COUNTY COURT, NELSON. Tuesday, January 16.

Nelson Examiner and New Zealand Chronicle, Volume II, Issue 98, 20 January 1844, Page 388

COUNTY COURT, NELSON. Tuesday, January 16.

[Before his Honour C. B. Brewer, Esq.] BEIT AND ANOTHER V. DUPPA. This was an action of trover to recover th sum of £10, the value of two sows, the propert of the plaintiffs. The evidence, which was of a very contra dictory nature, we have no room for ; the ex animation of witnesses having occupied th Court the whole of the day. On the followinf morning, His Honour passed judgment as follows : — The defendant has pleaded that the sows were sent to his premises to be served by an English boar, and were served by such boar,- and he therefore claims a lien to the amount of £9 2s. Bd., for the services of his boar and for the keep of the sows while detained by him; he also pleads a set-off to the plaintiffs' claim to the amount of £3 11s. 9d., for carrying goods for the plaintiffs and for expenses attending the sale of the two sows, the subject matter ef this action. The plaintiffs deny that the sows were sent by them to the defendant's premises for the purposes set forth in the plea; they deny also the set-off, and further say as to the.latter part of the set-off, that they are not liable in law, the sale having taken place subsequently to the service of the writ. The evidence in support of the defendant's plea that the sows were sent to his premises for the purpose mentioned in that plea is so clear, satisfactory, and unshaken by the evidence adduced on behalf of the plaintiffs, that I feel no hesitation in deciding that part of the case in favour of the defendant; and this would have entitled him to a general judgment in his favour had he by his plea confined himself to a denial of the conversion. But it appears in evidence that he has sold the sows the subject matter of this action. It is necessary, therefore, for the Court to enter into an examination of the various items of the particulars of the defendant's lien and setoff; and in doing so I must diseent from the doctrine laid down by the counsel for the defendant, that, because the plaintiffs obtained the services of the defendant's boar without his consent and surreptitiously, he (the defendant) is entitled to charge whatever he thinks proper for those services. The reasonableness of those charges and of the other charges made by the defendant must be inquired into. The evidence respecting the value of the services of the defendant's boar is so contradictory that I hare had great difficulty in arriving at what I ought to allow. One witness on behalf of the defendant states that 50s. would be fair, another 40s. On behalf of the plaintiffs, one witness states 255., another 205., and that in England 10s. for a first-rate boar would be a fair charge. I allow 30s. for each sow, about the mean of these various sums. Incident to the right of a person to detain a chattel under the law of lien, is that of being paid for its keep whilst; he detains it. Here the same difficulty again, oc- > curs, namely, the contradictory evidence as to value. Three witnesses consider ss. a week a fair charge, one 35., two 2s. 6d., and one 2s. I allow the mean, 3s. 6d. a week for the first six weeks. I allow the full sum charged in the second item, five shillings a week, notice having : been given on the 3d of November by the defendant that he should charge that sum for the i keep of the sows from that period, if not removed. I next proceed to the set-off; the first item of which, 30s. for carriage, I allow. It has been argued on the part of the plaintiffs , that there was no hiring. The evidence of Ratt fully proves not only that there was a special hiring, but also that the plaintiffs promised to < settle with the defendant. The expenses of the ■ sale of the sows I disallow. It is a general rule j of law that where a person has a simple lien on • a chattel he cannot sell and dispose of it. Canezove and another v. Prevost and others, 5 B*. ! and A. The case quoted by the counsel for the defendant, of the right of an innkeeper to sell a horse upon which he had a lien, is an exception to this general rule by the particular usage of certain cities iv England. Judgment for the plaintiffs for £1 ss. 4a. and costs. His Honour then said — I consider it my duty to draw the attention of the suitors of this court to No. 61 of the Rules of this Supreme Court, which applies also to this court, namely— " 61. When any statement or any denial shall be put upon the record by either party, and it shall be proved at the trial that such statement -or denial is untrue, and the Court shall be satisfied^ that the untruth thereof was within the knowledge of the party making the same, the Coort ahaTfiT upon motion made for that purpose, award tr^Hj^' party by whom such statement or denial was ~ proved to be untrue, twice the amount' of the taxed costs of disproving the same.

"N. B. — This rub vriil not be brought into operation until her Majetty't pleasure resptctiug (fit same thall be known." and I regret that the note appended to this rale * prevents me in this instance from putting it in force with respect jo the plaintiftY replication. t