SUPREME COURT.—CIVIL BUSINESS.

Otago Witness, Issue 571, 8 November 1862, Page 2

SUPREME COURT.— CIVIL BUSINESS.

Monday, 3rd November. (Before His Honor, Mr Justice Gresson.) TUE GREAT SHEEP OASE.

Trschesiaker and Another v. M-Leav— (Spe cialJury.)— Mr Gillies and M- Cook for the plaintiih); Mr Howorth aud Mr Barton for the defendant

His Honor was engaged with the counsel, in chamber?, for more than half an hour this morning, it being understood that an effort was being ma !e t>> come to an agreement for a special case. When his Hon">r took his seat, at twenty minutes to (lev n, he sni I they had hi en endeavouring to save the jury some trouble, but ho was sorry they had failed. John M'Lean, the defendant, w s recalled by the Judge. He said that the L1,5M0 bill from M'Andrew was purely a matter of aceoimno latiou to hiin-el . in Older to send a remittance to Canterbury ; but the bill was not re illy me 1, except as to paying in and withdrawing it from the bank. .His fl ok hai always been clean. Fiom November, 1860, to Jmuavy, 1881, there were in his flock more than 2 450 ewes, "from two to full mouth ' There were m-u-e at tne present time. In .November, 18G0 there were no I >ts of ew s specially separate! from the fl tck. Shearing war, nlwavß cj npienced as early as possible in November Ho believe 1 that Tesche>nnker might have told him, before the signing of the wool money memorandum, that he (Tesciemaker> had paid M'Andrew for the sheep. Mr Barton then proceeded to sum up the case for the defendant. He i-a'd that from the pleadings, it was clear that thp plaintiffs meant originally to rest th ir case upon an alleged coDtract—wluch had bpen called ihe wool-money memorandum — that if the p'aiutiffu preferred taking the sheep in January, 1861, instead of November, 1860, the defendant would allow them 2s 8d per head, in lieu < f wool. Bur the opening address by Mr Oiok showed that it wns meant to proceed as in an action of tort, f>r the wrongful conversion of propeitv — to tre - »t the deun dant as a mere caretake of 2,450 sheep, which he fai'ed to deliver upon demand, • The latter was no doubt the more important aspect of the case, and hewouli deal with it first. Many cases hoi been cited by the plaintifla' counsel, to show that they could recover damages for wrongful conversion; but

he would show that tbongh thewho'e stream of law ( ydealinsr wth ci&.sfrom ISOi to 1857) some of th *c cues wei-) <'o tl>te.l, while 0 hsrs bad b.eu ex pie sly DVir 1 uiecl. As far as the merits were concerned prior to action, he thought the jury would agree that the par ies to this suit were pretty nearly on an equality. It was a struggle wlreh of them shouM avoid a lo*s Tl>e plaintiffs were striving to -el 2,450 .sheet', fur which fiey had paid a man, and which they rad the defendant was liable to deliver ; w lile thd defendant w .s- striving only to hold his own sliee,)— not to dye up any until somu <>ne had pi d him for them. The ca-e. it must be admitted, was very nelr the boundary line e-tiiblislied by the authorities; but he s'uuild contend that there we c fact* which made it fall 011 the t-iiie of the nonliahilily of the detent ant. Iv all the decisions, outside the question of a delivery order, the point was to ascertain wliethpr possession was in one party or the other ; an 1 to decide that point, the Grst thing was to discover whether the (mods were specific or uiiascer ai'ied In Hurry v Mangles, If timer v A ndersim, and o'lior of the early cases, there was no question that thp g.inds were specific, the dispute b< i >\z whef ler the tacts amounted to a de'ivcry. Whitehtuw v Fro^t (12, fast), d-ci led in 1810. was strongly relied npon # fortiepliii,tiffi. In it, ihe Ju ges held that certain facts amounted to a delivery often turn o f "oil, although it ha I remained in a cistern with forty other tuns; hut in Austin v Craven, Lord Cuieflustice Mansfield reviewed and rev. rsed that d.x sioa. holdinir that there i^d be 11 no delivery heea i^e the oil had remained in the cistern at the r'i-k of the v-n-dor, and not at thit of the sub-purchaser. ipnly thi-j in pas^iiig, to the present ac i>n Th.- plai ;t ffs now s dd fci at from May, 1830, the lefendnnt was -imply caretaker of the sheep ; but suppose that between tha time and the following November <t January, scab had broken out in the defendant's flock, who w.nill have I.ee-i liable? Tbe contract between the dtfeidant and M'Audrew was to deliver free of disease ; and if the jury settled in their mind-t hat the defendant would have been liable in case of scab, they weie bound now to find for tbe defendant. Suppose M'Andiew lial not become inso'vent. an lihit the sheep had beciine scabbed, a case miihfc have arisen in whrch th; now defendant wouid have sued th.' p'aintifft for refusing to accept delivery, so near the 1 OU'idary line was the position of the p-n-fi*>s. G'dIdt v. llill t had been quoted as a ver\ strong case for the p'uiiiiifF-. ; but the marginal n >te, w« eh wa alcne read by Mr. Co ik, <li 1 not correctly repie'-ent tlie in iit"r. The goods were in t fFt'ct specific, or set apart in thit ease ; for the defendant, receiving an order ti deliver to bearer "five sacks of flmrex twenty," had delivcel the five »nd filed th,; order unconditionally, and it was held that be wa 1 * thereby precluded from .tftenvards setting up that he never held m. >re thau five sacks lor the giver of the 1 rder M'liivai v Smith (2 House o r ordsU.ises), Aldrige v. Johnson (t E. and U. a I, 885) and numerous ot ier cases were cited by the leiune I coiuu-el. It would be no doubt attemp.ed on * the other si.le to rai-e the doctrine of estoppel. But it was .a thoroughly settle 1 doctune that cstoppal could be iai<ed only where a party, by w.lful false statement, lad misled another to hii detiiment ; aud in this Cii-e he should conl-r.d that theie had been no f ilsu stntenici t on one side, nor any detriment on the other. Coming to the evidence, the learned counsel said it would no doaM be conteii'Ud for the plaint its, that thei e being ,x c infract bet.veeu M'Andrew an I the defendant, the beiufir, of that contact, without the burden, was tntnsferred to the pluintiiK Dy a.:ts to which the defendant was a party. By the St itute of Frauds, a <-.nitr«ct o-iee red ced to writing inuot Stan lor fall by its own terms. The necessary elements of a contact were, the "ettine fordi the parties, thesubject-uia;ter. and the consideration. Tne pleadiiu'S set. forth that 'he wool-money memorandum was a &epat\ue and distinct contract. The Words of the document were :—: — " (Teiitleiuen, — Should you prefer taking deiiverv of the shyep in January. l8*)l, insreul of lioveiub.r, IStiO. I will allow you at the rate of ii (id per head in lieu of wool "John M'Lkan " Was "aentlemnn" the proper name of one of the par.ies ] If not, it was no contract, because the nii.nes of the paities wire^iot set forth; a.jd, in addition, there w.is no cjiivlJeratiou slated. Ihe memorandum was at font of a dojume b beginning, I hcrobj uji'iett-ike to deliver to the or ier of James M'Audte-v,'' wnioh was clearly 11 it a contract, but simply a delivery order. On the back of the document was written : — " Please deliver tiie Fame to Messrs Teschem.iktr aud Stioiie, or their order.

"James M'Anduew." There was no evidence whatever that this writing was seen by the defendant at the time ; there w.v-. evidence that he did not see it until tbe sheep had been demanded aud lefuswl. That was auotJiet point iv the ease. Taking it, however, that tiie writing at tbe back was made with tlie knowledge of tbe delenUaut, aud time it and all that was upon the froi.t was to be treated as one document -lhat being the strongest possible dssumption against the defendant —it could only he luoke I at as a contract between all three of the parties. But it could not be such a contract, because Al'Andrew's older to deliver to the pLii-itirF*, might be revoked at any time ; and one essential element of a contract was that no one Cuu.'d revoke his purt of it. What w»s necessary was that there, should be some evidence in writing that, tiie parties being together, there was a general consent to the substitution of the pjainiitfe tor M'Andiew — a ieleasin;r of the defendant f'om bis liability to M'Audrew, and a making of him liable to the plaintiffs. When Robert M-L'-jui ruluseJ to deliver the sheep on tae dthveiy orJer of M'Au.irew, the plaiutifh must have known at once that there was aivaboti for suuh a refusal; butalihju.h 'hoy returned and demanded explnna ions of M'Andrew, they seemed to have ok 11 pjc.lied by a-i avsuraucss that there must be iOme mistake, and that all would be right on the return of the defendant. Upon the facss, ad the doctrine of evopual wns in favor of the defendant, not ot the plaiatiiia. They w .tche I for the return of the defendant, eaily the v«.ry day after h,s anival, M'Amuvw aot, the ilohve-y oider. They were at the time acting under ,egal advice ; they hud fetred th (t they were going to lose, becnwe of M'\ndiew's conduct, the money pan fur a run, as well as that fjr 2,000 theep. altliongh tne loss of the run was fortunately avoided ; and th^re. could be no doubt that they were eager, it they pojs.bly could, to get some jJersou into the scrape su as to relieve themselves. Loot at the undei taking toueliier to M'Andrew, and thewool-meinoran nun. Theie was pl-nty of blank paper at th boitom ; and the writing at tbe back, ii'it beinj>, in a ie^al sense, an endoibenient, need not have been written ar the back, a:id fiould have beeu wi-itten at fiot 011 the front. I'eschemaker wrote the wool-money memoranduui, and the defendant signed it, intending it to a|>P'y ouly to M Andiew, and exnressly sta.ing ilmt iuieution ; but what more rensonable than that the defendant should tiku the paper and tyn without lookii.g at the back It w.\* vei-y like e^oppal oa Tusebeuiaker's part, that he did n.,t exprss-iy point out the writing at the back. Under all the' circumstances, win it not more reasonable and right tint the p.uiuti.ts shoul I be estopped fnmi saying ihat " Kinilleinun" liieaut TeSuheinaKtii* and Strode, th.iv the defend mt IVom saying that it meant M'Amlruw and Co Even if it weie nue that the pliiiutilfc were mt properly informed of the nm - payment to the deteudant by M-Audivw, tney "mu.-t have known, from the prior refits d, that thu ddfe .daiit would not ft^t M 'Andre v; aim tin ir du.y was, to have fa rly said to the defendant : •• We have paid our money to M'Andiew ; ha-i he paid you. l " The wording of the wool-money urmorauilum, Tisi'hemaker'sowi wiitiug, suppo tsil the de feudant s ca^e Something \y.is t>be ' abuwed " per had on the bheep ; clearly implying a payment to tbe defendant from which, when m tde, ther« was to be a deduction. All tins was upon th pldntiffs' ca-e ; upon th.' d leudaut's eviuence, the ca.-e whs so g that it was impossible 10 break it own— it must be it question of erelibi.iry for the jury Th re was an utter absence ot anything like specific appropriation of sheep ; and uutliitig had be n done i.r per tnitted by the detV-n laut. winch, am >untcd to h to fv iture of his lien. After Koin^r 'hrou^h the is-snes, the learned couusel said he cuufideutl^ looked for a decison ot the jury iv favor of tlie defendant ; but iJuu d it be otherwi.-e, ho a gued that in such a ni>pute, wheie one of two hnd to suffer for the wronir-domtr or a third, there ought to be authiug like viudiuitive damages, and the defendant was not, entitled to more than the value of 2.450 two-tooth to fidl-mouthed ewes, nt the time of the breaking of the alleged contract. Mr Gillies (at four o'clock) commence 1 his rep'y for the pi lintifid. The case was a very imp rs iwt one, not so much for the amouu' involved, or the greai tenacity with which it had been fought by the defendant, as from the avowed rleierminiition th t, cud here how it nii,dit, there wuuld be an npppd to a higher court. More than all. the Cisc wns now important because it must affect the character of one or other of the pa ties He th mgiit at the former trial that the direct contradict ons ns to events, and conversations, resulted from forgetfuim ss or mistake ; but with the fullest opportunity foi refl -crincr on what passed at the previous trial, ihe parties still adhered to their former sta'ements There ha I been an error running through the long and able ar uments of the learned counsel for the defence, founded upon the idea of trover and contract. The learned counssl hid said, "If your form 1 f action is on contract, delivery destroys right of action ; if, it is in trover, non-delivery destroys that right," It was true that the constructive delivery which -the plaintiffs contended took place, would hnve been a good answer in an action between M'Andrew aud the pluintifh; but this action was on a substitute'! contract which was accepted by the defendant. By signing the wool-money memorandum, and accepting the plaintiffs thsre was a new contract and a constructive delivery. The contract with M* Andrew was for delivery iv November. It was admitted by the defendant that the option of taking de ivery in that month or in Jan nary, w.ts imported in the. absence of M'Andrew, and without his consent to it in any way; and by that change the plaintiffs lost all right as against M'Andrew. Supposing the defendant had f iled between the November and January, would not M'Andrew have replied to any claim, " You were iwund to take

in November, so far as I was concernel. and if youchose to inttrpase drhiy, y<u 111 n-t boar consnqifenfc loss " As to tb.3 cases quoted for the defond;uit, it iiiuat bj adnrtled that the goods were sp eific in many of th°m ; but, Lord Campbell clearly laid it down in Afdridr/ev. Jnhnion that, apart from specific iroods, assent might deploy the rmht of, a vendor to a lien such an assent as amounted t» an acceptance of the sub-vendee instead of the ori.;nia' vendee. Hea'hnitted freely that the rneiv endo'seinent of the undertaking was not sufficient to p^ pro ptrty in the_ Koods ; but when by that endorsement it hid been indicated to the defendant wit'i whom he was oclea 1 . and he recognised by his conversarjons the p'ainiiffs as those parties — when he entered info nn anansrement with them to ke-p the sleep two months longer, and to pay at the rate < f half a crown per head for wool, which would be wort'i enough 10 leave a handsome rental for the keeping — .ill this am Hinted to a full and alsslnte acceptance of the plaintiffs, and an acknowledgment by the defendant that he had in bU possession so »c 2 450 ew 'S that he would he ready to deliver in November or January. The Judge : Suppose the sheep had been destioyed ]

Mv Gillies said a question would then have arisen as between owner and depasturer. which was liable U bear the losg. As to the objection that these wi-tin-js did not constitute a hiu lins contract, beca is.' M' Andrew wa> at liberty to revoke the endorse ment order for delivny to the plaintiffs tlie answer wa 1 , that the defendant's, acts amount*! to a virtual delivery upon M* ndrew's order, and a retaking c f the sheep to keep for the plaintiff-i, upon the rentthdt m >st accrue from the terms of the wool money memorandum. When th.j ti ne for. taking delivery according to the otiirimd contract arrived, the plaintiffs were substituted for ftp An irew, ami he had thereafter nothing like an op ion. If the jury agreed with Mr Bar oa's estimate of lawyers— if tlie.y thou^nt that advised by him (Air Gillies) the pUddtifts had crouched, eat-'ike, waiting for prey let them by a"l rae.ms give an 11nhes.it itin? verdict for the iletandant. But for him'e f and f.r his client, he (Mr Gillies) repudiated such insinuations as ridiculous ; nnd heasseited that the defendant, a shrewd man of business, bail uot hten. and knew setter than t') be, trapped in any way. F 'om the very fi st, tbe defendant kmw that M' Andrew had sold a run and bheep to th. plaintiffs, and that he wanted sheep for the purpose of btockin:* that run. As to the accounts givrfu by 'IVclicmakei- acid the def>:iulant, uc to inerviews between them when the wool money memorandum was g yen, there was no possibility of reconciling them ; but, confirmed as Teschemaker was by Strode, there couid be 110 doubt that bis account was the correct one. The original agreeuient, of the defendant was to deliver to " tne order of" M'AmJiew; and as h* knew lhafc fie sheep weie wanted for the plaintiffs, there was presumptive evidence that he knew of the endorsement of the trier to them. A good deal had bi-et\ attempt d to be maiie. in cros< examination, of the two 3 ; ijn;uures ' James M'Audrew and C 0.," and '• James M' Andrew." At first, M 'Andrew was carrying on business in the name of a firm and it was us. d ; at fie tim > of the new contra -t (woo! -money men or indinn) he hid ceased business, was Superintendent of the Province, and used only his own n;ime. Tnere was the fuit-ier f»ct thnt the defendant never tod the plain tiilj- thaf he had not been paid by M'Andrew All the evidence warranted the i-onclusion, tha' tie defendant, kimwinir M'Andiew's 1.0-ition and circumstninces, had stood by an 1 allowed the plaintiff, to bo niided A> to the principle upon which damages were to be ass sscd, the jury on a fo"mer occ sion gave < am igcs to the amount of L-t 00'; od I, but that would noi 'epresent the loss to the plaintiffs up to the prpsen^ time. If a wrong doer in such a case were not to be held liah.e for profit or increase on tin; sheep, he mi^ht actually make more out "f his wrong doim* than wonl I pay the wh»!e coats of the action brought to force him to do r.ght If the defei dant had dcliv r d "2,450 ewes in Januaiy, 18GI, th--y would have lambod a! oit September ; and 45 per cent, o1o 1 lamb--, which ihe efi*nd.i- tn-imifted it would he safe for a lU'.holderto allow for, represented I,IOJ half ewes halt wt-th rs. -H-ltici}, aborting to 'he urne^ses Fenwick and Loggie, would now be wuith at least 17s aach, or L94o' 14s iv all. The 2,450 ewes w,ud have Limbed again la^t September, and a ewe with laml) at toot was now worth L 2 2s, or 1 5,14-0. Add to these *vms LGOd for two years' wool, and there wouid be a total of LG.OSI 11s the lowest pres -nt value of slieep nnd increa-e, if deiiverv had been made in January, 1801 But the plaintiifs certainly were mistikcnin their e-tiinate of the defendant's tenacity or they would have laid their damages nt a much higher sum than they did. However,' they laid them at only L 5 000 for hheep and in rease, aud L 3 16 9< for one year's w iol-money ; and to a \enlictfor L 5.306 9<, he cont'-hdel th-it ihe plaintiffs were undoubtedly entitled. He had perf ct t-on&lem'e that a jury of bus'ness m-n. would maintain a fair business transiicfcon, which,- on the part of tlie plaintiffs., this had been ; and thaf. like the r predecessors who had tried the ca-e, they wouid show tin if conviction that, in his attempts to -hield M Andrew in his difficulties, the defendant had made hiniielf liable for the losses of the phuiitifK The Jm'ge s;iid be whs pertain that neither hiinse'f or the jury c mid be Iresh ei>ough justly to conclude the case that evening, and at five minutes after .-ix o'clock, the Court adjourned to ten o'clock this morning.

TUEBDAY, 4TH NOVFMBEU.

The Judge, on taking his s*at, at ten o'clock, snid he was quite prepared to dirtct the jury on the point of law i ivolved ; but he luul been infottned that, whatever might now re the de fcion, ihe cusc would be carried into a higher court; and lie would, therefore, suzgest tli.t there should be an agreement, under the 163 rd Rule, to take avenlicfc for the plaintiffs, subject to a special case, leaving it to the jury to isses^ the riam.'ig' s. After a short consultation this was agreed to. His Monoi-, in summing up, said that the rase was an important one, because a good dat of prope;tv was involved, and by its result the chifacter of one of the parties must b« materially affected. There was a!«»gi-(!!it difficulty in applying the law to tbe focts of tue c-.ise; but h« was not now in such a difficulty as on the firmer occision, l-eeause there w.is a Court "f Appeal where, at- a nioder-te expense, his miatakes, if he marie any, couM Imiectified, while at the time ofthela-t (rial there was no app>al except the very costly one to the Pi ivy Council at home. It hul been agreed to take a verdict su> j-ct to a special ca-e; but ne >nubt go to some extent through tbe p'eadings and the evidence. After rending the declaration, pleadh.g", &c, His Honor said that it \vi uld be sesm that one of them in effect charged ihe defendant with having fraudulently and falsely, by tiick-vy and concealment, obtained the i-ig'ia ure of the defendant to the wool money memor.uulum. Soon after the opening of the ca&e for the defendant, he uu i^too 1 that the fraud was foima'ly g'ven up by the fiolendnnt's counsel. On the l.s? occasi m, the atteaipt to substantiate the faud compl.tey failed; and, therefore, he hoped nothi- g m >re would have been heard of it. But he reu-ietied that it was a/hered to throughout the defendant, s c;iae ; aiid it was for this reason m duly that he thought it n -cessary to go into ti e evilience, at )e&-t ao far m thi- point was concerned. Hut not only was the charge of fmud and trickery persist! d in; it was more than insinuated in tbe s| eech of the le-trned counsnl who summed up lor tbe defendant, that the plaintins' counsel had lent liirase'f to befooling the . etemlant. He c >uld only say thut he -h ul 1 extremely regret being a member ot thd profession, if it were the duty of any one of its members to lend himself to such transa •- tious as the one set up here ; for were su -li the case, iust !id of being a profe-sion to which any gentleman isii-jht be proud to belong, it would be one far less rcspec' able than t'-atofth- humblest tradesman in the conunuiiity H,- shnuld be very sorry indeed for the public to think thai it was pa fc'of the duty of a legal piactitioner to Jeud hiia>elf to anything dishonest or immoral, or inconsistent with the p!aine«t findnjoststraiuhrforwardinteKritvinadvi.singhis.'lieHt. It would i>e an unfortunate day for this country, 'if the members of the legal profe-sion, to any considerable amount, were to act u^on such a principle as that which he W. 13 c n-Jciniiiug; but he believed that they oul I not do ho ; and he trusted it would be unnecessary for him again to a hide to the subject. Divested ot the technicalities of the pleading < A the case made by the plaintiff, us it nppean'd to him, was this:— That they originally pmchased sheep from M'Andrew; but fat having got from him the uiuiei taking to deliver to the order of M 'Andrew, .signed by thedefeudaiit — liavi gj>otit endorsed to them, and assented toby the defendant — they virtually established such p ijrity as csiojipeil. or precluded, the defendant from afL'rwar. ls alleging that he dit not hold those she p us Ihe property of the plaintiffs The jury ha Ihe i>\l a great deal about the different forms ot uC'ion, contract anil tn.ver. But in thw Court nothing was known of distinctive forms of action. All that the pli ader had to do was to state distiuctly and logically the grounds on whii'h the plaintiff said that he w.ieiititltid to the relief prayed ; but still a title to that relief must be dearly established upon s.ome principle recognised by the E, 1 ifltsh law. The ground upm wine 1 the p'aintiifs rest, d their claim, as it appeared to him. was thit tin acts of the defendant virtually acknowledged the ritrht of property, the right of po-ist ssioi), in these sheep to be in he plaintiffs ; that by atorniinr to the undertaking, and signing the wool-muiiey mpmorandum, he recognised the ownership of tie sheep to be in the pi intiffs. This was very much like proof in the (-nglish action of trover -• but the plaintiffs were bound very oluarly to show that the constructive possession was in them, the autual possession having certainly remained in the defendant. It was not necessary to go at length into the cases cited on the previous day, with very great industry aud much ability, by Mr Barton, for the detenilant. It appeared to him (the Judge) that if \\T' h f b f", 2 4o I °. e T. e l ? "PecWoally appropri ited to tL ° f ff H Plaiutiffs, their title -would have been perfect in law-that everything would h ye' de'liLt 0 " 6 S ,c"-, c "-? !e them at a "y 5-Tto IS dehvery. But it seemed to him that a parly wns estopped only whera the goods were clearly sp/ciflc, or appropriated to the claimant. At the last mai, ne waa of opinion that these sheep weweuf-

ficiently app"opriated ; that they wore specific in so ftr a? beiosf sh^ep, and that they were appropriated by. the wool-money memorandum, for that in it the defendant acknowledged that he held them as bailee, or in trast for the plaintiffs. But on further consideration, it appeared to him that no reported case *ent the length of this case. Gillett v. Hill came nearest to it ; but there the defendant was held to be estopped from saying that he had not 15 sacks of flul >vr T after he had executed an order for five s c'<s ex twnty, and had filed the order unconitionali}'. But in that ca«e it appeared to him that the fl mr was not only specific i>uf distinct : while the sb ep were not selected, but were running in large flocks, and couM nut b come •specific uiitil there had been a selection to individualise them from the general flnckof the defendant. Tho property was never fully separated in accordance with the contract. The case put by the defendant's counsel well illustrated the difficulty of this matter. According to the contractor undertaking, the sheep were to be de'ivered free of disease. Suppose the whole flock had become scabbed, and had remained so, from November, 1880, to January, 1861 — how thr>n was selection to be made ? It would be perfectly clear that the defendant could not give sheep wording to the contract, for he would not have them to give. Suppose all his two to full mouthed ewes had been burned, exfept some 500 ; how was it to he determined whether the ewes remaining were the prcperty of (he plaintiffs, under the contract, or were not ? He did not now say that he was right ; but *fter veiy careful consideration of all the points and difficulties, he thought they preponderated against supposing that the k '4ooeweß wwespecifically appropriated ro the defendant. Until something was done specifically appropriating the shpep. or individualising them, ne thought that the plaintiffs' title was not clearly established; aud that su-h being the case, thedefjndant had not even constructively parted with possession, and consequently had not losthis lien for payment before de-ivery.Among.-tse^eralobjectionsurgedduringthetTiai was one that the undertaking (as it had been called) was not a negotiable instrument, like a biil of exchange or a hill of lading. But the case was on alltours with Dickson v Boville, which was a complete •tuthority. except in so far as regarded the defeat in tlie plaintiffs' tifle, of the failure to individualise the shpep. But for this, he thought the plaintiffs would have succeeded ; because the Lord Chancellor, in giving iv Ignieut in Mckson v. Boville, was obliged to decide ih favor of the plaintiff, although he was opposed to siu-h ' scrip onie s" asthatin the case, floatnig about the c< v itry, contrary (as he expressed it) to th« poiicy of the law. His Honor proceeded to read so much of the evidence of Tescheinaker and the defendant us at all bore upon the alleged fraudulently obtaining the defendant's s gnature to the wool-money memorandum. There w».s no doubt, he sud, great contradictions between them. But he thought it due to Tesch maker to say that there was nothing in hig tvlfe cc to shake Ms (the Judge's) belief, not only in Teschemaker's integrity but in his accuracy. He (the Judge) th m^ht hi* never saw a fairer, better, or, as it. appeared to him, a more accurate witness. He could not say the same altogether for the def'fidant. He did not attribute to the defendant — :t was not attributed by the plaintiffs*' <-ouusel— that there nns any wish to mislead, in the strict sense Of the term; but he could not aive to the defendant's testimony tbe same credit he gave to Tesehenrikprs. It w.is not accurate as compared with Ins evidence on the former trial ; it was not stvictly consistent even with itself. The alleged facts were so specifically detailed, and there had been so much time for consideration, that it was extremely difficult to understand how there could be sued <t conflict of evidence between gentlemen like the p'aii.tiffj and defendant. But so it was. Ihe jury must judjje on the mptter ; because it might go to the viryioot of the case, and upset the plaintiffs, even it they had tbe clearest rights in law, if they had by sucn trickery, contrivauce, or fraud, as was nllejred, obtained (he signature of the defendant tc the wool-money memorandum. A great (ieni hail been said about a latter which J'esche iiaker wrote after t « hit rview at Oamaru. and which it had been alleged was concocto I under lejral advice and for a purpose ; but it. sfe:ued to him (the Judge) that the 1. itjr was a natural rind fair one, ai;d free tiom any fevi leiiee of contrivance or concoction. In calling attention to the evidenca as to d.images, the juiywou'd b«vr in mind th.it thy must finJ for the plaint-fts, and thaf to decide the amount of dninag-s was almost the only thing they had to do. The counsel or the defendant bad suggested that the jury could not, in Bu<-h a case, as^s damages up to thjpres< nt time. He (the Ju-ige) thought the law w.vs not so ; but that it was a just and sound principle that the jury could assess damages according to the price of ihe go >Js at any time up to trial— a nile settled upon the principle that if the goods had not tieen withheld, the piuituiif mijrh bave s»UI them at. that price. Therefore, the j-tryj -try were at iberfy to t die th* evidence given by Fenuick and Logic as to the present value of ewes an-! lambs. That evidence war1 anted the calculation made by Mr Gillies. There would bo 1,102 lambs, representing 45 per cent. increase on the first year, and worth L 9 J6 ; L 606 for two years' wool-money ; and L 5.145 for 2 450 uwes, with lambs, dropped last Sep. timber, at their feet. This made a total greatly exceeding the amount claimed in the declaration, viz , L 5.000 on account of the sheep, and L 303 5s Iw one year's wool-money; but_tbep'aintin% could 'lot recover more than their claim, which was L 5.306 5-. It only remained to tell tbe jury again, that th'-y mu<t find a verdict for the plaintiffs, for such nn amount of damagps as they thought just, subject to a specal case. The jury retired at twelve o'c!o.;k, afteraskin?a few questions; and about half-past twelve, they re»u nd. J

Tie Foreman (Mr J. C. Campbell) said that some ( ft lie jurymen did not understand about the amount of damages he Jud^e : You cmnot exceed 1,5,003 for the sheep, and 1 300 odd for the wool-money ;up to that point you can go. Tne Foreman said th°re was a difference of opinion whrthi'r the amount found now would remain the tame in the Court of Appeal. The Jm'ge said that the jury had no right to cons der the Court of Appeal ; they had nothing to do with it, but must find damages accordiug to the f icts.

Tim Jury retired, and as they tyave no sign of returning at half-past one, but were audibly engaged in sharp dis .-usiion ; His Honor sent for tuetr. The Ju ige : Have you aaeed, gentlemen 1 Tbe Foreman : We cannot agree The Jmlse ; Not to the amount of damages ? Yea have nothing else to do.

The Foreman: But we cannot agree to the amount. A Jur*or : Will our verdict be bmdiner hereafter? The Judge sail it would to if the Court of Appeal decide 1 in favour of the plaintiffs. But really the evidence as to damages lay in a nutihell He scarcely expected the jury would have 1-ft the box, and when, they did, lie thought they could not be absent five m nutes.

A Juror : But, your Honor, we want to be sure Will our verdict be binding ? The Judge: Strictly speaking:, I ought not to answer thr- question ar. all, although I have already done so. But you ure soitijj beyond your duty if you consiiler anything beyond what is submitted to you. «>n the evidence, what is the amount of damage sustained ? That is in a nutshell.

A Juror : But we con»ider that it will influence the higher Court, oiv decision. Ihe J uljre : \ou h ive no j ight to consider that at all. You must find dam.iges on the evidence bffor« you. Th" consequences \ou hiive nothing to do ffitb. Agnin tbe jury entered their room, and at twentyfive minutes after three o'clock, they once more came into Court, having previously sent for his Honor. Tbe Foreman : Some of tbe jurors, your Honor, are -if om'nina th »t be ause we a>e directed to find a verdict tor the plaintiff-, we are obliged to fiud for a large amou it. We wat.t to know if we are t> go through tbe evidence, aud to find tor the plaiutids, with damiges, if any? The Judge :*I dnii'fc know what you mean. The Foreman : There are some of the jurors who are in favor of ihe deteudant, altogether. The Judge : You don't seem to understand the point, pfiiiiiemen. By agreement, you are to find for the plaintiffs. Assume th»it you have all come to an •igreeineut so to fhvl ; then, simply d termiue what are the d uua^'-s, Th« parties h *ye a-intd to try the case further ; thny only nsk you to find' t ie metsuro of damages. That mei^ure seems to me to be of the simplest pos-ihle character. You cannot go beyond the sum cl timed

The Foreman : It is simple enough, now, TheJu ge : Itistjia simple-t thnf p>s ible. I really coulil nor ponceivi- wbat you were about. Twenty or twen y Hve nuuutVmoi'e werew e re spent hy the jury in t eir room; and t leu— 'I'lie Po-eman said . We fi vi tor the plaintiff* * damages U,410 L 5.67.5 for the sheep, with L 735 merest. r

Mr GilWs ; Ab ut the wool money, your Honor? Ihe boe.ian; We live not considered; it We •ake the 2 450 sheep at 3D. a head, and give two years' interest .it 10 pc» cent. • The Judge: Hut' there is & charge for wool moiwy, ° Mr Howorth: They "hive found for int-rest instead. Jiie price was to hive been 27s 6i, wi-tnufc wool money ; and they gm- it by alJin* to the price tv TcpT ep antl "ffii" aiding the interest m» Judge; I don't underhand it myself; but there 8 fin end. The Foreman said that there was a matter whi >h nmny of th=i jury wished him to mention. They Knew that the Judge had no pwertoordor them to be paid more than, a guinea a day ; but still it was very hard not so much' their only getting a^uinea, but the time they were kept. ' In' Viot6iiir, jurors were only summoned for three d*ysj and lie would rather serve tl'ree days for nothing tiai be detained so long from bu&inpss for a ifuiuai a-day. . The Judge regretted that he ha I no power in the matter ; but he would- bnr the- representation ia mind, and if auy opportunity arose, he .would see wliat^could he dojte. - a The Foreman thanked His Honor, and th^ Court shortly before four o'wock, ' *

\Vi;U.N fcUAV, AOVEMBKII TH

His Hon r in i.xi ited ihtt, i i ao-or wuce with a silo* st on ot" tne Superintendent, l'i<! C mrt Avould noi s-it on M^uihty next, that day being to be !-et apart as a public holiday, iv commemoration of tue pjiucf of v\ ales having attained h r s uv»j rity.

Kiciiardson (^uper nfenent) v Patkrs.is. — Mr Howortu (fur the plain 1 iff lapp ied to hive this^iHcial jury case put at the i.Gvtuiu of the common juiy cases. He could not be iva iy, if the ea*e wis to be taken as the hu-t if the sjieoiaU.

Mr >)i.l es o!j«ot*M to thr<e repeated postpone ments Th f.iutot the aetlon pending hid tieen held up as a reason why the defendant was i. sellable for a political otlici. Jiut, he was i.i orfice now, as one of ihefcx-rutke. and tledecisioi ou^hf, in f.i ne-s, not to be deuyed. Tne .>upe intenclent had not mide any application for the postponement; and thty ha'f lifcn no real rea on for it urged. The Judge reiuarke t that the application was made upon personal u rounds. _ Mr (iiliies said the-e had been the most ample time for getting up tlie case It was gone into in the rroviucisl Council, and the evidence w<is printed ; it was investigated by Dr Knight, and the cvi. ence there wrs ajain printed in ia.it, the whole thinsr lia ( ht en so through y sifie 1, hat it was imjiossibl • fiere oatd be any rrusou for ( o-tponement, the leirned counsel having b en nffi iady concerned in th s« proeeedin<.s. Mr Huworth mvl there was not a word of fo'ce in what had been urged. Th- Superintendent was anxious, as a matter of pubic duij, that theci-e should be tried. Mr Gilne.-, tiuly s .dd that he Iloworth) was in om'tewheii the matter o/igiiiated True, too, that the defendiint was now a member tf the Executive Council : but the Com cil hut advwri, as a b ey, that the case should not oc wittidi-awn flic deftiidant could ioae ho hing by the p istpiuifc-nu-nt. It wis said that the .^upenntendent did ntn t ask for the po-rpon merit; but >iuce the Criminal Sittings commenctd, he had n.-t ha • an opportunity of seeing the .Sujieuiueudent. or else nu Honor would no i.ou'.t hwe tome duwnaiid made the appliCitiion him-elf. 'J.V obslaelu wa>, thaL Air Richmond, who whs to b. ive commcb d th c<is>- tor the p.aintill", had been appointed .Jud-.e of the Puivi. cc. The Judge dil notsa.' ho.v the deteudaut could he pn judiml by trie cue being put at the buttom ot the coiiimon iurv li-t.

Mr tiiliies -„itl it was a matfer of character for the defendant The action wa-. brought upou the aiivice of the lenrned counsel for the p amrilf. and in tlie original pit auin^ there was a distinct charge oi fr.iutl. The Judge : Theie is not now. Mr Gillies admitted that the pleadings had been amended.

The Jud-re said ;t; t wa? a pat ut fact that fie defi-n-dftnt was pn&sinfr for trial. The state ot the buMBess preveuteJ tlie case cominj; mi now ; and c did notse th.t prejudice could resuit from what was ask^i.

Mr Gill'es : There is the po.itical use that may be ma<'e of the eh u^e.

The Judtftj did not see that much of that could arise

Mr Gillies f-ai 1 i- \v;ts Cileulated that there wouliJ he «n election of JMijjeiiiitenaeut lief to the i.ne at which tiie ease wouiu cume on, i po-apon-d. Intli.it event, tliu pleauiiig> would Jjiivc tv b« mi a r j d ; and in na^it.ou, b. witness w.ts daiiy expected Irora the Dun fctun ott bubpieuu.

T^e Juujitisaid it was extremely unp'easant to force a cas«, w tea couiuel urged that h- waa not pivp.ued, and by puiiia» ir a- the i^t. N.i ocher i\ise wouM be di&pluc d, auJ the deteiidant uould no- sulr" r 51. Giihes would only ask iuriher, th.it if. because ol t-.e simuug, poatyonemeiit to the nixo - ittln^ tiecame utC^o.ny, the uetuKuaiit >houli b« allowed th eApense-. C«uscu uy aoce huj. t » tuis ap,iiicciihin. Tne Ju.ij;e ihou^hu tail Woiili be o i y re.ioouable ; and t.ie case w<is iheii orueied to ue p aced at de bottom >t ilu- ii->t.

DISPUTE AS TO DEPA3TUUIXG CATTLK.

VUhLiAiiß v. Anderson. -(Special .u>yj~ Mr Cillitm f'.r tuu piuiuuit; Air HoiVurih fo/ the defendant.

Mr Gillies said that this was a new cl ss of cu^e hare, but it mi. ho i.eco ne .i iinmei'oUa kiki imp >i tint ouej and alibou^u ihe am .unt involved w i«. uoi a laige onr, th^ pn.ii:ipte v.^a tle .-d,iue. The plumt If Pewr v» iliu.ns, in 1*34, k.-pr <m hytel at i'oit i hal-liiL-vs; aim the dt fen ciint. Jwhu Aii'ier* hi, wa^ he 8 rui.liuuer au.i sioo owner at U iK-bkin. T..e d claratioii v\as tnat m or previous tv 1854, ihe p iint.il itelivciett tv ihe ucf. i>a<i..t, a co.v and a. heit. r c.n}', to be uepa>turea upou hi- run. wuh i icrea.-o, up m the u&uul u-rnib i.i. depa.--tu ing ; nut, in fie , the cow was de.ue'e/ in itoi and t.ie cdf w.is dropped ahouthe lie^iauing «-t iB-*4. Theie weie o.her aU^.uious, ail tlie main out's bi-nu deni.-d b^ tiie d tamtam; ajul the su iu w-uxhb iv be re ow-re-i iOi- the non— de.iVvsi y ot thecuw heifer, and luC'tiue, wa- LIUO

Th s>ii')iL ca»u tor ihe plain-iff wa->, >Ii .t thedefendauc #<ivt; a e•« ipt ; i.i io;>i, iui tuu c<Jiv, mating ih ,t sue haa beun t.K'ii to pu&ture for an in eti.i.ie perio i at the uhual eh iru« ; uud rhiit iv 1854, he <iitinctiy aiiinuted me txi.»t<-uoc nf the calf, i' ere were de.nin^s bt-uveeii ih<: pl.,intttt° and the dutc.daiit, with a aetilciaeut a out. yearly ; aud when th= last V.&* vi.do, ut the cud of 18jj. tiwro w«»<i four oji-a ttumUtod to ho on ihe ru i. Ssub-tqjenlly. the plaimiff prcsentel an account to tii^ deleiniant, who, L.&tead of (.ajiug it, eaid, "th' lt-t it go against ihe n-ut tor the cattle.' Th<3 lilaimiff i.ad dupaotutid with Ale-sra Te die maker, Ptnei-B, Lou^uet, V\ illiuiu (riay, .Io .n v\i sou. and others; aud irom ihi» • xperieuut; hesuiiei th.it ihu u.-uai fh rtie for uep.tatuiiu. w.u- 10-. a he vi foi ail uve: six months old ■ and tha tne ilu y of tlie ruii-hOK.er wao tv see thai the .--tuck waa braimed, an i bttii ordinary caw given to them He Miji.'lied the deienuant w.th a b.and. lit 1&57, he was told that the lour cow* had each a calf, uud he a-^ked tiie defendant it th* y had in cii bniiuel. The uefi*n fant s.ud that thty bad not, t-r t-ie hran I was too large uutii the caivia {;rew bigger. The defendant d>ii, iv 18/5 or 1850 \i ye nolioe to t!>e pain iff t> lem-vc tin; catt c, and the p uimitl' twice iv id ,i ran^euieuU for rtcci in^ thtm; but they weie notdenvereil to either oi the appointees, and me def. nddiit hud n vtjr given any iv sou for reusing to de iver in February, l&o'U, •when f irniui v nuinainled.

M>- 0. VV. Teach- make said that formerly the usual d< pa.-tus age charge was iUs a heu.fl ; but now. ruiids <<t ti e iticita-e was more u^u il, and was. ahvavs more .benefici-ti to the ruu holier. — By VlrU-wort 11 : titc«iuduly thought that if lie t -ok charge of cat'l.- lie was bound to brmiU them, and thf liicresise ; but ntn >t t-t biertk them in, uii : e.-ss b} special a. reeiuent He had lont caitie i.ut upon li;s run, but. had neve paid Joi ai.y. if cuttie di>d lr..tn "tutu,' they cou.d often not tie found. Ha cou.'d not say who w.s responsible, the owner or tin.- swck-h-ililer, iv case catt.se died froia tu,u. He had, at pio-eut a di-pute wi'h the plaintiff as to three tatile lost, aud supposed to have tried from tutu.

Mr Unworth : Suppo^ a heifer to be put upon a run in 1852, wli.it w-iu-il lie i lie iiu-rease up to 1857 1 Mr Gnhts : You must put it a cow, tor a cow was deliver, d.

Air Howoi-ib : Well, then. suopo»e her barren, what would lie (A icar of laiitrhte 1 )

r^v< nil qu> .it:o s w re put to tlie witness as to in creai-e ; bui he aishere'i to a s atemeut tna'le timing histx minaticn in • hl«-f, that four cows and foul iienei jitiv a, fruin 1857, raisin be ceitdiuly taken as iiici eased by al> ut 30 up to th • p efatiit time. Fr.u.k A Ortii'ti ban hiwos.ii uiiholder a il «'eale in cutle 'Ihe u&ual char.:*- for depasturing was 10s a likiJ ; the ruiiliof<ier tikitijc full yh .rge oi th ■ catt c — attending to them prop, r.y as if they were his own If mar bug . Le w;is su^p sett to ,<-ee that tli^y did uoi get iuio it ; oi-, if chey di 1. iluring winter, to bee that tliey wen- jr. t out at once. Tl'i- ruunoidcr had a.s-o to c v ami bran i the young stock; and t. re-d* li^'-r .he.ii in hi- sfiick-yuul. Four cwwa a- d i'onv he:f< r <^ilv>-». froui 1867 to th<~ prete t time, wo.il i iucie he h\ 3tt und i tavuntliif ciicuuistaiiees; an a los-s of tive or six hnul, by d ath au>l oihei Cdsxalties, w«-u!ii bn a f.iii- all-iwa.ee. Mix cattie (not inoludiiifr ca ves under bix monrlis ol ) wen- now worth fi<.m 19 to Lll a licad. li- ISG) tliey were woith Lb' 10s to f.« — By Mi HdWurili: tie knew there was l.u*h from lln- Ilea-ib to i iiiiPtiin ant away to thts I'hmstaif it n i^l.'J be *en jnilca h n by six or eighf mi <±f wi !e Ottttle that }.ot info the hu-h era y g>>i >.ikl Thf owiifv of ■ ri.n <'1> se to bn«.h sliou'd p event c ttlf pet'ing i: to il ■>_> di)iiii! hi- d i-j— y ii.>viug sto'-k nic» t" 1 <ik afie 'hem it h- ci.v ii not ke. pth m in tha' w.i\, he <h v1 1 not put th>'ui upon nis ruii. It -tonlil bVra'iiir t^nri or a tv hoi fi-r io K«'e|) < j-tnukn.jiu in tile after and k cp s.fe a sin^l ciw put upon tii<' uin on Km. 8 The .lu'lf hi t i.a'l tin evidence had notldtij. tod wi h the i u< w nob Wi~ »t t\> uiv to civ :■ Tii- d- fcimai.t' i n vi. lit lav- Ue i-itfi v t io lua-ii .-. in., hi .di) t all' ct liis 1-g I iimuiity Wm. Kaiid II s- .ten tint whe ■ Le went to ink' del'V. iy, on io c lioin He clef imiiut. Hie catt'e w iv i>oi n-aiiy ; u->u suh equ nty he was co pjliut to unc iio i i tii, t In- ci'ulil not teceive them. Mr Hnivt.itli .-uimii te.i that tb re mu-t iw a n >nBUit in Dii-.u on (Joi tr.ias, it wab lai-1 clmwi tnat ii was noi he duy of aI) ilee or wyi'-te tf cutle ti) re it- Iner tl-tm ; t .»t h v\a> not ai swi-mbli- f'-r a! y rafcuit t) ih»t di<l ntn t niiectly r ;-ul tiora hii owi m-trecr. Lord l-llei.b. rou.n "h.nl dra»i thi- di.s tinet'cn betw vu tin stjiMtr hi.il the case of an i viIve^j er or iiv r -^lali c keeper ht- Ju.'jti ssiKl tlr.it t-u.-h ;in artrunipnt was wh'illv i ai'picabie to the }le.tdin^. which wee that tlie cau 1 c w< re on th*- run men-'y on su.f. ran %>, and liaU neter leen It pally di list-red <o me i.et « da .t.

Mr howorih suited the <tu=e fur the «i« fendnnt. which (acco ding to the evjdei &• of the defendant* ».» and ai-nth r wiwe^s), nasthar aftii the affair with Bandall, tbr plaint iff iippointt-d one Kiny. who liu>i loeil. to m:iivt heeattie They weie swuriit for. tbr wicks, and not'ee wns i>ive» t-» Kit.g io come and icr>ivc. He came, but refused to Utke tho c that had been found, saying that he would only receive when tlie dc-ft-mla-it liad iotuid them till *nd had j.iven notire of a day for delivery. Afterwards, he refused to i eceivi at all, uul* t* ihe cattU were sent to his own \'ha-, s:xor seven njilen iff. Poiti<m of ihe cattle fteie pin in, ii; tw «r thjee'ot". nimvthim oik'i ; but so much buUi being uear, aud the run having been at

'hi- time cj v r'&l jut > luid.lreiU, so tint m.im citt'e o.nne up n it, tha deVn.la t's aj;e.its h having gone soa'ii ti> a new s'u-ep my) coulil only uc li'il.l of Hip cuttle after great t oufoie, ami could no k ep iluniin tliu stuckjar I, out ot which, buiu^ wil.l. the; broke. Ir wis albo set iui that the urig u<i> driantreoj 'lit w.is onl th it the attendant slumhl ii< fee best he coud, wi'h'tit i eiug nally responsible; and ir was *t&te > th it there wa-. plenty ot'tiitu on ih ru i, ami that cattle be) mging to t c defendant were not unfreqiientlv loun ■ Jj.ul. The .Iv iy;i j b'ii'flj MiniiU'd np, leaving tho jury to deciile whi-thc-r the >'c einlaut Ind used o:\liinuy an reasonable ca c as hailes of the cattie ; and if not, th amount of loss sustained by the piaincitf by reason ol uon-denvry. Veiilict for th'- plaintiff: dninactfs, T.'2OS. Tlie Court ro- i* I'n'f m-^ «■• •■ ' -k.