CIVIL SITTING.

Nelson Examiner and New Zealand Chronicle, Volume XXX, Issue 76, 20 January 1872, Page 7

CIVIL SITTING.

POWLEE V. POWLER AND YOUNG. This was an action for specific performance, brought by William Longney Fowler, the plaintiff, against Nathaniel Fowler and Joseph Young, the defendants. The plaintiff's declaration Bet out, that previous to the 27th August, 1868, the plaintiff, and the defendant, Nathaniel Fowler, were interested as equal co-par tnere in respect of the occupation, under a depasturage license, of 20,000 acres of land in the Upper Wai-au-ua district, issued in the name of Nathaniel Fowler, and also in respect of certain sheep and other stock ; that before that date, the plaintiff had purchased from Mr. C. B. Wither 425 sheep for and on account of the partnership, which purchase was approved of by the defendant, Nathaniel Fowler ; that on the 27th August, 1868, an agreement was entered into between the plaintiff and the defendants, by which the partnership then existing between theplaintifl'and the defendant Nathaniel Fowler, was to be dissolved, the plaintiff to retire, the defendant, Joseph Young, to take the plaintiff's place, and enter into partnership with the defendant Nathaniel Fowler, and the defendants to pay the liabilities of the former partnership, including the liability to Mr. Wither, in equal shares ; that Mr. Wither had recovered judgment against the plaintiff for the amount of the purchase-money of the sheep. The declaration concluded, by praying that the defendants might be ordered to pay such amount as might be found by the Registrar of the Court to be due to Mr. Wither, and also the costs of the action. The defendants pleaded — 1. A general denial. 2. That there had been no partnership between the plaintiff and the defendant, Nathaniel Fowler ; and that the sheep purchased from Mr. Wither were purchased by the plaintiff on liis own account, without the authority of the defendant, Nathaniel Fowler. 3. That the liability under the agreement 6et up by the plaintiff, was conditional on the delivery of the sheep by the plaintiif to the defendant, Nathaniel Fowler. 4. A subsequent agreement with the defendant, Nathaniel Fowler, in satisfaction of the first. 5. A subsequent agreement with the defendant, Joseph Young, whereby he agreed to pay for Mr. Withers sheep after, and not before delivery. The case came on for trial on Tuesday, Janu- ' ary 2nd, before the following Special Jury : — A. Warren (foreman), T. Cawthron, W. Wells, F. 11. Blundell, C. Canning, E. Lines, G. Talbofc, W. Stavert, A. ft. Austen, T. R. Fisher, C. F. W. Watts, and T. Newton. Mr. Pitt and Mr. Henry Adams appeared for plaintiff; Mr. Aoton Adams and Mr. Shaptee for defendants. The pleadings were intricate, and the transactions between the parties were very complicated. Mr. Pitt opened the case for the plaintiff, and called as witnesses in support of their case, W. L. Fowler, John Lammas, Hans Fanzelow, J. Sharp, C. Manders, H. Edwards, M. O'Loughlen, and C. B. Wither. The evidence waß very long aud uninteresting, and showed numerous disputes between the parties, and several arbitrations. Mr. Acton Adams opened defendants' case, and called as witnesses on their behalf N. Fowler, J. Young, R. M. Sunley, C. A. Muntz, and

J. Lammas, and addressed the jury, commenting on the evidence, which was very contradictory, at some length. Mr. Pitt having replied, His Honoub summed up, putting the evidence before the jury as concisely as possible. The trial lasted three days, and on Thursday, at four p.m., the jury retired to consider their verdict. After an absence of more than six hours the jury returned, and delivered their verdict. The issues, and the finding of the jury upon the same, are as follow :—: — (1). Were the plaintiff and the defendant Nathaniel Fowler, previous to, and until the 27th day of August 1868, carrying on sheep-farming operations as equal copartners, as in the first paragraph of the declaration alleged ? — Yes. (2). Was the depasturing license mentioned in the second paragraph of the declaration, issued in the name of the defendant Nathaniel Fowler, but were the plaintiff and himself as such copartners jointly entitled thereto?— Yes. (3). Did the plaintiff purchase from Charles Bigg Wither 425 sheep, for and on the joint account and benefit of the Baid copartnership, at the price of ss. per head, and did the plaintiff agree to pay interest thereon aB in the third paragraph of the • declaration alleged ; or, did the plaintiff, without any authority from the defendant purchase the said sheep in his own name and for his own account only? — The plaintiff at the time of the purchase made it on his own account only. (4). Was the fact of the said purchase immediately made known by the plaintiff to the defendant Nathaniel Fowler, and did he approve of the same? — The purchase was made known to defendant before June, 1868,, and defendant approved of it at the time of the arbitration. (5). Were the said sheep placed by the plaintiff upon certain lands then and still occupied by him as a run, called Stanley Vale, and have they ever since continued to bo in the possession of the plaintiff? — The sheep were first placed on the Stanley Vale, and all that could be found were removed to Hopefield before June, 1868. (6). D- : d the plaintiff and the defendants mutually agree as in the fifth paragraph of the declaration alleged ? — Yes. (7). Struck out at trial. (8). Was it on the same occasion mutually agreed between the plaintiff and the defendants, that the plaintiff should deliver the said sheep to the defendants before the defendant should become liable to pay to the said Charles Bigg Wither the said purchase money? — No. (9). Were the terms of the said agreement alleged in the fifth paragraph of the declaration so far as they related to the plaintiff and the defendant Joseph Young, reduced to writing, as in the seventh paragraph of the declaration alleged ? — Yes. (10.) Did the defendants after the said twentyseventh day of August, one thousand eight hundred and sixty eight, obtain possession of the said sheep so purchased by the plaintiff of the said Charles Bigg Wither as aforesaid ? — No j having already possession of all that could be mustered. (11). At the date of the last mentioned agreement, was the amount payable to the said Charles Bigg Wither a liability of the said copartnership, and had the defendant notice that the same waß unpaid ? — The amount payable to Charles Bigg Wither was a liability of the copartnership within the knowledge of both the defendants, but no formal notice was given them. (12). Did the said sheep then form any part of the sheep then being upon the country comprised in the said depasturing license, called Hopefield ?— Yes. (13). Was the said account payable to the said Charles Bigg Wither a liability connected with the sheep then being upon the said country? — Yes, so far as concerns the sheep purchased from Wither. (14). Have the defendants since paid or otherwise discharged all the liabilities of the Baid copartnership except the said amouut payable to the said Charles Bigg Wither, and have the defendants refused to pay the last mentioned amount?— Yes. (15). Did the said Charles Bigg Wither on the 18th of July, 1870, recover judgment in this Court against the plaintiff for the said amount and interest, and is the same still unsatisfied ; and has the said Charles Bigg Wither threatened to enforce the same, as in the thirteenth paragraph of the declaration alleged ? — Yes. (16). Did the plaintiff, and the defendant Nathaniel Fowler (on behalf of himself and his partner and co-defendant Joseph Young), during November and December 1868, mutually agree, that he the plaintiff would deliver the sheep so purchased from Charles Bigg Wither to the defendants, and that after, and not before such delivery, the defendants would pay the said Charles Bigg Wither for the 6aid sheep, and that such agreement should be in lieu and satisfaction of the first agreement between them as in the second paragraph of the fourth plea alleged? — The plaintiff agreed to deliver all the sheep (if any) bearing the two brands (Withers and M'Lachlan's), with their increase, that remained on the Stanley Vale Run, but the jury have insufficient evidence to shew • what the agreement further contained. (17). Have the defendants at all proper times been ready and willing to take delivery from the plaintiff of the said sheep, and upon and after such delivery to pay for the same ; and has the plaintiff always had notice thereof? — Yes.

(18). Struck out at trial. (19). Did the plaintiff, and the defendant Joseph Young, agree that in consideration the defendfant Joseph Young then paying him the sum of £100 therein mentioned, he the plaintiff would, on his return to his run, forthwith deliver to the defendants the said sheep, and that after, and not before such delivery, the defendant Joseph Young (on behalf of himself and his partner and co-defendant herein) would pay the plaintiffs therefor? — The plaintiff agreed to deliver all the sheep (if any) bearing the aforesaid two brands, and their increase, on Stanley Vulo. (20). Did the defendant Joseph Young pay the plaintiff the said sum of £100, and otherwise perform the last mentioned agreement on his part except as to paying for the said sheep ? — Yes. (21). Did the defendants become partners in respect of the said sheep so to be delivered by the plaintiff?— Yes. (22). Struck out at trial. (23). Did the plaintiff at any time deliver the Baid sheep to the defendants, pursuant to either of the last mentioned agreements ?—? — Yes, so far as all the sheep on Hopefield are concerned. The Jury are not satisfied that there may not be some stragglers of the flock bought of Wither still on Stanley Vale. At the next sitting in Banco, the Court will be moved for a decree in the terms of the prayer »of the declaration.