AN IMPORTANT SHEEP CASE.

Pahiatua Herald, Volume XIII, Issue 3114, 7 September 1908, Page 6

AN IMPORTANT SHEEP CASE.

Hi© fallowing case was recently heard before Mr Riddell, S.M., at Dannevirke, for a report of which we are indebted to the Advocate: J. McCardle and another (Mr Lloyd) v. W. Pass and another (Mr Fitzlierbert), claim £2OO. The case of Pass v. McCardle was taken in conjunction, defendant being deemed to counter-olaim for the amount £5 13s. J. McCardle, stockholder, deposed that he bought 1619 sheep in Dannevirke on the 7th March, 1908. R. McKenzie and himself wore in partnership only in this particular deal. Bought different lots from the various stock firms. Witness bought the whole lot. McKenzie counted the big sheep and witness counted the lambs. There was a difference of two sheep, which were credited to the vendor. Bought the sheep to sell again at Palmerston. Saw Pass in the yards, and told him he wanted someone to drive the sheep to Palmerston, and asked him if lie knew of anyone who oould help him. Pass pointed out another young man, who said he was not acquainted with the road. The big sheep were put in a paddock adjoining the saleyards, and the lambs were left in the yard. Employed the drovers, who were present when the sheep were counted. Signed the auction firm's books for the sheep: last saw them in the yards. Told the drovers that they need not hurry the sheep, but take them carefully and give them plenty of time. The sheep were taken to Palmerston, a distance of 46 miles, and when delivered were 247 sheep short. Drove around Ballance and over the range road, but saw no sheep. Afterwards met Olliver in Dannevirke, and asked him how the sheep came to be missing. Olliver said that the young fellow with him was lie good at ail, and he (Olliver) had to do all the work. Had given Olliver £5 to pay road expenses and paddocking. Defendants were to be paid 17s Cd per day, and allowed one day for the return journey. There were 46 lambs and 211 grown sheep lost. The road was difficult in one place, and the sheep would need careful watching. To lose 20 sheep out of a similar meb would be very unusual. One or two sheep may be dropped. O'lliver said he had not oounted the sheep on the road. It was usual to count sheep on the road every day. Had had a good many years' experience driving. Had they counted the sheep, they could perhaps have told on what day they were lest and where.

By Mr Fitzln rbert: Made arrangements with Pass before McKenzie employed Olliver. Made no arrangement as to wages. Inst told them that he wanted the sheep taken to Palmerston. They could have plenty of time, so long as the sheep arrived in good condition. When tin* men were employed the sheep had not been counted. They were near witness when they were counted, but should have counted them in the morning before they left. Mentioned to defendants certain night paddocks, but if the sheep wore not going noli they "ere to make arrangements earlier in the day. The defendants occupied the paddocks mentioned. Had made a. thorough search. Found several slu-op. but could net swear to them. W'ns aware that am thor mob of sheep had reached Palmerston over the same road, and were sold at Palmerston a week later. Examined this mob. Did not have an idea that the sheep had been stolen. Instructed the police to '■e if they could find the sheep. I bought the sheep had been dropped, and perhaps picked up afterwards. Advertised lor the sheep in the W ood. ville piper, and Mr McKenzie had •searched h r them. The counting ol sheep did not knock them about in small molis. It wa.s very extraordinary that 2nd sheep had been lost on the road. Had formed a theory as to ■how the sheep had been lost. Defendants had bean guilty ol negligence, inasmuch as they did not count the sheep every morning. l*o Mr Lloyd : Iho average values el the sheep had been \n rk.-d out during lunch h nr. and the total cost was Cl 12 ;) s ]() ( | : ;1 f the price paid lor thrin at Dannevirke. If the sheep "ere put into an accommodation puldock the on-us of watching the sheep rested on the drovers, not on the owner of the sheep nor the owner rf the paddock. Kenneth McKenzie, brother of i no oi the plaintiffs, drover and dealer, deposed lie was engaged to receive sheep from the drovers. Met them aomit a mile tr.nm the Palmerston Kaleyards. Had had the numbers previously supplied to him by his brother. The drivers also told him the numheir they should have. Counted the sheep, and there were LTV) 2. r i7 short. Lld the drovers to count them, hut Olliver said In' would take, witness' count. The defendants did not appear to express surprise that the sheep were not all there, nor did they offer to go and look for them. .'.s A ed tliwin to look for .sheep, lint they "(‘lit init-o Palmerston, mil staved the night, returning next day. Ah nit five sheep would be a fair number to lose on the road through knock, ing-up. Had had a number of years ol droving. Had the sheep been counted then, t.br drovers would ihave known on what day and where they were lost.

Andrew Peters, buyer for the W.M.E. Co., deposed to 20 years’ experience droving stock. In a drive of 40 or 50 miles five per 1000 would be a fig loss. Would want to know where they went to. To Mr Fitzherbert: 250 sheep lost out of a mob of 1600 was extraordinary, and would point to gross neglect. If they had been dropped, it would be reasonable to suppose they could be found on a search being made. Would expect to find traces of such a large number. To Mr Lloyd : It was possible that with a large number of sheep coming along afterwards they would be absorbed in batches, but not in one lot. To tire Bench: The counting of sheep, if properly done, did not injure them. If the fences were bad in accommodation paddocks he would count them night and morning. If the fences were good would count them occasionally. If any were lost it was the custom to make a note of

Thomas James McDermott, with 20 years’ droving experience, deposed that he counted his droves every day. The roads were good between Dannevirke and Wcodville. On a five days’ drove five sheep would be a large number to lose. To Mi- Fitzherbert: Knew the accommodation pacjdocks mentioned. They were in good condition six or seven months ago. If the sheep were lost on the road, and witness picked them up, would leave them in the first yard that he came to, and make a note of it, so that the loser would be able to recover them. The accommodation paddocks were frequently used by other die vers, they being the usual stopping places. If the sheep were dropped in small numbers and ran into other mobs it would be hard to notice them. Drovers'did not usually know the brands and earmarks of sheep they were droving.

Mr Fitzherbert said his clients would not dispute the number of sheep handed over to them. James MeCardle, plaintiff, recalled by the Bench, stated that the sheep were handed ever to the defendants «n the afternoon of the sale. This concluded the evidence for the plaintiff. Mr Fitzherbert asked for a nonsuit e.i the ground that there was no evidence of an agreement between Olliver and plaintiffs. Mc-Cardle had engaged Pass and McKenzie employed Olliver. Mr Lloyd submitted that Olliver had filed a claim against MeCardle, which clearly showed that he was employed .

The Bench intimated that he could not consider the non-suit point, and aould hear the evidence.

James Olliver. defendant, deposed that McKenzie employed him to drove some sheep. AY as present when part of the mob were counted, but not the ether part. McKenzie said he thought the mob would bo about 1400. McKenzie told witness what stages to take. Got to the Victoria paddock, which had a bad ijato, and made counting impossible. Did not count them. This stage was about 15 miles. The next day went to the brewery paddock, a stage of four or five miles. Was certain no sheep had been lost so far. Then they went 9 or 10 miles to Vile's paddock. It was just dark when they got there. In the morning witness thought that the mob looked smaller. It was very wit, and witness did not 'top to make a count, as they had to push ou to deliver the sheep the next day in time for the sale, and witness thought lie may have been mistaken. Only passed cue large mob coming towards Dannevirke. TlieJb drove into a side lane to alh w witness’ mob to pass. II the sheep were lost tliey were lost at Vile's paddock. Thought that they had been stolen. -McKenzie had asked them to go back and look for the sheep, but as it was too late be said they would go ir.t. Palmerston and start early next morning to look for them. Made enquiries next morning. Met all the milk carts, and none of them had seen any sheep. Had had 80 years' experience and had never lost any sheep before. To Mr Lloyd: Did not say anything bo plaintiffs as to his suspicions that the sheep were lost from Vile's paddock. Mentioned vo Vile next day on the return journey that they had lost •sheep, but did not say where lie thought they were lost. Were allowed until Tuesday to deliver the sheep. Was not aware that weekly sales wore held at Palmerston. Did not remember tolling MeCardle that Pass was useless as a drover. He was a good mail. Wrote plaintiffs saying that he thought it was a matter for the police, as they had searched thoroughly, and could find no traces of any sheep. W illiam Pass, drover, deposed that MeCardle engaged him to drove sheep to Pa liners ton. Ollivcr's evidence as to the stages was correct. MrCardie had told him at the saleyards that Olliver had charge of the mob. The sheep travelled well, and they hud no trouble at all. Therefore they did not count the sheep. It would be almost impossible to count the sheep on the road, ll they had done so. and found a .shortage they could only have noted it, and gone on, not being able to leave the mob. Was of opinion that the sheep were stolen. Only

passed one mob of sheep. On the day the search was made met several small mobs. Looked through them, and questioned the drovers. Did not notice any of the lost sheep in these mobs. To Mr Lloyd: Had a fair idea of the earmarks on the mob. If 250 bad been in one of these other mobs would have recognised them. It took McKenzie about 1 1 hours to count tb© sheep at Palmerston. There were three of them at it. Had had four years’ droving experience. Could have counted the sh op at Vile’s paddock or the brewery paddock without much trouble. Henry Monteith, stockdeaier, deposed that if the sheep had been lost by the plaintins some traces of them would certaimy have immediately been discovered. His own opinion was that the sheep must have been stolen at one of the accommodation paddocks. W itb regard to counting mobs, be certainly liked to be correct, and counted. If tlie -beep travelled well and witness was certain that lie bad lost none lie would not make a count, if any sheep bad been lest and he could get otiier men to mind the mob lie would go hack and look for the sheep. If he thought that sheep had been lost be would certainly make a count. It would be difficult for the two defendants to count suck a large mob on the road. James Huntley also gave ev.deuce as to droving customs. Mr Fitzherbert then addressed the Court, and sttaed tha: negligence bad not been proved. The Bench said that the fact of defendants having admitted that the number of sheep had been delivered to them, and there being 257 short when they arrived at their destination. proved, in itself, negligence. What the defendants had to prove was that all reasonable care had been taken and exercised, 3iid that the sheep had not been lost by negligence. Mr Fitzherbert. continuing, stated that bis clients bad proved to the liilt that there was no negligence. and that they bad exercised all due care. Mr Lloyd submitted that the tact that the sheep had not been counted proved negligence. There was no evidence that the sheep had been stolen. A gate of one of the paddocks may have been left open, or a hole in a fence bad not been blocked, and tlie sheep bad escaped and had been absorbed in a large mob travelling to a different part of tlie island altogether, and that their presence in this mob may not be discovered for weeks. Judgment was reserved on the claim and counter-claim.