse the other man. Garrick was busy at the time,- and took the sheep straight away, as he had no time to go through theni again." The sheep were~ put into a turnip paddock with other sheep, and as is necessary on a turnip paddock, a shepherd wa; there twice a day, and Garrick hhnsei west round three times a week. Abou four weeks after the sale Messrs Garrii had a count oi their sheep. The Rak cliff sheep were dratted cut, and it w;>:thiai..discovered that there was a tali;, short, acd.iiiey were jmr hack ou the tm idps agaiu. A '"lay.- after they \ve;r concte<! ai«wn, ;<nd rnn ihr-uiiih singly, the re=alt being the same. There were practically six counts, and each time it was fcnnti that there were 100 short. There were threß possibilities oi a loss of 100, ;hac they died, strayed, or were stolen. Counsel claimed that each of these conic -be negatived without difficulty. Itwouk be shown that as soon as the mistake was discovered'Garriek went to see Allan, who said there were 1600 in the mob, and pro niiseJ to draft out the balance and conn' them. If there were 1000 left there wouli. have been a mistake, and if 900 were lei: there was no mistake. The shepherdsliohb and McKay, drafted the sheep bj Allan's orders, and they were counted. A: the conclusion of the count Allan shut up his book and took it away without commtmicaticg the result to Bobb, and made, no * comment. . To" satisfy their curiosity and suspicions, . Robb and Adams counted the steep." themselves, and found 1000. Messrs Gaixick'were not advised when this count was to take place, so they, were not present. On "the 19th June, 1899, Allan wrote informing' Garrick that there was no mistake, and asking him to- call round and tee the tallies. Garrick .went round, but "could not make head or tail of the figures supplied, and went away saying he was dissatisfied. He went to see the manager of the company in Christchurch, and received a letter saying that his complaint had been re-erred to Allan,' and oh his reply they could not recognise the claim. In December last Garrick. was told that Robb had ceuEted the sheep, and when he saw Robb, Le taxed him with it-, and discovered his evidence. When ho heard Robb's ver-sv-l. he wrote to the company, but they still rSusei to recognise the claim. He Egain saw Allan, who still ridiculed the idea of there being a mistake. • Bruce Garrick,, Sterndale, gave evidence according' with" counsel's opening statemerit. To Mr Raymond: Drove the sheep from Raincliff to Sterndale himself with George tarr. He kept a notebook with the tallies, which he had compared at- the time with Allan, but" this had been lost or destroyed. Did not count the sheep when he reaiched the farm that night. When he went to see the particulars of Allan's count of the balance, saw some figures, but- witness could not make much of them. Did not- take particulars of the figures, but took Ms word that the sheep were not there. Did not ask Allan to muster the sheep, and had not done so since. The Court- adjourned at 12.50 for lunch, and resumed at 2 p.m. Bruce Garrick was recalled, and in reply to Mr Raymond, said that after he took delivery from Allan, 10 or 11 of the Ramcliff sheep were sold. Possession was given at the Sterndale yards. far as he could remember, drove the sheep there and back himself. Had made no other sales.

. Septimus Garrick, one of the plaintiffs, said that he was away when the sale- was made, but was present at the muster. The result of the count showed a tally short. Saw Allan shortly after, who said that he would count oct the balance and see if there was a -mistake. ATI an volunteered fL'e statement that if 1000 sheep were there, the sheep had not been delivered. Some tons after saw Allan again, and he said that the sheep were not in the paddock, azid assured witness that there was no mistake. • To Mr Raymond: Did not Temember giving any estimate of 70 as his loss. James Robb, shepherd on. the Kaincliff estate in 1899. said that he had been on the estate 30 years. Remembered Allan telling him tci bring in not less than 500 wethers. Mustered the sheep, and brought in 600 odd. another shepherd. McKay, tallying. Saw the sheep counted bv Garrick and Allan, one lot being counted twice, owing to a dispute. Sometime after heard Garrick and Allan at the station conversing about the sheep. Allan •aid that he would muster the mob and count the balance, and if there were 900 left there was no mistake, and if there was 1000 a mistake had been made. Was sent oct next: morning with another shepherd. C. Adams, to muster the sheep again, as Allan said he wished to count them, and AHaa and Smith counted them. After

the count Allan shut his book and walked away, teiiing witness to take the sheep back to the paddock. On the way back witness counted the sheep himseli, acd found 1033. To Mr Raymond : Was under Mr Mc- ; Kav at the Raincliff Estate for about 22 years. The! estate was taken over by the Company, and Allan became manager. Was under Allan for a little over a year. The wethers were in two paddocks. Witness emptied one paddock, leaving the other aione. Could not say how many there were in, the two paddocks, and Aiton (Aid iiot te'il him. Made no inquiry whatever when Allan counted them, as it was not his business to do so. Counted them himself to satisfy his curiosity. Told Mr Richards Allan's successor, that he had counted the sheep, and found over 1000, but could not tell about what time he told him. Had never mentioned his count to Allan. To Mr Rolleston: Did not mention the matter to Allan, as he did not know whether the mistake had been put right or not. George Parr, shepherd, gave evidence that he drove the sheep from Raincliff to Fraser's paddock. The fences were quite sound, and no sheep strayed or died. Herbert McKay, shepherd, gave evidence of the mustering and tallying of the sheep. Charles Adams gave evidence that he and Robb counted the sheep after Allan had counted them, and found 1000 sheep there, and a few over. Mr Raymond, for the defendants, said that the plaintiffs had brought a case of a peculiar nature at a" somewhat late hour. In a case of this sort, brought a year or two years after the event extreme and convincing evidence must be adduced. It was manifest that once a bargain was made, delivery given, and possession taken, great care must be taken before that bargain is disturbed. Tht suggestion had been made that Allan had been fraudulent, it would be shown that there was absoultely no benefit to come to him by so acting. He was under the arrangement with his company to leave their employ at the time, and did leave two or three months afterwards. The ordinary motive was absolutely absent. The whole action was a mare's nest, and was founded on a mistaka on the part o£ the plaintiffs. The • wethers were in two paddocks, and Allnti did not, as the shepherds said, give orders to bring 500 more, but ordered one paddock to be drained, as he knew approximately what number were in that padock. The sheep were run' through in mobs of about 200, with extreme care. There was no mistake about the Ist, 2nd or 3rd counts, both Garrick and Allan putting them down in their books. The sheep were ' taken possession of by Garrick, who drove them away in a hurry, over an open riverbed, where other sheep were about. He did not count them when he got home, and later on sold same to Mr Cunningham. Allan would prove by his books that he "had 1022 wethers in his paddock. Then came the suggestion that if there were 900 sheep there, there was no mistake. The witnesses had assumed that there were no more sheep, but the evidence did not show that there were no more. Counsel .rould prove that when the sheep were in the paddocks the number was 1690, besides 20 others," and some brought down from running with the lambs, so 1022 were what Allan expected to find. With regard to the two shepherds, it would be shown that Robb had only communicated uis counting to the present manager on the eve of his leaving, and as Allan was a, new broom to him, his feelings towards -iim were not so friendly as he had stated. William F. Allan, formerly manager at the Raincliff estate, gave evidence that there were 1690 sheep in the two paddocks, LOgether with 20 2-tooth wethers, and a number which had been brought down from running with the lambs and separated, which would bring the number up to 1022, after the 736 were disposed of. Witjess denied that he had ever said that if oe had 1000 left he had Garrick's sheep. To Mr Rolleston: Garrick said he wanted 600 or 700, not 600. Was positive ao other sheep had been sold. He did aot bring in the sheep for the express pur>ose c? counting them for Garrick on the econd occasion. The dividing fences- ■ ere not good, and some wethers migh. ,ye strayed among the lambs, lo His Worships It was very likely v ..i Robb made a mistake when he sail .:sere was 636 instead or 100 more. Ho c.-uid not make a certain count rqnning them through a gate. R. T. Richards, manager of Raincliff estate, gave evidence that the method of counting adopted by Allan was particularly •areful. Had never heard complaints lbout his counting. There were certainly jot over 100 sheep on the station more than there should be. Robb and Adams were given notice in December, and neither had ever mentioned that they had counted tie sheep. Robb told witness that if Garrick took proceedings, and his opinion was asked, he would favour no one. A ■ian should be able to tell if he were 100 ■heep short when he was driving a mob jf 700. To Mr Rolleston: The wethers might have strayed in among the lambs from the two' paddocks. As it was 5.15 p.m. when the evidence ■ was concluded, and counsel wished to review the evidence, the case was adjourned till Wednesday next. The; Court then rose.