DISPUTE AS TO DEPASTURING CATTLE.

Wellington Independent, Volume XVII, Issue 1797, 27 November 1862, Page 3

DISPUTE AS TO DEPASTURING CATTLE.

Williams v. Anderson. — (Special Jury).— Mr. Gillies for the plaintiff; Mr. Howorth for the defendant. Mr. Gillies said that this was a new class of case here, but it might become a numerous and important one : and although the amount involved was not a large one, the principle was the same. The plaintiff, Peter Williams, in 1854, kept an Hotel at Port Chalmers; and the defendant, John Anderson, was then a runholder and stockowner at Blueskin. The declaration was that in or previous to 1854, the plaintiff delivered to the defendant, a cow and a heifer calf, to be depastured upon his run, with increase, upon the usual terms for depasturing ; but, in fact, the cow was delivered in 1852, and the calf waa dropped about the beginning of 1854:. There were other allegations, all the main ones being denied by the defendant ; and the sum sought to be recovered for the non-delivery of the cow, heifer, and increase, was £4,00. The short case for the plaintiff was that the defendant gave a receipt, in 1852, for the cow, stating that she had been taken to pasture for an indefinite period, at the usual charge; and that in 1854, he distinctly admitted the existence of the calf. There were dealings between the plaintiff and the defendant, with a settlement about yearly ; and when the last was made, at the end of 185 C, there were four cows admitted to be on the run. Subsequently, the plaintiff presented an account to the defendant, who, instead of paying it, said, " Oh ! let it go against the rent for the cattle." The plaintiff had depastured with Messrs. Teschemaker, Pen-ens, Longuet, William Gray, John Williamson, and others; and from this experience, he stated that the usual charge for depasturing was 10s. a head for all over six months old ; and that the duty of the run-holder was to see that the stock was branded, and had ordinary care given to them. He supplied the defendant with a brand. In 1857, he was told that the four j cows had each a calf, and he asked the defendant if they had been branded. The defendant said that they had not, for the brand was too large i until the calves grew bigger. The defendant did, in 1855 or 1856, give notice to the plaintiff to remove the cattle, and the plaintiff twice made arrangements for receiving them ; but they were not delivered to either of the appointees, and the | defendant had never given any reason for refusing I to deliver in February, 1860, when formally de • manded. Mr. C. W. Teschemaker said that formerly the usual depasturage charge was 10s a head ; but now, thirds of the increase was more than usual, and was always more beneficial to the run holder. — By Mr. Howorth :He certainly thought that if he took charge of cattle he was bound to brand them, and the increase ; but not to break them in, unless by special agreement. He had lost cattle put upon his run, but had never paid for any. If cattle died from " tutu " they could often not be found. He could not say who was responsible, the owner or the stock-holder, in case cattle died from tutu. He had, at present, a dispute with the plaintiff as to three cattle lost, and supposed to have died from tutu: Mr, Howorth : Suppose a heifer to be put upon a run in 1853, what would be the increase up to 1857 ? Mr. Gillies : You must put it a cow, for a cow was delivered. Mr. Howorth : Well, then, suppose her ban-en, what would be (A roar of laughter.) Several questions were put to the witness as to increase ; but he adhered to a statement made

during his examination in chief, that four cows and four heifer calves, from 1857, might be certainly taken as increased by about 30 up to the presentfltime. Frank A. Orbell said he was a runholder and i dealer in cattle. The usual charge for depastur- j ing was 10s a head ; the runhclder taking full charge of the cattle — attending to them properly | as if they were his own. If near bash, he was supposed to see that they did not get into it ; or if they did, during winter, to see that they were got out at once. The run-holder had also to cut and brand the young stock ; and to re-deliver them ' in his stock-yard. Four cows and four heifer calves, from 1557 to the present time, would increase by 36 under favorable circumstances ; and a loss of five or six head, by death and other casualties, would be a fair allowance. Mixed cattle (not including calves under six months old) were now worth from £6 to £11 a head. In 1860 they were worth from £G lOs. to £8. — By Mr. Howorth : Ha knew that there was bush frotn the Heads to Dunedin and away to the Flagstaff; it might be ten miles long by six or eight miles wide. Cattle that got into the bush generally got wild. The owner of a run close to bush should prevent cattle getting Into it by doing his duty — by having stockmen to look after them. If he could not keep them in that way, he should not put them upon his run. It would be rather absurd fo.i a runholder to keep a stockman to ride after and keep safe a single cow put upon the run on term s. The Judge said that all this evidence had nothing to do with the issue, which was of failure to deliver. The defendant's run might have been difficult to manage, but that did nat effect his legal liability. Wm. Randall stated that when he wens to take delivery, on notice from the defendant, the cattle were not ready ; and subsequently he was compelled to give notice that he could not receive them. Mr. Howorth submitted that there must be a nonsuit. In Chitty or Contracts, it was laid down that it was not the duty of a bailee or agister of cattle to re-deliver them ; that he was not answerable for any casuality that did not directly result from his own neglect. Lord Ellenborough had drawn this distinction between an agister and the case of an inn-keeper or livery -stable keeper. The Judge said that such an argument was wholly inapplicable to the pleadings, which were that the cattle were on the run merely on sufferance, and had never been legally delivered to the defendant. Mr, Howorth stated the case for the defendant, which (according to the evidence of the defendant's son and another witness), was that after the affair with Randall, the plaintiff appointed one King, who had died, to receive the catile, They were sought for, for weeks, and notice wag given to come and receive, He came, but refused to take those that had been found, saying that he would, only receive when the defendant had found them all and had given notice of a day for delivery. Afterwards, he refused to receive at all, unless the cattle were sent to his own place, six or seven miles off. Portions of the cattle were got in, in two or three lots, more than once; but so much bush being near, and the run having been converted into hundred, so that many cattle came upon it, the defendant's agents (he having gone south to v new sheep run) could only get hold of the cattle after great trouble, and could not keep them in the stockyard, out of which , being wild, they broke. It was also set up that the original arrangement was only that the defendant should do the best he could, without being really responsible ; aud it was stated that there was plenty of tutu on the run, and the cattle belonging to tne defeudant were not unfrequently found dead, The Judge briefly summed up, leaving the jury to decide whether rhe defendant had used ordinary and reasonable care as bailee of the cattle; and if not, the amount of loss sustained by the plaintiff by reason of non-delivery. Verdict for tha plaintiff: damages, £208.