Judicial.

Otago Witness, Issue 1418, 25 January 1879, Page 12

Judicial.

« SUPREME COURT. Thursday, 16th January. (Before his Honor Mr Justice Williams and a Common Jury.) MACDONALD V. PROCTOR. Claim LIOOO, as damages for the refusal by the defendant to carry out an agreement for the leasing of a coal-pit at Papakaio. Special damages were also claimed. Mr Denniston appeared for tho plaintiff ; aud Mr HaggiLt, with him Mr Hislop, for the defence. The hearing of this case was resumed at 1 10 a,m., and the question of what should con. atitute the measure of damages, which was 1 raised upon the question what the plaintiff ■ considered, from his knowledge as a practical : miner, would have been a fair and probable 1 profit to have made in working the mine, was 1 argued at great length. ', His Honor, after argument, said: I think • tbe question may be admissible to show what j the value of the mine was. T should be in- , clined to admit it. The most important quea- ■ tion is whether the plaintiff is entitled to : recover any damages for the loss of his bargain. I think perhaps it would be as well to continue ) the caße and take evidence, it being understood • that leave will be reserved for either party to I move according as I may hereafter direct the i Jury. I think that is the best course. 3 Mr Haggitt : It is for your Honor to decide, 3 Ido not consent to anything,,

His Honor : The question will arise hereaf te as a matter of direction, and it wiH bo for counsel to move upon the ground of misdirection or non- direction. The Plaintiff then deposed that, as a practical miner acquainted with the dibtrict, he_ could say that at the time he went to Papakaio the coal-pit, as then worked, would be worth LI a day, allowing for all expenses— providing that the trade was pushed. Mr Haggitt moved for a nonsuit on the following grounds : (1) That there was no consideration whatever to support the agreement lef erred to in the declaration; (2) that the agreement was a mere revocable license, and that any lease granted under it would be revocable; (3) that there was a blank in the agreement, the effect of which was that there was no agreement by the plaintiff to comply with the conditions set forth; and (4) that there was no evidence of the refusal of the defendant to execute the lease, and that he 1 was not bound to execute the lease until a peiiod which bad not yet arrived, as, according to the agreement, the lease and counterpart were to be executed within twelve months. His Honor declined to nonsuit the plaintiff, and ruled upon the points raised as follows :—: — I think the true construction of the agreement must be that the period of 12 months is fixed as the limit of time during which either party can call upon the other to execute the lease. As for the other point, that there is no consideration, I think there v a sufficient consideration, and that the words, "and that the following covenants on the part of the said " must be construed to mean "on the part of the said John Macdonald." I think I ought to refuse the nonsuit. Nonsuit refused, and leave reserved for the defendant to move for a new trial. Mr Haggitt opened the case for the defence, which was that the agreement was a conditional one; that this fact was clearly within the knowledge of all parties concerned; that the conditional agreement was made at the request of the plaintiff ; that it was one which could not materially benefit the defendant ; and that the condition of the agreement— the surrender of the lease of the mine— could not be obtained. The Court adjourned at 5 p.m., and the hearing of the case will be resumed this (Fri day) morning. Feidat, 17th Jvnuaby (Before his Honor Mr Justice Williams.) MACDONALD V. PBOOTOB. This case was continued from the previous day. For the defence the witnesses called and examined were the defendant, Thomas Proctor, and Joseph Smith, the present lessee of the pit. The issues to be put to the Jury were then agreed upon ; Mr Haggitt addressed the Jury, : and Mr Denniston replied. ' His Honor then summed up. 1 The Jury upon returning, Bhortly after 5 i o'clock, found upon the issues put before them i as follows :— Did the defendant agree with ' plaintiff to grant the lease as requested ?— Yes. ; Did the defendant refuse to perform and cairy . out the said agreement ?— No. If so, what i damages is plaintiff entitled to reoovei? — LSO. ' Mr Denniston said there evidently had been i some misunderstanding upon the second issue. His Honor agreed, Mr DenniHton consent- i ing, that this should be put as an independent issue, and the Jury retired to reconsider tho second and the new issue. When they returned they replied " Yes " to both issues. Saturday, 18th January. J (Before his Honor Mr Justice Williams and a \ Common Jury.) j OREDITOKS' TRUSTEES IN THE BANKRUPT i ESTATE OP JAMES BLACK V. I. N. WATT AND 1 OTHERS. 1 This was an action brought by Messrs Leary, j Marshall, and Scobie, trustees in the bankrupt estate of James Black, to recover damages j from Isaac Newton Watt, John Boyd, and < Robert Ntill, the defendants, for having, as i alleged, wrongfully caused the plaintiff's estate < to be sold at a great sacrifice. Mr Ho worth, with whom was Mr Smith, j appeared for the plaintiffs ; Mr Denniston for ] the defendants Neill and Boyd j and Mr Watt appeared in person. ] The defendants denied all the material alle- ( gations. , Mr (Smith stated the case for the plaintiffs. ■ The learned counsel then proceeded to call ( evidence to substantiate his case. Mr I. N. Watt was the first witness called for the plaintiffs, and his examination in chief . had concluded when the Court rose. ; Tuesday, 21st January. < The case for the plaintiffs was proceeded \ with from the previous day. The first witness examined was ; William Pine, who purchased the goods in the estate of Black from Brown, the bailiff. His version of the affair was that at Balclutha, ' between 1 and 2 o'clock on the day of sale, Brown, who had previously sold him a horse in the same estate, asked him if he could raise ■ LllO. Witness said he thought he could ' manage that j and Brown then said he would ] sell witness all the goods mentioned upon a ' certain paper for that sum. Brown also said he was bound to sell every thinsf before a certain hour, as he had an order to do so from the Sheriff and Neill and Boyd. Witness therefore purchased. Mr Denniston then opened the case for the defence. Mr Watt, one of the defendants, gave evidence from telegrams corroborative of hia previous evidence. W. D. Stewart was examined as to an interview with Mr Watt, as sheriff, on the 12 eh of July, in which he stated there was no mention of Brown being engaged as special bailiff, and at which the indemnity was given. Robert Neill gave evidence as to meeting Brown in Dunedin after the Bale. Their firm knew nothing whatever of the sale at Balclutha, and did not know such a thing was contemplated. In fact they telegraphed and wrote to Scobie Bros, and Garden and Young, at Clinton, to attend the sale at Waipahi on their behalf. John Boyd waß also examined at some length as to the agreement come to at the interview with Mr Watt on the 12th, aud aa to the firm's entire want of knowledge that the sale was intended to take place at Balclutha. His Honor then began to Bum up. He said the first thing the Jury had to satisfy their minds about was whether a wrong had been done and the estate injured by the sale. If a wrong had been done, the Sheriff was responsible, and they would have to find that he should pay the damages occasioned by such wrong. Then the Jury had also to determine whether Neill and Boyd were connected in the wrong which had been done, and if they so determined, then all the defendants were jointly and severally liable to the plaintiff". The question of how far the Sheriff could recover against Neill and Boyd on account of the indemnity did not arise. They had not to determine whether the indemnity was a complete protection. If a wrong had been done through Brown's action the Sheriff was responsible ; whether Neill and \ Boyd were 90 also had to bo determined by

them. The plaintiffs had nothing whatever to do with the indemnity. They had thus first to determine whether the conduct of Brown in the way he conducted the sale had been negligent or improper. That was the first question, and he apprehended they would have little difficulty in determining how far a wrong had been done in conducting a sale of property; of such value in such a wny. The Sheriff and his officers had a great latitude in such matters, but they were bound t) use reasonable care, in disposing of the debtor's propeity, that no wrong should be done to his interests ; and if reasonable care was not exercised, then the Sheriff was responsible for the acts of his officer. Then they had to determine how far Neill and Boyd were liable for damages resulting from negligence displayed by Brown. In ordinary cases, when an execution creditor gives a writ to the sheriff, he does not conutitute the latter an agent, nor is such creditor liable for wrongs done by the sheriff ; not even if, as in the present case, the creditor became the channel by which the warrant was conveyed to the officer. But if an execution creditor chose not to allow the sale to proceed in ordinary course— if they gave instructions in any way as to how the sale was to be carried out— then he was responsible to the parties injured by such sale, as well as the sheriff. The question for the Jury was, how far the acts of Neill and Boyd, or of their solicitors, in what had taken place between them and the Sheriff, or between them and Brown, had had the effect of making Brown their representative for the purpose of selling the property. If they thought that what had taken place had the effect of constituting Brown the representative of Neill and Boyd for the purpose of eanying out the sale, then, if there were negligence on the part of Brown, Neill and Boyd would become liable. But in ordinary cases the officer was not considered the agent of the executing creditor ; it was only when the creditor interfered, and gave directions as to the sale, or in any way constituted the officer hia agent, that he was liable. Therefore it was for their consideration whether Brown was constituted agent for Neill and Boyd for the purpose of the Hale, and whether Neill and Boyd were thus to be held responsible for his_ acts. His Honor then went on to quote from his notes of the evidence as to what had taken place at the interview between the Sheriff and Neill and Boyd, with their solicitors, on the 12th July, and read copies of the telegrams which had passed between Brown, at Balclutha, and Neil) and Boyd aud the Sheriff, in Dunedin. After going through the evidence further, his Honor said if the Jury were of opinion negligence had been shown, then the plaintiffs were entitled to be compensated for the injury that negligence had done to the estate. They had not to consider any injury done to Black himself by reason of his being forced to become a bankrupt j they had to consider what damage the estate had been put to by the wrongful acts of the Sheriff's officer. The amounts claimed as damages were as follow :— LSOO paid by the trustees to get back the estate from the buyer to whom it had been sold ; Ll5O for necessary expenses in connection wich this compromise ; L2OO for stock taken backless than was seized ; and L2OO or L 250, for costs of tbe c\se brought by the trustees against the buyer (Dunne) to recover the property. The Jury retired to consider their verdict at 9 p.m. Mr Denniston handed in a list of directions which he asked ft r with a view of ulterior proceedings, and his Honor took a copy of them. The Jury returned at a quarter-past 10 to ask his Honor's opinion upon certain points in dispute, the Foreman stating that he was sorry to trouble his Honor, but he saw by one or two of the jurymen they wero going to have some ' trouble to come to a decision. He asked whether the Jury could find damages to an amount beyond the total of the sums mentioned by his Honor in the summing up. His Honor said of course the plaintiffs might ask for a nominal sum of a large amount as damages, but he thought the Jury should award no more than was actually proved and claimed by the evidence. The Foreman then asked whether, if _ they found for a sum in advance of that so claimed, Black would derive any benefit from it. His Honor said any damage Black might have sustained through being forced to become bankrupt should not enter into the consideration of the Jury. The only possible way in which Black would reap benefit from a verdict for a large amount would be if a surplus remained after paying his creditors. The Jury then retired, and om re-entering at 11.25 found replies as follow to _ the material issues placed before them :—": — " Did the defendant, Isaac Newton Watt, wrongfully, unnecessarily, and injuriously take possession, under the said fieri facias, of goods easily separable and divisible of far greater value than were needed to satisfy the said writ?— Yes. Did the defendant, Isaac Newton Watt, at the express request of the defendants— William Godfrey Neill, John Boyd, and Robert Neill— and by their procurement, negligently and injuriously conduct himself in and about the sale of the said property of the said James Black, and sell far more of such property than was necessary for the purposes of the said writ ; and by their procurement wrongfully and wilfully omit to give any notice of the intended sale, whereby the said property of the said James Black was unnecessarily sacrificed ? — Yes. Have the plaintiffs, as creditors' trustees of the bankrupt estate of the said James Black, sustained loss ai>d damage by reason of the acts aforesaid ?— Yes. What amount of damages are the plaintiffs entitled to recover, and (if any) against which of the defendants?— LlOlO, and against the whole of the defendants. " The Foreman wished to add that in the Jury's opinion the conduct of Brown, the sheriff's officer, had been open to severe censure; in fact they thought he had acted rashly in the matter.