SUPREME COURT,

Colonist, Volume LI, Issue 12424, 14 December 1908, Page 3

SUPREME COURT,

5086

vas 1540. The run was. mustered igain in. February 1908, for dipping ;he lambs and 23 wpolly sheep were mind. The property not being fenced iheep could stray into tho , Cushion j ;he adjoining Crown lands. To. Mr Wilford : After the muster ! fery rough country. He was not ] present during' the whole muster, and 3ould not swear that it was a clean muster. Some sheep might have been loft in one of the gullies. His brother was one of the musterers, and lie might have refused to" go into a,: gully, and. drize the sheep ou.t. After the muster he got about 15 sheep from neighbours oh whose land they had strayed. "When he left the run there w0re. 2825 sheep on it. He estimated -that" the run would winter half a sheep to the acre. yT»; Mr Maginnity: £3 would be a fair average price .for a mixed mob of cattle such as that bought by Mr Fail. Every precaution was taken to make an effective muster. . To Mr Wilfodr: After .the muster Lublow lent him a field glass ' and showed him sheep still out in different parts of the run. He saw about 20 sheep through the glass. .-"-.- Thomas Taylor, of Baton, farmer and hotelkeeper, stated : He took part in the musters on the Baton run and mustered his part clean. . Some of ,tne gullies were very rough. Sheep cotdd stray from the, run on to the adjoining Crown lands. - jo, Mr Wflford: Did not hear Lub-low-complain, about the muster or, ask for a second muster. " Edmund Bromnell of Baton, farmer stated •" He was . well acquainted with the Baton run, and had mustered it .several times before. He., made- a clean. muster of his particular, beat, .bufc coilM not answer' :for . thes'oiher ''imlsterers.^. He sold some cattle to Jub/low. in December 1907. . - To Mr Wilford : He had been shearing .recently for Drummond, and.': found ? one woolly, sheep from -Fail's run- He had seen' sheep' .on; /the. Crown lands adjoining the Baton fun: It is usual to make a second muster when a tally is required ron a run being taken over. . --. G. S. F. ; Lublow, the defendant, stated: He had counted sheep on the run -two months prior to giving possession and found 2150 on' the run. He. did not agree to cacpet . He did ■■ not agree to accept shearers' < tallies, -but agreed that the "sheep should be counted when the muster was made for shearing. He niusteredyMaori Gully himself, with W. Thomson. They, agreed what parteach had to do but Thomson did. not muster his part clean. Hfe complained to- F; 'Thomson^each day about the mustering and asked r him"' for a second muster, arid, he promised that* it should be made three months' later. Ho was not allowed to make a count at the second muster but was refused permission to enter on the run. He was satisfied that the run was not properly mustered.- .. - To Mr Maginnity: He took over about- 1700. sheep with the run three yeai - s. before.' ." Ho sold 400 sheep,and lost a good many. : The annual increase vrould be about. 74o. Some of the ' sheep., stray away off the run. The count of 2150 sheep was made in June 1907. He could not make a second niustor because Fail hs.A taken possession and no men were available. He showed Thomson 20 sheep through the field glass and he saw 30 more himself.. To Mr Wilford: He mustered the run in June and the count .showed .2000 sheep. When Thomson left 2800 sheep -rc-ere ori 'the rim. He could not say how many sheep died, nor how many strayed. A second muster was always made. After Counsel had addressed the Goiu-t his Honor eavo judgment for plaintiff for £140, beinp for 200 sheep at 14s each, -short delivered, without costs. In the c.ourse of his judgment his Honor stated that, the agreement so far as the ' cattle was concerned had been- complied with, -as : ,*3 was -evidently the average price for the whole mob. As to the sheep *he agre-iiront amounted to a-'euar--'-of ;-1n75, and the: aTuestion he had to d«cirio W a ? astn the probable number of sheep nqtually received by Fail. He cojjsj.dersd that 200 sheejj -was: :a _fair ' number ; 'for which to give judgment for as, the plaintiff had admitted .that he was not entitled to the whole number of 435. If the dsfendanthad 2000 sheep in June his loss for the half year would be about 200, leavnig 1750 on the run in December. The costs were refused on three grounds.: (1) that the plaintiff /on > J ai ! ed , m the claira for cattl e ; |2) that the plaintiff had failed in /o\ lIIS cla m/for the sheep; and (d) that the nlaintiff had refused to give a .second-. muster.. r Each -party would th 3 r.6f ore Jiave. to .pay" his own' COStS.V:. .; - ; ,^,'Y ;.*■'. ' *.. '■ ■-' ■■'