MAGISTRATE'S COURT, HAMILTON.

Waikato Argus, Volume XV, Issue 6044, 18 September 1903, Page 2

MAGISTRATE'S COURT, HAMILTON.

Yesterday. (Before Mr W. H Northcroft, S.M.)

On the Court resuming at 9 o'clock yesterday morning, Foitescae continued his evidence, dealing with the conversation at Mr Melville's, as already outlined. In it Raynes said he was not goiDg to be dictated to as regards what paddocks the cows were to be confined to. Defendant maintained tlvvt the cows were not in Benton's charge, and that he intended doing what he liked with the paddocks, and putting the cows whore he liked. No attempt had bt-en made by the 24th to remove the sheep. Witness saw defendant) on the farm on the Tuesday inoruiug. Benton, however, was not there until i>n hour later; but Raynes did not enquire for him. Just before the agreement was signed Raynes said he would probably want to keep his share of the calves, and it was verbally agreed that when the calves were sold the two parties should toss up for first pick, the defendant to remove his share of the calves to his portion of the farm. By Mr Swarbrick : Raynes pointed out certain paddocks and said, ' You will have these paddocks for the dairy cows.' He did not say ' Thosa are the paddocks io which you can put the dairy cows,' but 'Those are the paddocks you can have for the use of the dairy cows.' Witness did not recollect dofendant sayiDg, ' I decline to permanently allot any paddock, but will from time to time allot ; paddocks in writiug, if necessary.' Re-examined by Mr Cotter : There was no doubt whatever in his mind, after the conversation of June 29ch, as to the paddocks allotted to Benton. John Stephen Fortescue said he was from the sth June to 31st July in the employ, of defendant. Raynes, in referring to the agreement, gave him to understand that certain paddocks (enumerated) would be used by Mr Benton for the purpose of milking- On July 15th witness had mentioned to defendant that it was very fortunate, owing to certain alight; disagreements, that the portion used by Benton would, with the exception of 40 acres new grass, be distinct from that used by the former. To this Raynes agreed. On Monday, 24th August, witness saw Raynes, who came to where he was working, haviug a conversation, during which Mr Mac Diarmid'a letter was produced. Upon witness saying he did not know things had gone bo far, Raynes said it looked as though he would get £l5O for doing nothing. On the following Thursday, Raynes again called on witness. Speaking about Benton, he said certain things in connection with the case, that may or mßy not come up, were so terrible that he advised him to disappear. Nothing short of a miracle would prevent these things turning up. Up to the 31st July he had no doubt whatever as to tho paddocks to be used by Benton. Cross-examined by Mr SwarbriGk : Advised defendant to arbitrate.

Cornelius Day, farmer, of Tamahere, had been connected with dairying for a great number of years past. He had read the agreement in question. Cows for milkiDg require the best of feed. As a practical man did not consider running sheep with milch flows, in the same paddock, would be proper treatment. If they wore dry cows waiting to calve it would not be best to give them very good feed ; a fair paddock with straw would be suitable. After calving they should have better pasture. Sheep running in the same paddcck would cause milch cows not to do so well. The terms of the agreement could not be carried out uoder a dual control of the paddocks. Cross-examined by Mr Swarbrick ; Inspected the farm with Mr Benton on the 25th August, but so far as he knew Raynes was not aware of the visit, the object of which was to obtain witness' opinion as to whether there was sufficient pasturage. In the paddock were about 60 cows, which he thought were doing very well. Were plenty of straw given they would do very well in the pasture until they calved, most of them appearing about a mouth off, and many more than that, Benton aaid they had only been on two or three dayß, upon which witness replied "Of course that makes all the difference, for at the end of a month there will not be muoh left for them." The bulk of the straw was very good, witness pointing this out to Benton at the time. Having reeard to the condition of the cows at that time, he would not consider them improperly fod. It is not desirable to put cows on rich grass before calving, ncr until a few days after. Then they should be fed on the best feed available. Witness had again visited the farm one day last week, when he saw 40 or 50 acres of new grass, suitable to place the cows on after calving. The cattle had about ' held their own' between the dates of hia two visits. Were the cattle kept in a bare paddock until they calved, and then put on the new grass, beiog shifted from timo to time, in ordinary farming that should do. Up till the time of calving it would not hurt for sheep to run with the cows, if there wero sufficient feed, although he could not seo how there could be with 60 cows and 300 sheep in a 75 acre paddock. There were no sheep in the paddook when he Baw it the second time. Were the paddock clear for a month there would be sufficient feed. It was advisable to shut up the paddocks for milch cows at least a month before calving. It was not usual in the Waikato to feed milch cows on grass all the year rouod, turnips being u*cd in the winter. It would bo better where there is plenty of grass. By Mr Cotter : The first timo he visited the farm he saw a 40-acre paddock shut up without stock on it. Assuming that all the stock had been left in the paddock referred to previously, there would have been sufficient feed for a month, but it would not have been proper to keep them on for a whole twelve months. If the paddocks were allotted, it was only proper that they should have been shut up by the first of August. M. B. R- Horneman, a farmer of 45 years' standing, of which 19 years had been spent in Taranaki, and one in Waikato. The whole 20 years he had had to do with dairying. In his opinion it was not suitable to allow sheep to graze in the same paddock as milch cows. He had visited defendant's farm with plaintiff on the 24th August, when he noticed horses and fheep in the same paddock as the dairy herd. There was little or no grass in tho paddocks, oxcopting where the horse 9 were. He saw the stack of straw, and found a portion of the straw very good, and a portion very inferior. Being aware of the terms of the agreemont, on 60 cows a fair average profit would be £8 or £9 per year. By Mr Sworbrick : There was not a great deal of difference between the feeding in Waikato and Taranaki. It was uot the practice to keep dairy cows on grass all the year round, and at this season of the year, it would not be liable to bring on a milk fever were the cows placed on good feed before calving. The cows were in fair to firstc'aee order, and did not appear to have suffered from the want of feed in any way. It would affect cows as dairy cows to put them, while milkiDg, on land fed off by sheep, if spelled a month. Seven or eight weeks should be allowed. He should prefer not to put milking cows on land whore sheep had been feeding eight weeKs previously. This closed the plaintiff's case. Mr Swarbrick then opened for the defence.

J. J. Raynes, farmer, residing at Tamahere, deposed that he had been a on the farm all his life and had had experience in dairying. Before signine the contract Benton was shown over the whole farm. He saw all the stock on the place. Witness told him the bull had not been with the cows till 7th December and they would calve about the middle of September. Both understood that the

milking would not commence till September. Witness had 450 acres--340 in grass, and 50 nr 60 in cultivation. There were 40 acres in new grass At this time last year he had 400 sheep and over 100 head of cattle and about a dozen horses ; they all did very well. H> had fattened 100 per cent of lambs and 300 ewes. He had told Benton that he could not allot paddocks permanently, and had flatly refused to do so. He told him that it was. never done in the Waikato, but he would allot paddocks from time to time as it became necessary. Benton and witness considered the question as to keeping fences in repair if the paddocks were only temporarily allotted. It decided that witness should eet all the fences put in repair before the con tract commenced and any breakages Benton would repair. Outside of the 170 acres thero was no necessity to repair fences. He paidßenton for dcingthe work. The fence in the turnip paddock was put up half by Benton and half by Fortescue, working for witness. This arrangement was made beoause witness had some steers in the paddock. On 29th June Benton asked where the cows would run ; told him they would run in the paddocks handy to the yard. Never meant to imply that they would be allotted permanently. On Ist Auguat there were plenty of turnips to keep the cows for a month. Afterwards they were to go on the paddocks next the river. Was keeping for the first few that came in the 40 acres next Melville's. The paddock is theepproof. Also had 40 acres of young grass. Also had 100 acres just beyond the young grass; with the exception of the new grass it was the newest on the farm. That would have been available for the milking cows if necessary. Had engaged to grow maizo and mangolds, if neces« sary, on the turnip land. There were also 50 acres for dry cows. For some days previous to 1 Benton leaving there were four cows running on these. On Ist August there was sufficient feed for all the stock ou the farm; they were all doing well. Had made provision for the sheep and steers. Had bought turnips from Mr Bagnall ; Benton knew this. Had also arranged with Mr Baguall to put sheep out on '24th. Could not take them on the Monday, mainly owing to the steps Benton had taken. Took 100 ewes and 100 lambs on the 26th; they and the bteers have been away ever since. Up to 21st August the cows were running on the turnips and doing well. Next morning Benton and Fortescue were riding towards the cattle, which had then come across from the turnips to where they were fed with straw every morning. Asked Benton what they intended doing. He said they were going to put the cattle in the 40-acre paddock, next Melville's. Witness said : ' I do not want them put there. I wish them to remain where they are ; they are doiug very well. Benton said something about he would rather have nothing to do with the oattle, and as he rode away said : 'Well, they are coming out of this anyhow.' Previous to this Benton had not made any objection to the arrangement, and had never made any demand to have things different. Had asked when the sheep were going away. Told him when it was necessary. Promised not to run sheep with the cows wheu they were milking. He need not be anxious about the cattle being well looked after. Up to this tin>e Benton never made any demand for the exclusive use ot the paddocks. On the same day Bentou when he was going to take all the sheep away. Told him he would take some away in a day or two, and probably those in the river paddock within a fortnight. Di 3 not want to shift them away from home till more of them had lamhed. Ic was then Benton Raid he (witness) was not keeping up to his agreement. Said he was in no way pinching the cattle, Benton said, • Anyhow, I don't think you are keeping up to the agreement.' That afternoon they aod Benton shifted the cattle into the paddock he had asked them not to. After they had gone home he let them back ou to the turnips. On the 22nd met Benton and others at Melville's shed. Benton said,' Well, I oonsider it a—— shame ; why did you do it.' Witness said because he did not want them shut in the paddock. BeDton said he defied 'God Almighty to find suitable pasture. There would be no grass for four months.' He said be must have the sheep out of the paddocks allotted to him ; that already a pound a head was taken off their value. Witness said ' That is nonsense.' Besides, he had never allotted paddocks permanently, and told him once and for all that he could not do so. If it was necessary, could givo him a written order from time to time which paddocks were to be allotted for the cattle. Benton said that was not necessary. If he wanted paddocks allotted at that time they would be from the turnip paddock and the flat. Benton said witness had allotted him paddocks permanently in front of witnesses. Asked when and where. He said, ' When we were fencing the big paddock. You said ' the cattle will run about hero.' You have not kept up to the contract ; you have not fulfilled any of the termß of the agreement.' He then produced the agreement. He told witness that the sheep must be away by Monday.

By Mr Swarbrick : One huudred and seventy acres would not alone be sufficient to do justice to 60 cows. Some times the cows would be short of feed. Considered from a milk-producing point of view, it would be better to shift the oows about. Up to the 21st of August the cows had certainly sufficient pasture, but not from the 21st to the 25th, because Benton shut them in the paddocks. Examined by Mr Cotter : He claimed that when he allotted the paddocks he relained the right under the agreement to put sheep, cow and cittle on so long as there was sufficient pasture. The agreement could he carried out satisfactorily under this arrangement. Benton got no part of the profit from other stock than eows, etc. Did not consider himself compelled to allot paddocks when asked by Benton. No paddock was allotted. His interpretation of the agreement was that he could sell cows and replace them with others What Benton complained of he claimed the right to do. A. J. Melville, farmer, deposed to having been a dairying all his life. Knew Raynes' farm ; knew it for some years. Saw the stock on the farm in August. The dairy cows were then in first-olass condition.

By Mr Cotter : It would not he reasonable to put Bheep and the dairy cows in the same paddock. Henry Thomaa Bagnall deponed to soiling turnips to defendant in August. Cattle were put in on the 22nd and taken away on the 2fith. By Mr Cotter : Raynes had not sufficient feed in August for his cows. Would not consider it advisable to put sheep in the name paddock as nows after calving. Only part of the sheep were put on the turnips purchased by him. He knew Raynes' place would not carry all the stock without getting feed outsine his own farm.

By the Bench : There was no agreement as to date, but the turnips were to be eaten off as soon as possible so that he could get the land in oats. It was understood that they were to be eaten off before the end of September. He inspected the paddocks on Sunday last. The Bheep had gone and this grass was growing faster than the cows could eat it. At this time of the year a month was ample to keep a paddock closed for dairy feeding. Thomas Cunningham who is at present in charge of Mr Kayoes* dairy said he had been farming all his life. There were 63 cows on the farm and they were all in very good condition. He took charge on September 10th. Paddocks were allotted for the milkers and the dry cattle for the whole year. There were 40 or 50 acres of grass for the dairy cattle, but he could not say what was for the dry cattle. There was ample feed to carry the cattle all the year round and r un a dairy herd.

Ry Mr Cotter : He worked on two fifths shares, two-fifths ot cjlves and cattle and one-third of the pigs. He could not say how many sheep were muring with the dry cattle on the river flat. They were to be removed as soou as the cattle were coming in. The paddccka were to be reserved exclusively tor the dairy cattle. By His Worship : He had the use of all the land betwenn the grass road and the river and the 40 acres mentioned besides for the cows. After counsel hart addressed the Court at some length, His Worship expressed his intention of given a written judgment but stated that judgment would be given for the pUintiff.