RESIDENT MAGISTRATES' COURT, HAMILTON. Wednesday.—(Before Mr H. W. Northcroft, R.M.)

Waikato Times, Volume XXI, Issue 1785, 13 December 1883, Page 2

RESIDENT MAGISTRATES' COURT, HAMILTON. Wednesday.— (Before Mr H. W. Northcroft, R.M.)

The Hamilton Pound. W. M. Hay v. C. TippesT. --Claim, £0, the value of, and damages claimed for the dete.ition of, a red and white heifer, the property of plaintiff, purchased by the defendant in the pound in Hamilton East. Mr O'Nt'ill appealed for the defendant. Mr Hay, in opening the proceedings, said the heifer was his property, and defiv.idaut had refused to deliver it to him. He presumed that this was all it was necessary for him to prove, though, if the defence relied on the fact that the animal had been legally impounded, he would ask to be allowed to biiug foiwaid lebutting evidence. He then went into the box, and deposed that ou the 31ht he was possessed of, and .still owned, a heifer, valued at £3. On that day he went to the place called the pound m Hamilton East, and found Mr Bradley in the act of knocking down the heifer. He served a demand for the heifer on Mr Tippen, who was the purchaser, directly after the sale, and befoie any money was paid. Defendant refused to give up the heifer, and still detained it. In cross-examination, witness said he did not think the beast had been impounded. The poundkeeper had not gh en the necessary notices. Did not admit that Kelly was the poundkeepor, or that the yaid was a pound. Some time ago witness had paid to release a horse fioni the same place, but only under protest. He chose to do so, but still held the poundkeeper liable. He re marked at the sale on the 3lst that whoever bought the beast would buy a lawsuit. Did not protest against the sale. Was not quite certain at the time that the beast was Ins, though he had prepared the wiitten demand bufoiehand. Did not piesent defendant buying the beast. Thought the heifer was woith about £2 at the sale. Had sustained damage to the amount of £3 on account of tumble and annoyance. Did not bi ing the action befoie because he did not know whethei he would be here. Had asked Kelly to leleaso the heifei out of the pound, but did not see fit to sue him. Wm. Fradgeley deposed that he had on behalf of his employer, the plaintiff, demanded the beast from defendant, who refused to give it up. He examined the poundkeener's books, and found that the entry of the impounding of the heifer in question on the 17th October had been made on a loose blip of paper at the end of the book. Wm. Davis, bootmaker, Hamilton, deposed that lie knew the beast well, and valued hei at about £2 l(k-> or £3. This was the case for the plaintiff. Mr O'Neill said the plaintiff must be non-suited upon several grounds, in the first place the heifer had been impounded, and mas sold in the usual way, and iv the second place it had been bought by the defendant, which gave him a title to the beast, unless it cuuld be proved that some wiong had been done, it was foi the plaintiff to show this. The learned counsel then quoted from Bioom'.s Legal Maxims, and Mi Hay having lopliud on the non-suit point, the bench decided to hear the defence. Mr O'Neill then called Charles Tippen, the defendant, who deposed that he attended a .sale at the pound on the 31->t October, and siw Mi Hay there. Wituet-s became the puiehaser of a led and white heifer for 17s o"d. Mr Bradley asked Mr Hay if he was going to bid another half-a-ciown, and the plaintiff merely shook his hoatf. ihd w>t hoar Mr liny remnifr that the beast wan his own aheady, aud that the buyer would pm chase a law suit, but was bound to ha\e heai d them if those woids had been used. Plaintiff did not warn him against buying the beast, but allowed the -.ale to go on. Had Mr Hay warned him, he would have had nothing to do with the heifer. Did not know Mr Hay claimed the heifer. The beast was nothing but skin and bom- when he bought her. She was in fair condition now, but he would sell her for 30,. In cross-examination, witness said he did not know the beast was plaintiff's. Heard plaintiff had a beast in the pound, but thought it was a c >w. When he got the demand, he had not paid the money, but he paid it soon after. iiobt. Biadley, auctioneer, s'woin, deposed that he held a .sale of cattle at the pound on the 31^t October. A icd and white heifer was knocked down to Tippen. .Saw plaintiff theie, and asked him in a joculai way if he intended to bid. Mr Hay, in ieply, shook his head. Was only about nine feet away from plaintiff, but did not hear him say that the beast was his.and that whoever bought her would buy_ a lawsuit. Plaintiff did not protest against the sale. The heifer wa» poverty-atiicken, and the full value was obtained for her. Had she been in fresh condition she would have fetched about about 23s at the Ohaupo maiket. In cross-evaniination witness <«aid he did not hear plaintiff say anything about a lawsuit at the pound. Knew exactly why plaintiff came to the pound, and asked the poundkeeper to get his notices ready, as they had a lawyer to deal with. To the Bench : The beast was poor from starvation in the pound. I diew attention to the state of the pound at the borough council. It was in a disgraceful condition. This was all the evidence. Mr O'Neill relied upon the maxim of law, " Nullus conimodum capere potest de mjuria sua propria" (no man shall take advantage of his own wrong). Plaintiff had been present when the heifer was purchased by defendant, and had not objected. He quoted Pickaid v. Sears, in which it was decided that where a man represents a certain state of things to a third person who piu chases on the representation, he is estopped from disputing the representation; and also Gregg v. Wells, in which the ailing is that a person who culpably or negligently stands by and allows another to contract on the faith of a fact he can contradict is not allowed afterwards to dispute that fact. Mr Hay said that as to the first point, no pound had been proved. All the plaintiff had to prove in a case of this kind was that the heifer was his ; that he had never parted with it, and that he had demanded it from the defendant. . All this he had proved. Tf the defendant relied upon a sale out of the pound he had to prove the pound legally, and that all the legal formalities necessary to entitle the poundkeeper to sell had been complied with. The doctiine of Caveat Emptor (let the purchaser beware) applied in this case, and the defendant bought at his own risk. He should have satisfied himself that the poundkeeper had complied with the law. The property in the heifer could not pass unless all conditions pi ecedent had been performed, and it had been proved that they had not. As to the legal maxim quoted by defendant's counsel, plaintiff was not guilty of any wrong. He made no representation that the poundkeeper was the owner of the heifer, or was authorised to sell her, therefore the maxim did not apply. The cases cited were cases in which the question was whether there was evidence from which a jury could infer that plaintiff intended te waive his rights. His Worship could not infer from plaintiff's action in this case that he had intended to consent to the sale. Both of the decisions quoted have been much modified by the ruling of Lord Chancellor Chelmsford in Freeman v. Cooke, and by other late cases. The true state of the law is that if a party wilfully makes a representation to another, meaning it to be acted upon, and it is so acted upon, it gives rise to what is called an estoppel. There was no wilfulnesn on the part of the plaintiff, nor did he make any representation meaning the defendant to act upon it. He claimed that plaintiff was entitled to judgment. Mr Kelly, poundkeeper, called by the court, was put in the witness-box, aud produced the pound-book. He admitted neglecting to give the notice required by the act, and also omitting to obtain a magistrate's order for the sale, a"nd stated that he was in ignorance of the act, owing to the borough council not having supplied him with a copy, After some further argument, his Worship reserved judgment until Saturday morning, at 10 o'clock. Several, other unimportant, civil cases were' disposed of.

4 meeting of the ratepayers in the Rangiaohia Rq id District, in reference to the closing 1 of roads in the Manpapiko and Funiu Parishes, is 4o be held on the 22nd inst. The appointment of inspector of slaughterhouscs'for the' county of I'iako ii notified' in, another column. . . AH the debts due in tbe estate of W. Black be paid to James Hally, creditors', trustee in bankruptcy. \ , i4t &&! ' % , '/ i'-yv. { 1 , notices tb,at he cqn>'nienc(j| -bijsinejir tp* ;