SUPREME COURT.

Press, Volume XIII, Issue 1727, 17 September 1868, Page 2

SUPREME COURT.

SiTTiirGa at Nisi Pbiub. Tuesday, September 15. [Before Mr Justice Gresson and a Specti Jurj.] Hie Honor took his seat in the old Tow Hall at eleven o'clock. Mli,E3 AND OTHERS T. WAITT AHD OTHEB! I Mr W. Williams, with Mr Harper, wei 1 counsel for the plaintiffe; Mr Duncan aj peaced for the defendants. The following gentlemen were sworn in t a special jury:—G. Hart (foreman), J. M Langdown, B. H. Essor, P. Laurie, W. Dai W. A. Sheppard, H. A. Scott, J B. Eyfe, 1 Montgomery, H. Sawtell. This was an action in which the plaintifi sought to recover the sum of £5000, for th wrongful conversion of the wool of 21,00 cheep depasturing at Teviotdale station. Th declaration set out that, on or about the 8t January, 1868, the defendants (who are tli executrix and executor of the late Eobei Waitt) wrongfully seized, took and carrie away and deprived the plaintiffs of the us and possession of plaintiff's goods, then bein in the lawful possession of the plaintiffs, thi is to say, the wool on 21,000 sheep depasturin upon the Teviotdale run in the province c Canterbury, and converted the said wool J defendants' own use; therefore, the plaintif claim to recover from defendants the sum < £5000 as damages. To these allegations th defendants pleaded—(l) That the wool in th declaration mentioned was not the property c the plaintiffs, nor were they in lawful possei sion of it in the manner and form in th declaration mentioned against the defendants (2) That the defendants did not convert it t their own use, or wrongfully seize, take, an carry or deprive the plaintiffs of the use an possession of the wool in the declaration, i i the manner therein alleged. ! The issues put before the jury -wei these : — 1. Was the wool in the declaration mci tioned the property of plaintiffs ? 2. Were the plaintiffs in lawful possession ( the wool in the declaration mentioned in th manner and form therein mentioned ? 3. Did the defendants convert to their ow use or wrongfully seize, take, and carry awaj or deprive the plaintiffs of the use and poi session of the wool in the declaration mer tioned in the manner therein alleged ? 4. Are the plaintiffs entitled to recover anj and if any, what damages in respect of th causes of action in the declaration mer tioned ? Mr W. Williams, in opening the case, sai that an arrangement had been made betwee the couneel for the plaintiffs and defendant by which, the case laid before the jury woul be confined within a very narrow compasi The case before the jury was simply thia. A a certain period in 1867, Messrs Miles; and O< the plaintiffs, had a transaction with Majc Reader, the owner of Teviotdale run, by whic they agreed, to advance him a certain sum c money Vipoh condition that he should giv them security .under the Wool.anc) Oil Securi ties Act of 1868, and under that eecurit plaintiffs claimed. The case was entirely cor fined to a question of possession and owner ship on the part of Milee's, and of conversioi There was no question of accounts. His Honor said it seemed to him that, o the pleadings, the case was really confined t> a question of conversion. Mr W. Williams was going to point ou that, strictly speaking, the defendants simpl denied the conversion by _ themeelves; whil the plaintiffs only d&ii that the demand wa made, and that there was conversion; he wa therefore at a loss to understand how the cas could go further thanproving the notual vala of the wool. He had. now eimply to prov possession under the Wool and Oil Securitie Abt, a demand of the wddl from Mrs Wait and Mr John Tinline, the executors c Mr Waitt, and the refusal to giv up the wool, which necessitated thi notion. If they succeeded in proving this, al that then remained for them to chow wee th valu&of the wool. This they could do b; calling the manager of the station, wh would give evidence as to the number of th sheep shorn. Only the approximate valu could; however, be shown,' as the returns o the sales of the cheep had not yet arrived but probably a sufficiently satisfactory eeti mate could be arrived a 6 to enable thejuri to. come to a conclusion on the matter. Tin case summarised was simply this. Thi plaintiffs would show that they were entitled to possession ; that they demanded the wool that it was refused ; and finally, the value o the wool. Mr Williams then put in tin probate of the will of the lale Eobert Waitt granted to his widow Catherine Waitt, leavi bring reserved to the other executor, Johi Tinline. The following witnesses were then oalled for the plaintifie:— Thomas M. Hassall who, on beiag sworn stated—l am attorney, under power o: attorney for the plaintiffs. I knew Majoi Beader of Teviotdale station. He was thi owner of that station about January, 1867 I had transactions with him as such. Ire ceived an application by letter dated the 3rd January, 1567, from Major Reader's agent, Mi deßourbel, for an advance of £1000. (The letter was put in. It contained an offer tc hypothecate the season's produce of wool at Teviotdalej £4700, for an advance of £1000.j At that time Major Reader owed us* about £3500 on a bill not yet matured', and a small balance in addition:' The offer contained in the letter was that the wool should be hypothecated Jo secure £4,700} which was made ap|df the advances already made by ue, and ;he £1000 to be lent. We agreed, in writ?ng| ;o ■ accept • the terms offered (Letter proluced. It intimated the acceptance of the )ffer, provided the hypothecated wool was for he sum of £4,750 instead of for £4,700, in looipliance with another application, and in )ursuance of the agreement, and £300 was paid >n the 24th January to Mr Dβ Bourbel; tnd on the 16th March a second application vas made by Mr Dβ Bourbel for £350, and he money was paid. I took a wool and oil ecurity from Major Reader over 21,000 cheep. Document produced). Mr Duncan objected that the document lught to have been set out in the pleadings, in ompliance with the 76th Rule of Court. Mr W. Williams contended that it was unlecessary to do co, since the document war not no between the plaintiff* and defendants, nit between the plaintiffs and Major Header. His Honor considered the evidence unnecosary, as the only real question at issue was liat of conversion. j After some argument, His Honor swl he would admit the docuicnt" ac evidence, and take a note of Mr hmcan's objection. Mr Duncan said that in addition to the obiction he had already made he would also ask is Honor to note that he objected to the ocument as being inconsistent with the actual tie set out upon by the plaintiffs j and also that iere was no evidence before the Court that

Witness's examination resumed—Tμ • nature to the document is that of uT Reader. I know his handwriting J » J. J. Thompson, dork to Miles and Cn 1 attesting witness to the document, w n S'' examined, and deposed to having Jn vr! ." I Reader B,gn it, at Toviotdalo ,tjion, on T 0 ! 31st December, 1866. "° ' Cross-examined by Mr Dnncon-The 31.f \ December was a Monday. The document * m the same condition now as it w n9 ll ? «gn«.d. The figure, were altered before *£ \ deed wa ß signed. The figures wero Mtered > before the deed was executed. WitneeßeiS 1 hie attestation first on the etation and ff * wants in town. r * ■ E 8. Willcocks, Registrar of the Supreme I Court, was Jen called, and produced I fig ! copy of the deed in question, filed under 2 \ Wool and Oil Socuritioe Act, 1858. i Mr Duncan objected that the. filed copy Wfla ! not an exact copy of the original, as tho O n ' dorsement of Mrs Waitt (executrix of M*. i Waitt, who held a mortgage over tho DM ] perty) was on the latter and not on the ■ former, and in consequence tho deed was null and Toid under the Aot undor which it *! j filed. i Mr W. Williams contended that tho en. doreement was not an integral part of (hi document. His Honor overruled Mr Dunoau'e objec tion. J Mr T. M. Haesal wae again put into the witness-box, ond deposed—At the time this security was given, Major Reader was in po;, Beesion of tho Teviotdale run. About Sen*. tember, 1867, or perhaps later, I demanded by letter possession of the wool on the etation from defendants. Possession was alao do. manded by our solicitor. Mr Tinlin verbal/ \ refused to givo it up. I should estimate thj ' ■ value of the wool to us at the time tho refusal occurred at 9d por ]b. in grease. The wool we' shipped by tho Blue Jacket fetched, I believe, lid per lb. As merchants we should havo saved commission, and would hare also had an advantage in the freight. I should think the fleeces on 21,000 sheop average 51bs a piece ; and probnbly Jjjj bales would be produced. Tho not value o( each bale would be about £14, making altogether £3500. Joseph W. M. Cox depoeod—During tho shearing time of 18G7 I was nmnuger of Teviotdale station for Mr Tinlin. I can show from entries copied from the original book the number of sheep that were shorn. 15,526 were shorn, and there were 178 bales made up. W. B. Murray-Aynsley deposed—l am one of the representatives of the firm of Meaars Milea and Co. in Chrietohuroh. Wo hold a security on sheep depasturing on Teviotdak station. Over £5000 ie due to ue on that security. Mr Duncan hero stated that ho wished to ask whether Mr Aynslejy had notice of tho mortgage of the sheep in question to Mr Waitt, but upon Mr Williams objecting that it was not open to the learned counsel on tho pleadings to put the question, Ills Honor ruled that the question could not be put. This closed the plain tiffs' case. Mr Duncan said that, after tho ruling which hie Honor had just made, ho would ask the Court to allow the defendants to add another plea to those thoy had already filed. Q( course the defendants would have to pay the costs of the day, but this was such a material point of tho pleadings that it would bo a Very great pity if the case were* to fall through in consequence of this plea not having boon made. His Honor asked if the counsel on tho other side objected. Mr Harper said tboy did. His Honor did not then see how ho could consent to allow another plea to be added, as the plaintiffs had examined their last witness. Mr W. Williams thought his Jearnod friend was asking too much as, if he wished to do so, it was in hie power to raise the whole- question by disputing the validity of the mortgage. His Honor was of opinion, as the plaintiffs' counsel objected, ho could not accede to Mr Duncan's application, inasmuch asi a fresh pica might havo altered tho whole case. Mr Duncan then called, John Tinlin, one of tho defendants, who deposed—l was at Teviotdale etation shortly after the shearing season in 1867. I have made out a statement of the number of sheep shorn and the value of tho wool, from my own knowledge. The- number of sheep stated by Mr Cox to have been shorn I believo to bo correct; 178 bajes of wool went from tho etation, but only 175 were shipped, ao 35 bales were damaged by the flood in Februrury last while on their way to be shipped. I have a list of the weights and number of the btti'ee; aiid the highest price I was offered in Christ* church for the wool in grease was 7d per lb., which would be at tho rate of about £11 8s 8d per bale!. My own valuation wan 8d per lb;, which makes £13 per bale. I oxpcot tho wbol will fetch £13 a bale, altogothor £2314, fr6m which, will have to be deducted £618 10s 10/ d, expenses incurred by mc in ehoaring, slti[iping, scouring, and damaged wool, wool bales, and cartage. ! Mr W. Williams objected to it being laid before the jury that these expenses wore absolutely necessary, aa had the wool been in possession of his clionts, the expenses would have been much less. Croßß-exaniined~The offar of 7d a lb. was made to mo by a merchant privately. The wool was stored at Oatneron'e, Saltwater Crtjek, for two months. The only extra expense incurred by this was that 35 bales were damaged by a flood. I have drawn £10 a bale ; aiid having paid (he necessary expenees, I deposited tlio money in the Union Bank of Australia, where it lies awaiting tho result of this action. I was obliged to leave tho wool, in Cameron's for so long a time owing to the store being so full of Wool, and these bales could not be got at. (This dosed the defendants' caao. Mr Duncan aeked if he were to understand that hie Honor held that the plaintiff* had proved their title to the sheep P His Honor said that was a question for fbs,-,-/.' jury to decide, but he should direct them tbat; | the plaintiffs were entitled to $he wool it they had either actual possession or a right to possession. . . Mr Duncan intended to argue thai the seourity brought forward by the plaintiffa s® giving them a right to tho possession wee null and void, as tho terms of the Aotuudee w%% the deed was made had not been complied with- ' . His JJonor pointed out that if Mr Duncan argued that there wae no eridenqo whatever as to title, he ought to moyo for & nonsuit. Mr Duncan would then more for c nonein't, and would further point out that the plaintiffs had not made put tne actual pOßseesion of the, sheep in Major Reader. Hie Honor said it was true that no distinct evidence wee given on this point, and it would be for the jury to decide how far poesession \n Major Header had been proved. Mr Duncan would contend it had not been shown that Mojor Reader had a right to give the document purported to be good security. The document before the Court woe not sufficient, and there must be other evidence to prove that he was at the time the actual owner of the ehoep, and in a position to give a good security. This the plaintiffs had failed to do. Hie Honor asked if- the document did not contain internal evidence that M»jor Reader ! wae the owner of the cheep, since he was described as being of " Teviotdulo, runholdor." Mr Duncan did not think the before the jury was ono relating to tho litle Qt Major Reader, but tho pluintitfs were bound to show that the property over which the Hen had been given was actually in the possession of Major Header at the time, and there v&a no evidence on this point; therefore tha plaintiffd bad failed to bljow that the eeonritjr produced was a valid and good eeourity. His Honor remarked thafc Mr Hossal had given evidence to the-effect that the shesp were in Major Reader's poeeeesion at the tiroe when the security was given. If po»*3saion wero proved it was sufficient. Mr Duncan said this was constructive posee6sion under a peculiar statute road ptofox*

r ~~a fr prove that the sheep were in. Bgader's possession at the time thej *^ Or, fo nossession themselves. riot go with Mr Duncan. ,t£ nlainHffeooald show that they were in tsion, or had a «S ht t0 be ia P osaessi oa said as that wa 9 the Court's ■ L he would not argue further. Cp jr' ffono- would refuse a nonsuit and the point 3he had . voted at the re 9 ueßfc **f> The point he had some doubt relating to the 76th rule, B fJLi- tho plaintiffs should not have set out t Sent as part of their title. This he - the most difficult point in the case, 03 he had ruled against the defendants on case must of couree go on. did not intend to address the .•W bit would merely point out to them #T«»h reeard to the value of the wool, fSnc* of the plaintiffs was only of a *J character, while particulars had STrivea by the defendants' witness. if W' Williams then addressed the jury. rtftW l ' they would have no difficulty in ? 3)g *c ralue of the wool. There lear evidence to show that it consisted of i?Ssofleeces; and by placing a fair average produce a net profit of SmhS clients were therefore justly "tftted to this amount. But it must also be Sobered that the defendants were wrong3~Min this case, and had not attempted to ?3r their taking pceuerion of wool belong%to" other persons. Taking this fact into -A*?ation the plaintiffs were fairly entitled fSSI wluoof the wool at the station, of course to the expense of taking it Sp£ eheep'e hack. This, value might be Sdown at 8d or 9d a pound, and he claimed fcrhis clients a verdict for at the very least HuHonor, addressing the jury, said this tmearea to him to be a by no means difficult ]& for their consideration. It was an action forthe wrongfully converting and depriving the Xintiffs of certain goods which were then In their lawful possession, that was to say of fc a soolof 21,000 sheep. In order to Ht»bis!t the plaictifie' r, 'g llt to ts ? e w ° ol it; was ZLsh that they should satisfy the jury beroad reasonable doubt—first, either that &c tool cf these sheep was in possession | cf thY plaintifiESs, or that they were entitled tof thepossession—it was sufficient that either off these points should be established; and| gcond, that the wool being so is in paseesjion, the defendant* had joaTßtfdit to their own use ; the meaning oh uhiohwas. that the defendants had done some | jet whereby the right of the plaintiffs was | icjared. Of the conversion there could be no | doubt-irtatefer. Mr TinlinV evidence was I perfecdy clear on this point, and therefore | IS whole question the jury had to coneider| »si there was reasonable evidence! of tfe wool of the sheep being in possession | of to plaintiffs, or whether they had a right | ta posKSsion.- His Honor then commentecr , 03 tho eridenoe which had been given on this | jxsbls.-They would see that it was, under | : and Oil Securities Act that! Sβ deed giving security was made! by Major Header, who was described in it as| "nmhelder of-T«viptdale" j and the deed also| fljntsined a clause that the wool should bej de'irered to the Order of Messrs Miles and Co.l Itwul'd' be for the jury to consider if there| nsTOdeOce of Miles "and Co.Tjeing either in % mm&m ot having a right to be in posses- ? m,(£&m goods. If the jury were of ffliwrtj that either <rf these points was proved, fWoould hs?e ; no doubt about the converBfliulhe next thing they had to do was to dstersiine the value of the wool at the time of the coßTeraion, There was the ordinary enfonce of demand and refusal, so there eald be no difficulty, about the conversion. There ■fltrSome little conflict in the evidence , uto t&e value of the wool, but they might properly take the evidence of one of the defen- , dant's, 3&.Tinlin, who had given it in a VBry ; &ir manner. His evidence agreed with that of Mr Csox, yiho said that the number of fleeces ?a$ 15 } 526, and the cumber of bales 178. concurred with, the all the jury had to con- . sder ms, what was the not value of the wool ■- ii &c tune of the conversion before it left the , fe&m. His Honor then: reviewed Mr Tin- , HaVendence on thie point, and pointed out fiitMr Tinlin had included in his estimate • of the expenses, a charge for scouring and dsmsged wool, occasioned by a flood while it mi lying at Saltwater Creek, and that this , coaH not properly be included in the expenses datfed against the plaintiffs. It however. , restadwith the jury to settle the amount of dsaages to which the plaintiffs were entitled.. liejarj retired, and after a short consultatan, found for the plaintiffs on all the issues, ; cd SEsossed the damages due to the latter at fiJOO. ' ; ■ ' - I lam Wae-given to Mr Duncan to move for tnw trial. Bμ Court then adjourned sine die.