SUPREME COURT, NAPIER.

Daily Telegraph (Napier), Issue 3266, 20 December 1881, Page 3

SUPREME COURT, NAPIER.

CIVIL SITTINGS. MONDAY, DECEMBER 19. (Before Hie Honor Mr Justice Richmond, and a special jury) BA.NK OP N.Z. V. PEKAKEREKEEE. In continuation of this case, Mr Travers proceeded to call and examine several ■witnesses for the prosecution, after which Mr Rees moved for a non-suit to be entered, to whiih Mr Travers objected. His Honor said he would not object to the refusal in this case. Mr Rees submitted that the document under which the property was claimed by the bank showed no title. Ultimately, after a long legal argument, it was agreed to leave the law points for future consideration, and merely let the jury assess the damages. Some difficulties then cropped up as to the price of the sheep. Mr Eees proceeded to call evidence on his side as to the agreement between the grantees of the block in regard to allocation and definition of interests, when the defendant, A.F. Hardy, and Mary Hardy, vere examined.

Mr Rees and Mr Travers briefly addressed the jury as to the assessment of damages, Mr Travers stating that the plaintiffs were willing to accept 7s a head for the sherp, and £20 damages to recoup them for the expenses they had sustained.

His Honor said the case had narrowed down practically to a question of £20. The Bank, he thought, was reasonable enough with repect to the value of the sheep. The rest of the ease was a mass oflegal questions which neither he nor counsel would endeavor to explain. Neither the moral nor legal merits were properly before the jury, and he would say nothing about them. The Supreme Court in lanco would have to find its way as best it could through the maze of technicalities.

After a few minutes' retirement, the jury returned into Court with a verdict for the plaintiffs for £20 damages, and the price of the sheep assessed at 7s a head.

A verdict was therefore entered up by consent for plaintiffs for £142 10s, with leave for defendant to move for a verdict to be entered up for him, the Court to have power to draw inferences of fact from the Judge's notes,

The Court then rose.

TUESDAY, DECEMBER 20

His Honor took his seat at 10 a.m. BANK OP N.Z. V. COMMON AND DELAUTOUE

This waa an action brought by the Bank of New Zealand against Messrs Common and DeLautour for an alleged wrongful distraint and conversion of a number of sheep—about 2000 altogether •—which had been depasturing on a block of land called Makauri in the Poverty Bay district. The damages were assessed by the plaintiffs at £1500. Messrs Travers and Ward appeared for the plaintiffs; Meesrs Carlile and Nolan for Mr Common ; and Messrs Kees and White for Mr DeLautour.

Mr Torr was chosen foreman of the jury. Mr Travers, in opening the case, referred to the nature of the pleadings at some length, and then proceeded to Btate the grounds of action. He submitted that plaintiffs were the owners of the cheep in question, and had possession of them at the time distraint was made. He would ask the jury to consider the case of his (Mr Travers) being the possessor of a wa'ch. The watch might not be his, but no man could come and take it from him while he held it in possession. Possession was law, and anyone who tried to take that watch would be a trespasser. The allegation in this case was that the possession was legal, and the defendants had not set up anything to show that it was nor, although such was necessary before the property could be touched. The defendants' plea of justification was that a person named Wi Pere was tenant of the land upon which the sheep were depasturing, and that in the exercise of his lawful authority as a landlord he took these sheep in distraint for rent. But the plaintiffs would show that Mr Common and Mr DeLautour were trespassers in this. The history of the whole affair was briefly as follows. Mr Hardy, who is a sbeepfarmer residingiu Gisborne, had married a native woman, who was one of fifty-six grantees of the Makauri block. Mrs Hardy's mother was also a grantee, thus making a second fifty-sixth share. Hardy occupied those two pieces of thia block, and was not in any way molested by tho other grantees in said occupation. A paddock of 190 acres waa situated on the right tide of the road leading to Ormond, and the other portion was on the opposite side between the road and a river. Hardy's house was also on the left side. In the course of time Mr Hardy found himself iv difficulties, and mortgaged his sheep to the Bank of New Zealand. Some time after the plaintiffs, for sufficient reasons no doubt, took possession of the sheep, and placed a man named George Wall in charge of them. This man Wall placed the sheep in the paddock on the right hand side of the road, and secured the gate with a lock. Mr Hardy and his wife had meantime conveyed their interest in the block of land where the ebeep were depastured to tlw Bsnfc dCbJetf %eahn&» Wi X%e> ihvough whose claims upoa this laad the defea*

.■, dants seek to justify the course they have taken, was also a grantee in this block of land, and the defendants allege that i Hardy was the tenant of Wi Pere of the ■ particular block of laud upon which the sheep in dispute were grazing. In the case yesterday it was stated by the defendants in that action that Pekakerekere was "the holderof thisparticular piece ot land; to-day it belonged to Wi Pere. It wasalieaed then by the the defendants tod»v that Wi Pere was the owner of this particular biooif, that when the sheep were taken im..> rent ia arrears from Hardy to Wi Pere giving the latter a lawful claim over tbe sheep. It seemed also that, although Hardy owed Wi Pere £1.400 rent, distress was only made for £790. A series of facts would be cited to show that Hardy was not a tenant of Wi Pere, that Wi Pere was not owner of the land in question, and that consequently there could not have been any rent due to him. It would be shown that Wi Pere had not only once but twice over sold his land, on the last occasion to Mr Rees, who in turn had disposed of it to Mr Common. Mr Rees here interrupted, and eaid Mr Travers had been misinformed. Mr Travers, continuing his remarks, said that such were his instructions. The plaintiffs were going to prove these grounds by both documents and evidence. It would first be proved that Wi Pere sold the property to Barker and M'Donald, and subsequently to Mr xtees, who mortgaged it to Mr Common. This proof would entirely dispose of any right to distress. It would also be shown that so late as the middle of last year there was an arbitration case between Hardy and Wi Pere under the terms of a deed of submission, and that an award was made which determined any claim of Wi Pere's. At that time not a cent of money was due to Wi Pere. If these facts were proved, and it was shown that Messrs Common and Delatour were perfectly aware of these facts, then both of the gentlemen were trespassers in seizing sheep which were in the lawful possession of the plaintiffs. John William Matthews deposed that he was manager of the Gisborne branch of the Bank of New Zealand. The bank held a mortgage of stock from Mr Hardy, dated October, 1879. (Document put in.) On the 16th day of March last witnesss took possesion of Hardy's sheep by virtue of this mortgage. He had a document drawn out by the bank's solicitor, which he took with him, and having made a formal demand for payment, he handed the document to Mr Hardy. He placed the sheep in the possesion of a man named George Wall, whom he also furnished with written instructions. Witness saw the sheep placed in the paddock on the left side of the Ormond road, where they where delivered to him. Mr Hardy raised no objection whatever, but assisted witness in taking delivery of the sheep. There were some 2,300 head altogether. Witness did not notice the marks. There were some sheep which were subject to a mortgage of the New Zealand Agency Co, but this was paid off on March 31st, and according to the terms of mortgage these became the property of the Bank of New Zealand then. The amount in respect of wbich he took possession of the sheep was unpaid. By Mr Eees: I remember seeing Wi Pere at the bank about tbe middle of March last, but cannot remember McKay, native interpreter, being with him. I saw Wi Pere prior to the 16th March. 1 do not remember holding any conversation with him about that particular portion of the paddock where the sheep were seized.' I had a general knowledge of the position that Hardy had possession of some parts of the Makauri for several years. Of my own knowledge Hardy occupied a considerable portion of the property. I also believed that he had certain claims through Wi Pere. I had heard that Wi Pere claimed reat of Hardy on account of a portion of tbe Makauri. I did not ask Wi Pere whether he would lease the land of which Hardy was in possession. (Left sitting.)