SUPREME COURT.

Sun (Christchurch), Volume I, Issue 248, 23 November 1914, Page 10

SUPREME COURT.

CIVIL SESSION. CLAIM FOR DAMAGES. ALLEGED TRESPASS. .The Civil Session of the Supreme Court was commenced this morning, before his Honour Mr Justice Denniston. The first case taken was that of Robert Aitken v. Pyne & Co., a claim for £570 17/9. Mr S. G. Raymond, K.C., with him Mr J. H. Upham, appeared for the plaintiff, and Mr 11. J. Beswick, with him Mr K. Neave, for the defendant company. A jury of 12 was empanelled. Stating the facts of the case to the jury, Mr Raymond said that the plaintiff, who was a sheep-farmer at Maungatua, Otago, entered into an agreement with one McKenzie, a slieep-owner at Bankside, near Rakaia, for the exchange of their properties. Each of the parties also Hold his sheep to the other, with the result that McKenzie owed Aitken about £3OO. On May 1 Aitken took possession of McKenzie 's property, together with the sheep on it, and McKenzie was also given delivery of Aitken's sheep. There were altogether on the Bankside property 399 sheep, of which six. were rams. When Aitken took over the sheep he did so in the presence of a Mr Payne, a representative of Pyne & Co., who had sold 311 of the sheep to I McKenzie. Payne had since left the Do- | minion with the Expeditionary Force, but his evidence had been taken on commission. A number of sheep had also been bought by McKenzie from Dalgety & Co. It subsequently "transpired that the sheep purchased from these two firms had hot been paid for. At the same time McKenzie, for all the jjurposes of sale, was the owner of the sheep, there being no bill of sale or other document to show that the purchase money had. not been paid. When Aitken took oyer the sheep lie did so in the full belief that McKenzie was the absolute owner of them. He saw Payne several times, but Payne said nothing whatever to him about McKenzie's not haying paid for the sheep until some time after he had entered into Aitken then decided to go down to Otago and see McKenzie for the purpose of making enquiries. He even expressed his willingness to for the sheep, so long as he was not prejudiced and could make satisfactory arrangements with McKenzie—especially so, as lie could probably get credit from Pyne & Co. Whilo Aitken was away, Payne arrived at Bankside, Mrs Aitken being in charge. He said that he had instructions to remove, the sheep, and notwithstanding the protests of Mrs Aitken, who pleaded with him to wait

until her husband came back, he rounded up the sheep, penned them, and subset quently removed them. Amongst the sheep removed were two which had been brought by Aitken from Otago. Three rams were also penned, and these Mrs Aiten let out. They had not been seen since. McKenzie was unable to pay Pyne & Co., and made no arrangements with Aitken. So far as the arrangements between McKenzie and Pyne & Co. were concerned, the debt may have been a bad one, but that had nothing to do with Aitken. The sheep were removed on May 11, and on June 8, after Aitken had protested, they were brought back to his run. In that period they had been' put on inferior feed, and had been allowed to deteriorate. On his return, Aitkeiw was naturally very much irritated to find that his property had been entered in this way, and therefore he claimed damages. When he bought the sheep from McKenzie they were worth £1 a head. For the purposes of the deal with McKenzie they were valued at 19/- each. Of the sheep bought from McKenzie eight were not returned, and there was also the loss of the three rams, valued at £3 «V- each, for which it was claimed the defendants were responsible. The claim for the loss of sheep was therefore £l7 9/-. The sheep when returned were not worth so much as when they were taken away, and the plaintiff reckoned the difference at £52 18/9, which sum was also claimed. In addition to this there was a claim for £SOO, general damages, for trespass and removal of the sheep, making a total amount claimed of £570 17/9. The statement of defence, Mr Raymond continued, consisted, firstly, of a general denial of the facts, which placed the onus of proof on the plaintiff. In the second place, Pyne & Co. stated that they had H9KI Hll sheep to McKenzie for £250 6/-, and that Dalgety & Co. had also sold him 133 sheep for £ll.'i 9/-. He did not pay either firm. As a result the defendants, acting in co-operation with Dalgety & Co., had claimed the sheep. His Honour (to Mr Beswick): Did you claim the right to seize? Mr Beswick: No, your Honour. We admit that if the plaintiff can prove deterioration he is entitled to that. His Honour: So it is a mere question of damages? Mr Beswiclc: That is so. His Honour: One wouldn't take it 9r-

from the statement of defence. Mr Raymond: That is what I was going on, your Honour. Mr Raymond tlieu proceeded to call evidence on behalf of plaintiff. Evidence was called on both sides. In answer to his Honour, Mr Beswick said that the defendant company did not admit any loss of sheep, or any deterioration in the sheep taken. Addressing the jury, Mr Beswick said Pvne and Co., acting in conjunction with Dalgety and Co., seized the sheep on the plaintiff 's property at Rakaia. It was now admitted that such seizure was a mistake. The question, therefore, for the jury was whether the plaintiff was ontitled to damages, and, ii so, to what amount. (Proceeding.)