CLAIM AGAINST BAILIFF

Sun (Auckland), Volume III, Issue 672, 25 May 1929, Page 5

CLAIM AGAINST BAILIFF

SEIZURE OF CATTLE CASE STARTED TOO LATE (from Our Own Correspondent) WHANGAREI, Friday. Because the action had not been brought within the statutory period a claim by Mereana Whaterau against Michael Farrell, the bailiff of the Magistrate s Court at Kawakawa, for damages for alleged wrongful seizure of her dairy herd, was dismissed by Mr. J. H. Luxford, S.M., in a reserved judgment given today. The judgment stated that a summons was issued out of the Magistrate s Court at Whangarei on June 19, 1928, at the suit of one Ralls against Laura Wheterau, of Towai, widow. In accordance with the custom of the Court the summons was forwarded by registered letter. The Plaintiff called at the Towai Post Office, and was handed the registered letter containing the summons. LETTER FOR HUSBAND The letter was addressed, "Mrs. Laura Whaterau, Towai.” Mrs. Whaterau told the postmistress that her name Mas not “Laura,” but as her husband’s name was “Tatura,” the letter was probably meant for her. Bhe took the letter, thinking it was a communication from the Maori Land Board, but told the postmistress she would bring it back next da}*, if it was not for her. On arrival at her home she opened the letter, and found the summons inside, but knew that it was not for her. Accordingly the next day she took the summons and the envelope to the postmistress, who advised her to return them to the solicitors for the plaintiff. Thereupon she enclosed the-m in a new envelope, together with a letter explaining the position, and forwarded the package by registered post to the solicitors. They apparently by an oversight omitted to withdraw *tlie summons, but on July 24, 1928, applied for and obtained judgment by default against “Laura Whaterau, of Towai, widow.” DISTRESS WARRANT OBTAINED. On August 30, 1928, the solicitors made application for, and obtained, a warrant to the present defendant to levy the sum of £25 17s 4d by distress and sale of the goods and chattels belonging to Laura Whaterau. Acting under the authority of the warrant, the defendant, on November 12, 1928, seized 11 milking cows belonging to the present plaintiff, and removed them for the purpose of selling to satisfy the judgment. As soon as the cows had been removed the present plaintiff took steps to establish her position, with the result that the solicitors for Ralls sent a request to the defendant to return the milking cows to her. The cows were returned and the plaintiff alleges that she suffered damages to the extent of £ll by reason, of the cows being taken from her for a period of eight days.

The main defence to the claim was that the action was barred because it was not commenced within a period of three months from the day on which the cause of action arose. The magistrate said he was of opinion that the defence was well founded’. SURPRISED AT SOLICITORS “The act on which the plaintiff founds her action was commenced on November 15, 1928,” says the judgment. “It may be that “the plaintiff would be entitled to treat the day on which the cattle were returned as the day on which her cause of action arose, which was November 23, 1928. But proceedings were not commenced until March 26, 1929. It follows, therefore. that the action has not been commenced within the time limited by section 194 (three months) and Judgment must he entered for the defendant, with costs according to scale.

“I would like to add that 1 am surprised that the solicitors who were responsible for the loss the plaintiff suffered have made no attempt to leintburse her. Had she commenced an action against them within the time limited by section 194 it is difficult to see what defence they would have had. Now, of course, they have only a moral obligation.”