CIVIL SITTINGS.

Hawke's Bay Herald, Volume 12, Issue 999, 24 November 1868, Page 2

CIVIL SITTINGS.

FRIDAY, THE 20th OP NOVEMBER, 1868. (Before His Honor Mr. Justice Johnston). Kennedy, trustee of estate of John Davis, v. Corbin and Glenny. Mb. Wilson for plaintiff; Mr. Cuff for defendants. l This was an action to recover damages for entry by defendants upon land of John Davis at Wairoa, and seizure of a number of sheep, his property, whereby his estate suffered loss. Davis and Corbin had been partners as sheepfarmers at Wairoa, and dissolved in February last, when Davis continued the business. The terms of dissolution were embodied in a bill of sale by way of mortgage from Davis to Corbin, dated Bth April, 1868, and a bill of sale, dated 15 th April, 1868, from Corbin to Davis. The first purported to mortgage the land and some 1269 sheep to secure £392 due by Davis to Corbin, with interest payable on 31st December in each year — the principal sum to be paid in 1871. The sum secured was liable to be increased by payment by Corbin of any partnership debts, upon which half of sums paid by him were to be debited to Davis, and be payable on demand. On the other hand, Corbin was to be credited on account of the sum mentioned in bill of sale, for half of whatever he might pay on account of late partnership ; Davis to retain possession until default, with power of sale by Corbin in three months after default. The second deed assigned all partnership, land, stock, and credits to Davis, subject to the first deed. The sheep mentioned in the first deed were part of a flock, and had no distinguishing mark from the rest. In June Davis filed a declaration in bankruptcy, and Mr. Kennedy was on 21st July confirmed as trustee. About 6th July Corbin went to Wairoa, with the other defendant, Thomas Grlenny, and, in spite of Davis's strong opposition, drove away a number of sheep, and took possession under his bill of sale. He claimed to do so on the ground that Davis had not paid the partnership debts ; that he had sold sheep included in the security, and had permitted others to be taken in execution. It was the lambing season, and the sheep were driven from five to ten miles away, according to different witnesses ; and a number of lambs were alleged to have been lost, and killed, and the flock reduced and damaged. The evidence did not support the defence of right to take possession, in addition to which his Honor ruled that no property in sheep passed to Corbin by the first deed. The question, therefore, was narrowed to one of damages, and the evidence was very conflicting. According to Davis, there were 2200 sheep, and about 400 lambs, when Corbin and Glenny com-, mitted the trespass ; and after they were

gone, there were only 222 sheep and 00? Limbs left. According to Corbiu and Glonny, they found upon counting, at an adjacent paddock, the sheep they had taken, that they only had fifteen over their number, and some neighbours' sheep. They also alleged that the sheep were driven with care, and cared for afterwards; that the lambing was a poor one} and that the lambs died from the weather,- and not from being driven. In September 1 Corbin gave liberty to take back the sheep, and 1155 were mustered and taken back by Davis. He alleged that all the lambs he could find were 150. It was urged, for Glenny that he was a servant under Corbin, and not liable for his acts, which view his Honor over-ruled. After having retired about half-an-hour,-the jury found for plaintiff for £41 9s. His Honor certified for costs/