CIVIL SITTINGS.

Daily Telegraph (Napier), Issue 5890, 23 July 1890, Page 3

CIVIL SITTINGS.

THIS DAY,

(Beforo His Honor Judge Conolly and a jury of twelve). OAM, LEUPOLD V. W. BATIMONE.

Mr Brassoy, with Mr Lee, for the plaintiff, and Mr Loughnan, with Mr Dinwiddie, for defendant. This was a claim for £1020 for the wrongful conversion of sheep Mr Brassey said the action had been brought by Mr Leupold, a sheopfarmer, residing at Maknretu. Ho was tho holder of COO or 700 acres of land, whilo the defendant was .1 merchant residing at Waipawa, and was in the habit of supplying the eettiers with goods and reviving in return the clips of their wools. Tho plaintiff had a flock of 1000 sheep in 188-1, and gave a mortgage and wool lien over them in September, ISSO. A caso was coming on between Mr Leupold and Mr Fletcher, and a sale of the Eheep was to take place on the oth September, under Mr Rathbono's stock mortgage. The plaintiff claimed that Mr Rathbono had converted tho sheep to his own use, and took away the sheep, and damaged the property. By tho agreemont come to between plaintiff and defendant, they said Mr Rathbono became a trusteo for the sheep, and purchased them at auction on the Gth September, and they said they wero purchased for Leupold. On tho 13th November, 18S9, in violation of tho agreement, tho defendant entered the plaintiff's premises, broke down certain fences, and drove the sheep out. On the 30th November defendant converted to hia own use 1543 sheep and 500 lambs then running on tho farm. The defendant claimed that by deed of mortgage, in consideration of £200 paid by defendant to plaintiff, the latter assigned to defendant all the Hock of sheep, numbering 1304 and their increase by way of mortgage for the purpose of securing the repayment by plaintiff to defendant upon demand of the said £200 with interest at ten per cent., and also all such further and other sums as should for the time being bo duo and owing upon tho account current of tho plaintiff with defendant whetbor for principal moneys advanced, bills of exchange or promissory notes discounted or payable on or any account whatsoever, together with commission and other lawful charges. That tho defendant upon the security of tho said deed of mortgage of stock irude further advances to plaintiff ; that on 24th August plaintiff made default in payment, accord-

ing , to the provisions of tho mortgage of tho amount duo thoreunder. That the de-

fendant thereupon in exercise of tho powers conferred by tho said mortgage of stock took possession of the cheep included therein and advertised them for sale. That it was agreed between tho parties tint the defendant should become the absolute purchaser of tho sheep upon certain conditions, and plaintiff accordingly signed an agreement thereto ; that the defendant on tho 6th September 188!) in pursuance of tho said agreement rurchased at auction tho said sheep numbering about 1500 ; that tho defendant paid to plaintiff £10, and a deed of bailment was executed between them, and the said deed was registered. The sheep was handed over to plaintiff, aud depastured on Heavitreo Farm. On 115 th November, ISS9, tho defendant dotermitied tiio bail m. out and xecj ues tod. plaintiff to deliver up tho sheep subject thereto but thii ho declined to do, whereupon, in pursuance of leave aud license, defendant removed the sheep. That tho defendant caused the said sheep to be shorn and the wool therefrom realised £192 18s nd; tho sheep fetching £4.")G 11s Id. That at the request of plaintiff an arbitrator was appointed, but plaintiff refused to enter upon «• arbitration. Defendant prayed judgin f>*r £31C 15s (id, the amount of ' the curi account between them, as shown in the m. ment of 'accounts, including all costs and charges of t-cizing and salo of sheep and wool, together wfyh interest thereon ; and also for damages for breach of contract the sum of £93 4s"6d, as shown in I he statement. Evidence was then taken, and after plaintiff's case had been taken Mr Loughnan said lie had no evidence to call. He applied for a nonsuit, on the ground that plaintiff admitted the sheep wore sold, and that the sale was a bonafdc ono. Mr Brasscy said plaintiff did not admit that the sheep were sold, nor that tho salewas a binajlik one. On the Oth September the yheep belonged to Leupold. Thoro was no ground for a nonsuit, and defendant should bo put upon his trial to show that the transaction was a buna fide one, which he (ijounsel) submitted it will not.

His Honor said ho must decline tho application for a turn-suit. Ho would have

aud vory little difficulty if ho had boon disposing of the casu himself, but there wero ,omo matters in the case which were proper 'or a jury to consider.

Mr Loughnati said he would not call any evidence, and Mr Brassey proceeded to address the jury.

Mr Loughimn addressed tho jury on behalf of the defendant, and Hie Honor having summed up tho jury retired to consider thoir verdict.

Tho jury hud not returned when wo went :o press.