RESIDENT MAGISTRATE'S COURT.

Cromwell Argus, Volume III, Issue 148, 10 September 1872, Page 6

RESIDENT MAGISTRATE'S COURT.

Thursday, September 5. (Before. E. H. Carew , Esq., R.M.; and M. Fraer, Esq., J.P.) ALLEGED ASSAULT AT ADAMS’S GULLY. Daniel Moore was charged on complaint with having on Sunday, the Ist inst., assaulted and beaten the complainant, Samuel Mathers. Mr F. J. Wilson for complainant. Mr Allanby, for defendant, pleaded not gudty. Samuel Mathers, miner, gave evidence as follows : —On Sunday last I went to Halliday's store along with a man named Forsyth. Be- i turning homewards, when crossing a creek near Moore’s hut, I sang out to Moore, “ I will fetch you those two newspapers 1 borrowed, this afternoon. ” I then went on towards my own place. Presently I felt some one strike me on the shoulder. Turning round, I was confronted by Daniel Moore and John Clode. Moore struck me on the frontal bone with a driving-pick ten or twelve pounds weight, and Clode hit me over the arm with a piece of sawn timber about 4ft. long, .‘liu. wide, and .[in. thick. I said to them “Don’t you kill me and tried to defend myself with my hands, lint could not. Moore said ! to me, “ You d n wretch, I’ll take your' life !” lie then chased me across the creek, | striking me with the pick as Iran. Presently j Moore and Clode caught me and knocked me down ; 1 fell on my left side. Both men jumped upon me, and Moore struck me with the pick behind tlie right ear. I tried to take the pick out of Moore’s hands, but Clode prevented me by striking me with the piece of wood before mentioned. I called out for Boh Forsyth, (who had left me before I reached Moore’s place), and Moore immediately caught me by the throat with both hands, and squeezed mo as hard as he could. 1 begged of them not to kill me, and Moore replied “You d n wretch, I’ll kill you—l 11 take your life !” They then went away, carrying the pick and piece of timber with them. I lay on the ground for some time, being stupefied from the ill-usage L had received. 1 had nothing with me, wlieu attacked, except a log of pork, which 1 carried under my left arm. The struggle lasted about half an hour. When I calle I out to Moore about the papers, Moore answered me from inside his hut, in a gruff voice, “ All right.” Moore,! think, struck me the first blow. I swear that the wounds on my head were caused by Moore striking me with a driving pick, and that Clode struck me avith a piece of timber. I had given neither of the men any provocation. [ The witness’s head, face, and hands bore the marks of very rough usage.] Mr Allanby cross-examined the complainant, but elicited nothing of importance. Robert Forsyth corroborated the complainant s statement that he had no weapons in his jkis- e*si m when witness parted with him. Witness kn w nothing of the alleged assault. I >r J nnes ('orsc w as called to prove the nature of the injuries sustained by complainant.

Before giving evidence, the doctor asked the Bench to order payment of the usual medical fee for attendance on the complainant. Mr Carew replied that he must look for payment to the person who summoned him. Dr Corse gave evidence as follows :—On Sunday last, in company with Sergeant Cassels, the complainant called upon me for surgical treatment. I found his head thoroughly saturated with blood. There was an incised wound over the right eye, the scalp being cut clean through to the frontal bone. After cleansing the wound, I had to put in twenty-one stitches to bring it together again. There was also a wound, 1| inch in length, over the right ear. There was a slight laceration on the left cheek, and also on the left jawbone, under the ear. Besides these wounds there was an abrasion on the left hand, and the left wrist was discoloured and much swollen. The left shoulder, down to the extremity of the blade-bone, was greatly discoloured from recent bruises. The incised wounds were very clean, and were caused, in my opinion, by a sharp instrument. A pick, or a fall on the sharp edge of a rock, might have caused the injuries ; but all the wounds could not have been caused by a single fall, for they were on both right and left side. To the Bench :—The wound on the frontal bone was a dangerous one ; it was within quarter of an inch of the parietal bone. This was the case for complainant. For the defence, Mr Allanby called

John Olode, miner, who stated : —About one o’clock on Sunday last I went from my own hut to Moore’s, having heard loud talking, which I thought might result in a row, inside Moore’s hut. Ten minutes before, I had seen Mathers and Forsyth coming up the track on the opposite side of the creek, going in the direction of their homes. I did not see Mathers and Forsyth separate. On reaching Moore’s hut, I saw Mathers standing inside, leaning against the wall. Moore ordered him out of the hut, and he refused to go. I saiil to Mathers, “ Don’t you hear the man ordering you out ?” He replied that the hut was not mine, and I had no right to interfere with him. When Moore again ordered him out, he took up a tomahawk and struck at him. I sprang at Mathers, and in warding off the blow from Moore, the tomahawk took a bit of skin off the back of my hand. Moore then took up a piece of wood (produced and identified), and struck Mathers with it to make him drop the tomahawk. Mathers let go the tomahawk, and we shoved him outside the door. He then took up a driving-pick, ami we closed upon him, —Moore again striking him with the piece of wood to make him drop the pick. After a great struggle we got the pick out of his hands. He then rushed across the creek to where there was a stone wall, and picked up a stone to throw at us. Beyond the wall there -was a cutting in the solid rock, originally intended to be converted into a stable. We followed him, and, in order to protect ourselves, we threw him against the rock wall, on which there were numerous sharp points ; and it was in that way the complainant received tire injuries on his head. He struggled violently to get up. Moore was at his head, and I held his hands. Moore used no other weapon except the piece of wood produced, which he carried with him from the hut.

Cross-examined by Mr Wilson :—I swear positively that Mathers commenced the assault, and that Moore and I acted only in self-defence. We kept Mathers down till he promised to behave himself. He was entirely within our power, and we could have killed him had we been so inclined. I believe he would have killed Moore had I not been present to assist the latter. Edward M'Fadden was called for the defence, but his evidence was of little value. This was the case for defendant. [At this stage Mr Loughnau took a seat on the Bench.] Mr Carew said there was no doubt that very gross perjury had been committed either by the complainant (Mathers) or by the witness, John Clode. The Bench did not know which to believe, and they therefore dismissed the case, without prejudice. S. MATHERS V. JOHN CLODE. This case, which arose out of the disturbance above referred to, was withdrawn by the complainant’s solicitor, with the consent of the Bench, -—no costs being allowed to the defendant. DANIEL MOORE V. SAMUEL MATHERS. This was a cross action for assault, and was also withdrawn by consent of the Bench, without payment of extra costs by complainant. OWEN PIERCE V. FRANK FOOTE. Claim of £4 os. 10d., on a bill of particulars. Defendant did not appear, and judgment went by default for the amount claimed, together with 2(55. costs of Court. (I. MONSON V. JOHN CAVAN A OH. Claim £1 Ids. Defendant did not appear, and judgment was given for the sum claimed, together with costs. HOWELL AND LOUCTIN.VN V. D. HRRDRN. Claim £2 2s. Plaintiffs were nonsuited, with 21s. costs. A CLAIM FOR BREACH OF WARRANTRV. Charles Clarke, carrier, was sued by John Marsh, hotelkeeper, for the sum of £SO, on account of loss sustained and expenses incurred in connection with a draught horse purchased by plaintiff from defendant, it being alleged by the plaintiff that the said horse had not fulfilled the guarantee of staunchness given hy Clarke as vendor.

Mr Wilson, who appenred on hehalf of defeni dant, pleaded a con oral denial of the allegations i set forth in the plaint-note. Mr Allanby stated the case for the plaintiff. | On the 19 th of May last, an agreement was made i between Clarke and Marsh, whereby the former | agreed to sell a horse to the latter for £47 10s. The horse was guaranteed staunch, and proved afterwards not to be so. He (Mr Allanby) apI prehended that the question for the Court to i decide was, whether or not the horse was staunch. The plaintiff had subsequently sold the horse at ! auction for £8 ss.

The hearing of evidence for the plaintiff in this case occupied the Court for many hours. We regret that a pressure of other local matter renders it impracticable to give even a condensed report of the evidence in this issue. The case was ultimately adjourned for a week, to enable the Resident Magistrate to consider as to his decision.