SUPREME COURT.

Otago Daily Times, Issue 1166, 27 September 1865, Page 5

SUPREME COURT.

station after Mr Cargill went np, "* and those left and sold to Campbell, there must have been 15,3U8 sheep on the station when Mr Cargill was'there. Could the jury, with the least show of certainty, say that the 778 lambs were offspring of the 10,200 sheep to which the plaintiffs laid claim ? If JD&nsey had been a scamp —which had not been proved —why should the defendant lose 'all? ■'Why should not the plaintiffs suffer like the rest? Thsevidence as to the branding; after the last shearing, went very far to show that Dftnsey desired to perform the covenant, that ho should hay no sheep on the station with the "JD—Y" brand alone, except those within, the bill of saJe. It was said that Dunsey bad been making away with sheep. Well, under his agreement with Bird, he had a. right to sell, if he put other similar oaes | on the station. There was proof that he purchased 500 wethers from the defendant. Although that number afterwards went to Mr Jutm?, no doubt the plaintiffs got their share of the benefit from the original purchase. The plaintiffs had not proved that the defendant bad wrongfully converted lambs tbeir property, because they had not proved the identity of the lambs: they had not proved wrongful detention, because thiy had not proved a title to the lambs. If the plaintiffs committed aa unlawful aci, by taking possession, before they -were entitled to do so, Dunsey might condone the act if he pleaded; but that condonation could not make anything done by the defendant a trespass. There ■ was nothing like preference in what Andrew Gunn, shepherd on Mr Camp- ?,T 72*t %r° th4s?' "f lamb* bell's run, Waitaki: I* was on'that station 11/?I 1/? i*^?!?, b£ for , y0° wet f he« wa3 sheep on the run, branded « D-Y." Up n S/m^ DOt J?, ah} e , t0 T* $ c T • ',' f nH? Al ,// i 80"1 *0 M r i"ff effect to a contract made long before Juhuss station. Abont the beginning o t ,* re wa9 anything like unpleasantness, January this year-lefore Mr J. Cargill {;Ven> betwcci f DiU f aud tne p , ain , iff( £ «»P' M bu l can fc tell how long-«ome if Danßey in contravention of his agree--500 or 600 sheep f were sent away. After meDti tot & othe _ eh Qn the 6t!Uiou \ nd shearing, .part of the B h C ep were re- kept theni with the l Btllt ion-brand on, branded »D-Y,» but on the rest various Himply the phintiffs migbt have , iri ht 0 £ other brands were put. I did not see 800 ttC tiorf but'such conduct on the part o£ lambs sent away after Mr J. Cargill had Dailßey wou|d not mnkc those othcr P alieep been up. I believe I was on the station the plaintifls'. He (Mr Cook).submitted when some went but not at the home- that/upon the case, there must be a vcrstation. I did not miss any lambs until I diet for the defendant, had been told something. The Etation brand was "D—V." Mr Prendcrgast said that his friend, it* By Mr Cook; I remember 2000 lambs the exercise of his discretion, had not being taken off the station in 18G3; I also thought it right to put into the box tae remember 3000 ewes going, and 1000 honest man, .Dansey, from whom the dewethers. There were about 1500 "D—V" fendant purchased, or to give any other eviewes taken off in March, 1863. dence. The case for the plaintiffs might T,he Judge said he could not see whit wt>" ne 'eft upon the evidence of Gunn. these shiftings of stock in 18G3 had to do *and the bill of sale. The plaintiffs said with the property in 778 lambs in 13C5. that, to answer the schedule to their bill By a Juror: There would be 9000 or of sale, there ought, at the last shearing-, 10,000 old 'sheep, before the last shewing to have been between 700» and 8000' old in December, all " D—V "brand. sheep on the station ; Gunn, who had been, Walter Grieve : I know the station that employed on the station three years, said was Mr Damey's. I went there on the Gtti that there were that number, all branded February last. I did not find any one in " D—V." Who was the owner of the charge of the run; neither Mr Dansey nor run ? Dansey, who gave the bill of sale ; a manager was there. I took possession of anl the owner of the run was, prima facie, the sheep, for Messrs Cargill. I found 5790 the owner of the sheep on it. There was —consisting of 4344 ewe 3, 90G wether?, a lambing. From what ? From the sheep 388 lamba, and 142 rams. They were all on tJie station, which were branded "D— branded "D—V." The lambs were about V ; and which he asked the jury to say four months old. I was about a week were tnc sheep of the plaintiffs, because going over the station, to satisfy myself there were no breeders amongst those which, tnat there were no more sheep there. No vvere brought on the station in November, one came while I was there, claiming to nfer tnc IIJII of sale. If thut were so, represent Mr Dansey. ■ whence but from the " D—V" sheep could: By Mr Cook : I am sure that I took come the four or five months' old" lambs possession on the 6th February. I scoured which, in January, were delivered to- the the hills well, to see if there were any sheep defendant ? Supposing there was a possion theral bility. 'hrough mixture on the Mannberi- " This was the case for the plaintiffs. kia, that some lambs might have been Mr Cook applied for a non-suit, on the brought down with the (luck from that ground, principally, that there was no Ration. Were the plaintiffs to have noevidence of identity. lambs ' They Bind that, by their bill ot Mr Prendergast was heard ; and Ilia Sil!e, lf>cy bougM Mr Dansey's property, Honor said that he would not withdraw whoever that wa?. From July, the case from the1 jury, although he was '1804, no sheep were sent off ' the strongly incline! to agree with Air Coolc. s'a'ion until January, 1865. Then, Mr Cook said that, notwithstanding the J«"t after Mr Cargill had been up, sensational .opening of his- friend, Mr Mr Danssy mustered the sheep. Because Prendergast, vo case of fraud had been he wa3 indebted to the defendant, was he proved, even as against Dansey, mucti to pick out what he pleased, and to say, It sa' as against the defendant, which "i*>u, Mr Meyer, shall have these, in part Mr Prendergast tried to imply, although payment of my debt: Messrs Cargill shall he started by excluding the defendant from ll;ive iUBt what I choose to leave fortbem"? any such thing. The question for the Dansey re-branded the sheep as he jury wa3 a very small one—Were the Phased; and he sent 800 lamb 3 away to 778 lambs the property of the plaintiff*? »he defendant. But only a few days beThe case was commenced by putting in a fore th". ne had, because of h» own bill of sale to secure L3OOO, given by objection*", been left in possession for the Dansey in 1862; though what that had to pl«"»tiffi. lhere had been a good deal of do with the question he was at a loss to I«»o« talk in the'witness box;-and Mr Joha understand, at.d' His Honor seemed to be Cargill was a^ open to censure for it as fn an equal difficulty. A bill of sale'o'f nn V other of the witnesses. But, dcispite July, 18C4, was also put in. That bill all thflt talk, there wa? not one word of recited two sheep agreements—one with evidence to-show that, at tbia time, Mr Bird, made in 13G2, for depasturing 3000 Studl.olme, or anybody else, had sheep oa sheep on terms. Bird getting 45 per cent, the station. The plaintiffs did not admif; ofths increase and Dan.<ey the residue; til** fornial n. otice was necessary before and the other being similar in terms, for taking ■powesnon under the bill of-sale: if 4770 sheep belonging to Tooth. There »*,*«». IJansey waived the notice, by hinthad also been put in aa assignment to the 8,-H con»enttn« to remain a? bailiff for the plaintiffs, by Tooth, of his interest in pl«>nt'<w. No notice was necessary, bethose sheep—that was, the sheep were c«»o Dansey had been dealing improperly purchased by Dansey, who being-unable with the-sheep; and that gave the plainto pay for them, the plaintiffs advanced tlff(J a "Bht'%> g° ™to r possession at any mouey; and the sheep were assigned by tlme- l»"e« if there had never been an atway of mortgage. The biU of sate tt-mpt by the plnintiffs-to go into possession, embraced that mortgage, the sheep having theMlcling^betwecn Danaey and the debeen hid by Dinsey; the object being to '«««*«* ™odo them guilty of a conver'extend'1 the security to the cash account, ai0(1 °f th/ l*mh« l, then. th"« wonld ** instead of to bills only, as was tne case a« end of- the batlmenr, if there was a. with the bill of safe of 18G2. Thiw hulmeut, and the plaintiff^ would be the plaintiffs, through Dansey, took the ™"*f *» g* possesnonjo.all the stock, intereat ia all the sheep ' that had inchuhng those of which the defendant been Tooth's, as well a* 1a their increase; had S9t possession. There wa» no^agreebut, as regarded Bird's sheep, the p!ain- ™al {osiveDanseyposseasiontoradefimte: .iff* could not be so entitled, for the plain- M l^- 3 he P^mtiffs coald go into• possestiffs did not acquire. Bird's interest, by B'on A^ n *hey chose; and,,on the other purchase 6r'6Wow v uAl» a month or six h«n^ Dana«y could nave paid- off the weeks after Mr Johu Cargjirs visit to the advances, and put an_ end to the bill of station. What the bill-of sale covered :f» <N whenever, he was in a. position to pay. were "all the flocjes of the said -William l bere was amply_ sufficient cwdence-to, UeywardDansey^-Bird's were not Dan- the jury m eapnothat the 800, te/s, aad could not be conveyed; " being la"'b« wf r.° *c produce of ? heep assigned now o» the said station, No. 28, Waitaki" Jo the plaintiffs; and even if they thought -at wbleb very time there were 3,00.0. that there was only afar preswnptton that aheep. 6a the Manuherikia station, which "«cli was the case, still tbe verdict should thefeScould not pass. The bill by no be for the plamtife,. leaving^the, defeaxa?aas said that all the sheep on the run *mt to account far-the value of-the sheep. w?e included. Mr, Prenderga^t, ia his As to•that value, the.pbuUib werecontent oSS stoteneuti explained tne doctrine **| «a. ke the defcdantWn statement, that KSonlightly enough. But who the lambs worth from 10 3 ,t0 12a caused the confusion here? Certainly eac"' ' . ! , not the!defendant: but the plaintiffs them- The Judr^o said that the-action was what salves, who, when, they took the bill of was technically called, iii England, ia sale, never*sent up to the' statioa, or took trover, w, as it was said; Here;'for the other sufficient meaaa, to; ascertain what wroiißfdl conversion of 778 lapbs. There there* was to he affected by the instru- was also a count in detenue j but he did not mem. H* (Mr Cook) wa?, for the pre- know that there had been anjr actual demand! •sent, willing to asatime that the plaintiffs for restitution; arid if the found for were, in Janaary, entitled to Bird's in- t'xie plaintiffs at all, their better plan would tcreat; and that,, at tH^t time, the number be to find for the wrongfuls coiiveniony ,q£ sheep, &c. to which thtey were entitled j j anu assess. a« dtrnaKo* the whoMvalne of I uiiclerrtheit;:biui of. sale, was 10,200. But J (the lambs, which value**»o»! ■■%& takco at I what was the evidence ? Taking the niin- JUs or l!Js 'ahead,': TfaV castf was one nofc bS sworii'to We be^" i^^

, j TpiffipAT, SEryEMBEB 26T0. (Before .Hia Honor, Mr Justice Chapman.)

The Jad^e took his seat at ten o'clock ', .' '','■. AT'SHEEP 'CASE. ' ' ' . '

Caboiix avd Otuebs v. Mjts'eb.— This case was' .reaiyaed. The plaintiffs, I William "Walter CargilJ, John Cargill, and Edward, Bowes Caygill, merchants, were represented by the Hon. Jajnes Prcndergast, and Mr James Smith ; and for the defendant, Charles Meyer, a station manager, Mr G. Cook appeared. Alexander M'Rae, who was examined on Monday evening, was, at his own request, allowed to give an explanation. He said: When I went to the station on the Manuherikk, no sheep were there- I took some down, and more came afterwards— about 1000: I took back to the Waitaki .those I took down. In September, 1863, 3000 lambs went f awny, to Mr Cargill, I believe. In March, 1864, 5000 mixed sheep went away from the station. The sheep I took to the Manuherikia were branded "D—V" and a bell, "A" alone, "A" and a bell, and ,» bell alone; but I made a mistake yesterday, when I said that some of them were branded " D—V" alone.

By Mr Premlergast: I have been thinking over the evidence I gave yesterday. I have seen Mr Julius since, and also the other pen-ana you mention,; but I solemnly declare that none of them lias had anything to do with my evideuce. What I came here to give, I came to give as a ; matter oV conscience.

few, e^)B|natflp;iitlnrhich tht eriiencifi t fe>id>;been j|, and: coulthdiot jfail t^bf iT?tescl.; sejntedrf tothq juvy. *> iThefncU werejnmply tl:;itbe«WXl»t - the d'6fetidant»Tbavlß^>»pld /irt'!Wetherß> to was dp ap-; 5" r parent; possession -of the 'Mttilovtr-hnymg. t^reotswedj Dansey'a; bQI once^j and Pankey ', i being istill ■ not an j a jpoiition !!ttQ;}pay— v ii -tbotrghtitrwouldibe *s well to effect a.pur>; J ; ', chase *f lambs from jJDansey,-and i set the' : r one against the otherjj Accordingly,; he ■ fflrrang«djforithe purchase., of: 778 lambs at i-i lil a Seadiiwhichwas; greatly in; excess of ,);■: their value,1 for., the pake of snatching somevr: thing outtof the, fire* That waa a : pefi !i fectly. kgaFtrauaactionj as^uroinp that the 3 : r.defendjfntrwas to .get property belonging v■; :■ ,to Danseyj;; and jt might fairly, be assumed! : : that, be had ?no knowledge of any, other property or claim ,at that time. -The " lambs * were •: delivered ;' the - defendant drove them away; and < there, as he had reason to, believe, was an end of his transaction. "But . the., plaintiffs; under :their bill? of eale, claimed piro2perly in sthbse lambs; : and 'the. whole : Question in? the! action was, jwhether the ; ; i lambs were the property of the plaintiffs, ! ; that question turning wholly upon identity. It had notbeen protended that the plaint . tiffs had given, or were in a,condition to :give, absolute evidence of identity by carj j marks or brands; and, therefore, the cqse they were, compelled to make was one of inference.- sThey presented a state of facts from .which 'they invited the jury Jo draw the conclusion, that those lambs could be none.other than the produce of ewes belonging to the plainlifra under the bill of sale. If the jury found in their.conscienceii, and with the aid of ithcir common sen?e, they cnuld draw that conclusioni then, he , (the Judge) thought they would te ju^ti- • ' fiedi;>in ■ giving a verdict for>the plaintiffs. It might eecm hard enough that property left in the apparent possession and ownership of a person- like Dansey, should be conveyed away to: others, arid that a , - purchnser must purchisse at his peril; but, -""■'• ;in;tnc present state of the law, it was so in " a vast unmber of cases. • For inslahce.'if a * horse --was' lent; to a person ;for: eeveral months, or for a seajoti, and he were seen driving-it; about in his cart or gig—doing alii apparent ■ acts ownerahip—that 'would •• rotf make '-him the owner;

' and; if : the'riersbn fo using the boree offered: to make a sale to a third person, | the law cast upon that third perfonthe - bnrd,en.of enquiring in.whom the property .really was;.' In short, no man could .give. a'better title id any chattel property, than that which he himself/had in it. But in drawing, the inference which. counsel for , the plaintiff had. asked the jury to draw, \. there ought to be an,exclusion of the ' ' * possibility, of other breeding stock on^he. •■', station: and 'that was a question which" '„ .'the Jury must determine—whether, under I.the bill of sale, the whole of the ewes on .the station on ; the 21st July, 1864. were / assigned arid conveyed to the plaintiff t ; or ■ - .yheiher there were, or!might have been, "i. other'ewes, from which-those 778;1amb3 '^ihigbfc have been.: derived?, Because, it '{roust, be obvious that if, besides the proi .perty assigned to the plainliffs, there were r ewes htlongibg .to ! A, l fjß, and C, that ,'" pointed at once to the possibility that those lambs might have been from other ,ewea' '.thani those ', of the plaintiffa. He thought . "that the possibility $ ' that" fact weuld ,entitle the defendant to » verdict; for the simple 'that, the plaintiffs were •'• bqunditoprovetheircase. No doubt, the der. firidant ought .to have enquired as,to whose .-thelambsi vvere^ Possibly, the result would ./.i'.have been abortive; but if hefhad been _T guilty of,neglectiDg ,'^he, du(|y which the Jaw-cast upon t hiin, he was liable to, the ■ consequences. ; But, as a matter of lavj*, the.. ~"■ plaintiff, in every in^oricc, was bound to ; .prove his case. , The law eaid that the pos- , .session of the-defendant was to be pre- : ferfqd; or, in the common phrase, f lJos- - session is nine points, of the law."- Thtsf ibill of .sale appeared to have been registeredinthe Supreme Ctiurt; and any man ',\ who proposed tojpurchase largely:from the, ..: person inappar.qnt ownership of the station, mightliave walked dpwp to the office, arid ,ascertajneilM whether ~the property was ..charged in, any; way; or not. If the dofen-- ■/• • ; jdarit hat] t taksn* that trpuy.e, hejf.ightihave* /.! found that the sheep .were mdrtgageul', -,-Wjhere f a man caw that the ow/ier of. a" station was continually buying -and shift-. : ,ing; stock,: lie would, not be likely, ._,:■.; to, take sueh r a . step, as to -inquire i.j ;. : abo.ut regis.tration 4 pf p bill of ; sale, if he, --'■;.rionly wanted to purchase a fe\v, head ; but* ; , ; where a .whole property -,; was proposed to b^j f. i ■■purchased, it was-usual .to make the: inquiry.. , If,a butcher only;vsanted to pur-: -';.■; chase a:fcw:ewesi it wpuldirjot, perhaps, be said that he was guilty of imprudence if h^ : . hiidnotso inquire. The qviestipn simply : ; was,i could the jury -infer; that there I: '.were, no ewes fan ~the; atatipn,< which . Jrtmight :have theif 7^B lambs, :.■:; eicept .thq. ewee wWeh undoubtedly Ye- - ..! .longed to the plaintiffs; under the bill of \' -sale.; Something ; h»d. been -said about .''■.; i ;■" faking possession.: ,He did;not: think that. i t i.-.; that; was. necessary ,:,to complete the' ■-}.-, iplaintiffs', title..' They were really owners' ;. by thei assignment of .the: 21st July. • -i) cThere ; wasi a: sort .-of j takinjr'possession - .vsof ..the 16th January;: but he did J !<!not- think,,that; -the;.: nature of Daa- : i . vsey^s appariEnt ! Ownership jwas ;at all , ; i.altered -thereby; and there j was a'com--;plete; change:on the 6th February, when t: i Grieve: took, possession, and there was als^ - :i the: acknowledgment signed by Mr Dansty t:i i: subsequently.- • His Honor ; readi ihfi. - ■:.. principal I part*•<of '■ the (evidence,' ; arid" ur ;. commented pa it^ As to the re-rbranding - r. : : after" the last shearing, His. Honor said- that.' ; -there were two hypotheses put forward. . : The first' wae, that allthe sheep oufiht to ; ; have been branJed? to identify them belonging to the plaintiffa urulei; i ■■•■■, their bill^ of sale, whereas Dansey, intending sorhehow to raise moniy upon them^ ; ;; wrongfully them with different i : ibranda-to facilitate, thdt purpose. The' - :-J\ -A* other was. that the re-branded, -■ sheep, not belonging to the plaintiffs, and : ■'■■:;■:■ being branded, iot with: 'f D— V" only,. '^ !: but with: a bell ;-l added, were re-branded' -■'-". JfioO as ito" assign :them;^to .'their real owners. Were there were two such hypo.- -;,., these?, th^t; one should hsfiivored which; ", - could beaccounted. for on girouQds of xax\- \»,■■ + '~" ralitw | It' appeared .thajLMr Studhplme. - i' got 6ptpp 'aheep—it must,be; presumed, ,i. xlwh'tly^itierefprc, "there ,yrere on the sta-« * T'tion'sheepoibferthtui those 'belonging,to. :': " C t "':, the ,ptainj|(ffy I and thie lambs ■ia.qdea^on; I * ,*. " have come from those sheep; r^V- "foti^tter^ww i-'i -■ ■-' \ -'nefsoqi TOght»»:^°^ --':-

'"f^'ibai-ibese 77f 3JfTn)ib3 f wi|e"r]t!ie prpduce of the ewe» conVeyed by that -instrument, then itisicompetent Xo.y<m. to* give a verdict 4 W ttie' 'ttWntlffs; '-If, on other ha;nd,;iydu-th'iak there is eocb cbnfu-. sipn in the ; matter m not to,enable yon i:o come U> thatconciusiofi, tnen, inasmuchjaa: it is incumbent on HheplaintifFs to. prove their case, I think thai ryoar -verdict 'be':ft)rthe'defendant:;-' ;';',,r vr:> ."■u;.:;. \

Mr P/endergast called Hia Honor ft atf entibii to 'a}1 decision of Mr ; Justice Johnston, in*insolvehcy; and'heijalied tliat the jury should be told-that there was'nq appro^riatiotfof sheep to |Bi^d^--np; setting aside o( anything; ; '..'■'■'■•' ; ' i - The Jiidpe rlVhat are the words of the"instrument? : ;r'" '*• ' f '

Mr \PrendergasFsafd that it recited that eneep had been delivered^—which Mr Oargill said was hot the case. The agreement was tHaf Bird sbbuld'alldwDansey to haye possession; and that"l)ansey' should keep possession; and Dansey* guaranteed a -certain' increase to Bird, the remainder be-r coniing the property BfDflTisey. : ;• The Judge: Then the remainder is undoubtedly the : plaintiff's. The interest that Bird had, hecaine Glasgow's, and did not go to the plaintiffs until February. There is an! increase, originally Bird's, then Glasgow's, and then the plaintiffs', which never was Dansey's. Mr Prendergast said that Mr Justice Johnston had held that where there was simply' a guarantee of increase; liut no appropnation of sheepi the property remained in the runh older. . ; :

:The Judge: Supposing the owner of a; station takes from me 3000 ewe* on thirds,' as it i-i called ; but afterwards says, " Instend of caring for; the exact proportion of the lambs,1 I will guarantee you a certain proportion on the number of sheep," are they not rhy, lambs ttill ? I think they are ; and I shall tell the jury so. . Mr Prendergost: There is here a power, to Danrey to deal with the sheep. , ' The Judge: That means, supposing he had wrongfully told lambs, belonging ito Bird, a sort of condonation beforehand. I Mr Prendergast: So long as he keeps an eqnaTnumber of the *ame kind onthe run. The Judge: The agreement seem* to leave the possibility of there being lambs the property of Bird'firati'and then of Glai-gow; and, further, it ' gives'Dansey a: control oVer them. '

The jury retired about a; quarter after twelve o'clock. . '■'.]■• Soon after two o'clock, the >j (Mr J. T. P;Bbyd)_ came into Court, and said—The jury" wish to know whether Mr Meyer was on his way from Daneey's station when'he met&lr Cargill ? C ■ The Judge ; They met on, the, J4th of January, at! Little's Accbmmodaiiou House; the 15th was Sunday; "on the ;16tb, Mr John Cargill got to the station ; and the lambs were sent away on the 18th or 19th: But you, must remember that Mr Mpver hnd agreed for the larntis at the end of December.' . ' ; , ; The^ Foreman: The object of thij question was to ascertain'whether Mr Meyer returned to the station after the meeting.

The Jndgc : No ; he did riot return. Ten minutes later, the Foreman again came into Court, and said that there was no chdnce of,the jury agreeing. j . " The' Judge said he could not discharge the jury without a verdict; but be would^ consult with Counsel a3 to whatcouldbe done.;" "' "J" '■■''"■' .. ' ": '; ' ■' ■ s

•\ ' ItUtning Jcould be agreed upon. About four o'clock, the Foreman ask^d to pee the JmigeVHri aiview to oblaining refreshments;' but bis; Horibr had temporarily left the J'C6urt.: Permisaipri to send for refreshments .was given asisoon as his Hohoi' returned; and theT Foreiuan then "stated that the jury were divided, eight to fotfr. As Counsel'could not agree; as to terms,upon, which" the jary should; be discharged, his Honor said he should retire Until'seven o'clock^' ' K-i -

'About half-past seven b!clock, the Judge came, into; Cdurt, and again sent for the Jursv.,"': \' { ":' ";.■.'"; -j " .'."""' ; •■•' . ,The Foreman said'that, there was still no"'likelihoPd of an agreement; and the jiiry were jsent back to their room. _, ■ Tlie; Judge said there was a .chojee of .three,"courses—-Td r take ayetdict of twpthirdy: of 'the 'jury ;'' to' discharge1 the jury upon1, the condition of trying again; or, to-lock the jury up for thenight. Aloriei He Mad no1 power,' except' In the, last course., ~': , '..',' :':''' '. . '"■

'", Mr Cook said that ho" was willing to haye 1 the jury discharged, and'to go to tiial again upon the. present pleadings, tipon cpndition' of each party paying! his ■p.w.ri cPsts. ' •' ' ''' '[''' .". f ' ! ■.'" "Jilt I'rendergast said that what he |had propped was that, iaasmiich as theplaintiffs had' had to Call" all the witnesses, • the 'costs should abide the event; 6fi the hew

trial/5;; .■•;'. .'; ' ■'. ■• ;.■'•■ ■••■:•• The Judge: I capnot say that that' abaU'b'e'so. ' .- ■'. : ■■ * ■ - . '^ ■■ _ ; ._, 1 Mr^Cpok'- The I^ule 8a"y8 ttiat, mi the event of. the'discharge of a jury, the trial .shall,'lie, fit "an eiid., ■' .'::'~']'i- '.'_' '• /'; :;' ] ,The. Judge: Of course,' rig Counsel; 'could ,cb ri^eut to a discharge ' W terms. ■ : '~ ' ~'• ' ,". " ",' "'.!''" /'-■'.'".:! ! . After some: consriltatiqnbetween Counsel; : ' The Judge asked':. Then, I; suppose I may discharge the. jury, eac^ .ifoxty' to! pay his own <Jrpstsj arid the "case ,tci be: tried again on October 4th', or .sribs^tiueritly P ' ,i Mr Preudergast: I have discussed^ the 'matter a good de&l, ypiir Honor, with my friend, and also' with my client. ' 'We'do nbt.thiiik that the proppsal ■;as to 'costs" is fair^:':' '""' •'.'.'"""' ' ■'.■';."■■'.'. '■ ■ "'. ■. ' *'. The Judge,; Then,; I'lllpck! the jury upi I have no other alternative. '"". "'" ;

The jury were called in andiriformerl thai they ia,ust be further* locked up ;- His Honor adding that if they agreed at any tiraeiduring the night/ 'and informed the constable,'he (the Judge) would be down to the Court within an hour." ,

■ !,The Foreman .(who was sfppped by several of the~ jurors,, on his way to the ropm, Returned); The jurj airti' anxious to know whether your Honor will'wait- ii Court nowfor a quarter, of an. hour. "•"• • ■ ' The Judge": Yes, I wilt wait for an hour, it thercis any chance of yoxtr agree--'ing. ",'■,' '*-",!'"' '".'!;.'''"'"' '' I • Shortly after1 eight o'clock,'the; jury once more returned, "havingagreea; an f d they, gave a verdict for5 the" p'laintiSs— -} damages, Ll5O. '-'■ :, -'': ''~' .";;"■' '^' l,~!\ ; TherCpurt . JaSjotrrried-; until'ten o'clock this: forenoon.:-^ :" iV'^ \ ■;'■,■■'■ . The only re'niimirig "(except those "i}jce4rtpI?De.'-takeni.;notFbefore.rWedneiato3r il next)' is Cat^iU a»«f Qors^.vt'i Jvtliiisf jrliluliis a jCtaim Tor sheep alleged to have been[lncluded in" the i'-bWf of*sale to the plaintiffi: of Mr: Dansey*^ sibcK f ;It ;was

j"gSst-a^!ygd-tQ"lmqwtheTerdictin GatvfUA ; arurOlhers^. Met/er^, beforeTdt^iaing what' course he-should lake.-— ! •