SALE UNDER WARRANT.

New Zealand Herald, Volume LXV, Issue 20083, 22 October 1928, Page 7

SALE UNDER WARRANT.

RIGHTS OF A BAILIFF.

PROTECTION OF AUCTIONEERS

AN IMPORTANT JUDGMENT

Ari important judgment was deliveied in the Supreme Court on Saturday by Mr. Justice Smith on an involved dispute arising out of the sale of the wrong sheep under a distress warrant. The action, heard on October 3, was brought by Tema Pomvhare Kewene (Mr. Holmden), licensed native interpreter, administrator in the estate of Pairama Keeiia, deceased, against Alfred Buckland and Sons, Limited, auctioneers (Mr. Burt) and Constable A. J. Maiden (Mr. McVeagh). Plaintiffs claimed £246 for the value of sheep sold, lambs dropped, and wool. Mr. Holmden said Pairama Keena, a half-caste Maori, farming near Pongatiki, in the Tuakau district, died intestate in 1923, leaving two sons, Ben and Clark Pairama, and a daughter, Lucy. Clark Pairama died in 1925, leaving a widow and 10 children. The widow applied for letters of administration and when plaintiff was appointed to administer the estate he put a manager, J. D. Burgess, on the place. Counsel said Burgess ascertained that 184 sheep had been taken away by one Davis, who previously had charge of the farm, and he took proceedings to recover then# Davis counter-claimed for all the sheep, about 300, remaining on-the farm, but judgment was given for Burgess. During the progress of the case it was learned that Constable Maiden, bailiff at Tuakau, had seized 97 sheep under a distress warrant against Ben Pairama and had had them sold by Alfred Buckland and Sons. Counsel contended Buckland s action in selling sheep which belonged to the estate, and not to Ben Pairama, amounted to knowingly meddling with trust property. Early in the case Constable Maiden was struck out of the proceedings. His Honor said he was of opinion that the sheep were the property of the estate, but it was difficult tp infer from the evidence that the defendant company was aware that the sheep received fiom the constable were trust property. Even if the company knew the estate brand it did not prove knowledge that the particular sheep branded, at the time of theii receipt, were the property of the owner of the brand. Moreover, it was not shown that the company knew the sheep bad been seized under a distress warrant against any of the Pairama Keena family. Even the constable had thought Davis was the owner, and they were sold with his consent.

Under the circumstances it was necessary that the bailiff should arrange with the defendent, or some other company, to sell the goods. It was contended that the defendant company did not act in pursuance of the Act because the goods sold were not those named in the warrant. That, however, was not the view of the Courts. The Judge quoted authority to show that it was sufficient, to secure the protection of the Magistrate's Court Act, 1908, that the defendant should have a bona fide belief in a state of facts, which, if true, would give him the right to act as he did. If bailiffs were not so protected they would be exposed to many vexatious suits. Where a bailiff was directed to restrain the goods of A, and where in good faith he distrained on the goods of B, he was entitled to the protection of the Act. If the bailiff was protected, so should be the auctioneering company. Both bailiff and, company had acted in good faith and plaintiff was nonsuited with costs on tho middle scale. The defendant company had not been entitled to join Maiden as a defendant and so must pay his costs, 30 guineas.