SUPREME COURT, NAPIER.

Daily Telegraph (Napier), Issue 3265, 19 December 1881, Page 3

SUPREME COURT, NAPIER.

CIVIL SITTINGS. THIS DAY. (Before His Honor Mr Justice Richmond, and a special jury) His Honor took his seat at 10 a.m. BANK Or W.Z. PEKAKEREKERE. This was aa action to recover damages for wrongful distress aud conversion of sheep, the property, by virtue of a bill of sale, of the Bank of New Zealand. Messrs Travers and Ward appeared for the plaintiffs, and Messre Rees and White for the defendant. Mr W. Birch was appointed foreman of the jury. Mr Travers said the facts of the case were that a person of the name of Hardy, who married a Maori woman, was occupying a portion of a block of land at

Gisborne known as Makauri. This block of land was granted to no leas than 5G grantees, who were joint owners in common of the property. Hardy married one of these joint tenants. Besides holding this fifty-sixth share in the block, Hardy and his wife bad acquired from another grantee a further fifty-sixth interest, subject to a certain annuity, so that practically Hardy had held one share in his own right, and, in the right of another person, a further second share in the property. Through some reason, however, Hardy did not occupy in common or jointly with the others, but was'permitted to set apart and occupy exclusively a portion of the property in question, and upop this he had built a house, &c. Poetically he was occupying exclusively two separate portions separated by a road, but each constituting a part of tbe whole block, although there bad been no partition of the property to give him this exclusive right to the land. Every individul in the block, in fact, would have had a perfect right to occupy it with him jointly, Hardy having only a small interest in the whole. Hardy had running on this land a flock of sheep, which we're mortgaged to the Bank of New Zealand, who eventually found it necesss-iry to take formal possession of the sheep under a bill of sale. The plaintiffs placed these sheep in charge of a bailiff, a person named Wall, who was actually in Hardy's employment. The sheep were placed in a paddock on the side of the road, and the gate locked. This was the plaintiff's right to the sheep. Before the event which gave rise to this allegation, Hardy had conveyed by deed the interest which he and his wife had in this block of land to the Bank of New Zealand. The plaintiffs were in short at this time the owners of Hardy's wife's share and the share which had also been transferred to Hardy's wife, and held both blocks in fee simple. But their title stood no higher tban that of any other of the joint owners, who might equally have enjoyed it with them. The defendant was also the owner of an undivided share by bis own wife, who was a grantee, she having conveyed her interest in the block to defendant. He had therefore a right with the others to occupy this land, and in his capacity of owner of a share, defendant made a lease ot Mr Hardy. This lease was stated in the pleadings by tbe defendant to have been a lease ot a certain portion of the block, and plaintiff's counsel was under the impression on first sight that defendant bad undertaken to make a lease of a specific portion, but it now appeared that such was not the case. He had simply given a lease of his estate and interest in the land. Curiously enough the lease says it contains by estimation 144 acres, being the amount which defendant estimates would be allocated to him. The lease therefore is practically only a power of demising what interest defendant bad in the block. It waa on the 16th March this year that the Bank took possession of the sheep by virtue of a bill of sale. The distress was made by the defendant on the 28th day of the same month. It would be contended that the property ie these sheep by virtue of a bill cf sale was vested in the Bank of New Zealand, and the Bank of New Zealand having a freehold interest in the land was entitled to run the sheep upon any part of the block in common with the other tenants. Not only bad the plaintiffs an exclusive right to this paddock which Hardy had used exclusively, but a right to be in the paddock as well as Hardy, and in spite of him or any other of the grantees under the grant. It was alleged by the defendaet that Hardy at the time of the distress owed him one years' rent, viz., £80, as reserved by the lease. This rent was payable, subject to alteration or modification, half-yearly, on March 4th and September 4th. But although it was alleged that on the 28th of March there was a years' rent due, it was not alleged in the pleadings at what particular date it became due. At the time of the distress, moreover, the property in the sheep was in the hand 3of the plaintiffs, and they were running them by virtue of the possession which they had taken in this paddoelr. Iv point of fact they might, had they chosen, have run them in any part of the block as well. Mr Hardy was occupying another portion of this Laid under, so far is known, similar conditions to the above, and had also on this part his house, furniture, piano, but'gies, and such like goods of value, which should have been before 'he sheep were touched. The law \va« clear enough ou thi« point, that it there i j any other property available not absolu'ely exempt from distress for rent it must be taken before t-heep. As Hardy held all the goods nhove-mentioned under exactly the same title, there was nothing to prevent the defendant from distressing these instead of his ,*heep, besides the;-e sheep running on this property were not liable to distres at all because even bad there been nothing else ou the ground they could not have been seized, for this reason that the ground was the common prooerty of fifty-six tenants, and the sheep might have belonged to a stranger. (Mr Travers here quoted the law on the point from Vol. 28, Common Law Keports, and Vol. 18, Kquity, page 381.) If one joint tenant had with the consent of all the others let the land, then it would have been different, but this was not the case. [The following documents were then produced and handed in:— Crown grant of land, dated 9th January, 1881 ; bill of sale of sheep and mortgage, for £1,590, dated 2nd October, 1879; conveyance from Hardy and wife to the Bank of New Zealand of all their interest in the land, dated 16th November, 1880.] Witnesses on behalf of the plaintiff were being called upon when our reporter left.