DISTRICT COURT, CLYDE.

Dunstan Times, Issue 579, 23 May 1873, Page 2

DISTRICT COURT, CLYDE.

—o— Monday, May 19, ■ (Before Wilson Grey, Esq., Judge.) Shanley v, Masters.—Damages for wrongful detention of twenty-one head of cattle. Mrf H. C. Brewer for plaintiff ; Mr. F. J. Wilson for defendant. The facts of this case will be sufficiently understood from the judgment. The hearing having closed on Monday evening, his Honor reserved his judgment to Tuesday morning when he delivered it, entering at considerable length into both the facts and'the law of the case.

The following is a summary of the judgment delivered by him.

His Honor said that this was an action for 1001. the value of twenty-one head of cattle alleged to have been the property of the plaintiff, and to have been wrongfully converted to his own use by the defendant. The plaintiff wns'now a farmer)near Cromwell, hut not long since had been a merchant in that town, in partneiship with his elder brother William Shanley. William Shanley having been the chief managing partner, the brothers had carried on business as farmers also, partnership on a farm of 150 acres near the topi, and now occupied by the plaintiff' Michael Shanley. The defendant was ajlquatter at the Nevis, with whom these cattle had been put to be depastured while the partnership between the brothers still subsisted. Michael now claimed the cattle as his, while defendant insisted on his right to retain them as his own property, having purchased them from the Trustees of William, who, after the d issolntiou of the partnership between him andjWilliam, had made a Deed of Arrangement under Bart 18 of the Bankrupt Act, conveying all his property for the benefit of his Creditors. His Honor said that seme doubts rested on his mind as to what were the actual fact ß of the case, and there were some points of Law r in which he still felt some hesitation, but he would state the facts as he found them on such evidence as the parties had been able to produce before him, and decide upon the law on the best light that was at present open Whim. William and Michael Shanley had carried on business in partnership as merchants at Cromwell for several years, and as a part of their general partnership, farmed as a tilllage and dairy farm the 150 acres of land near that town, which ho had already alluded to. In the year 1871 Michael wishing to return home to Irelnrd arranged fin* a dissolution, and received fi om his brother 400/. or 500/. on retiring from the concern, but within a week or two changed his mind returned the money, and resumed the partnership as if nothing had occurred. The brothers owned in connexion with the farm about thirty-six head of cattle, which wore depastured partly on the fai m, and partly on the adjoining laud, a portion of the run of Mr. Loughuan. Mr. Lough nan gave notice in the month of November, 1871 that,

lie would thenceforth charge £1 per head per annum for all strange catt'o depastured on his run, and the Messrs. Shanley, unwilling to pay that price, and desiring to obtain hotter feed for their cattle than Mr. Loughnah’s run afforded, sent these 21 head to he depastured on the run of the defendant at the Nevis, who had hotter grass, and who charged only 10s. ahead. This was done ahout the middle of November. Some time in December, 1871, or January, 1572, the Messrs. Shanley resumed the purpose of dissolving, and did dissolve, Michael retiring from the mercantile business, and William continuing to carry that business on William could not on this occasion give Michael money at going out, but it was arranged that he should take the farm, farm implements, crops, stock, &c., and carrying out this arrangement, William on Feb. 8, 1872 executed to Michael a conveyance or bill of sale, by which, without any allusion to the general partnership arrangement, in pursuance of which it was made, he in consideration of the sum of £2OO recited as before that time to him paid, conveyed to Michael all his right title and interest in the farm, the crops, the implements, “ the pigs, and the stock in, upon or belonging to tho said farm, or used in connexion therewith.” On the 18th of April, 1872, William Shanley' executed the Deed of Arrangement with his creditors. Michael entered into possession of the farm, farm implements, and the fifteen head of cattle left on the farm, at or before tbe time of tho Bill of Sale made to him, but he did not take any possession of the twenty-one head of cattle depastuiing with the defendant, nor endeavor to do so, nor did he give the defendant any notice of tho Bill ofSalethat had been made to him for months after it bad been executed, and months after the Deed of Arrangement had been executed by his brother, and the Bill of Sale had never been registered. When the plaintiff some months after the execution by his brother of the Deed of Arrangement, applied to defendant to deliver tho cattle to him ; defendant informed him that ho had received a notice from the. Trustees of his brother’s estate claiming them as part of that estate, and he declined todeliver them Plaintifl, some months later, made a more formal demand, when defendant informed him that he tho defendant had lately bought them from the Trus’ccs— that he now held them as his own property, and denied that Plaintiff had any title in them. Plaintiff applied to Mr. Loiry, tho Agent of the Trustees, Mr. Leary in answer, re - quested plaintiff to furnish him with information as to the nature of his claim upon the cattle. Plaintiff in reply, declined to furnish him with any, and declared his intention of proceeding to recover the cattle, nr the value of them in a Court of Law. Plaintiff had accordingly brought this action against the defendant. The facts, ho the Judge had now stated were, his Honor said, the inferences he had drawn from the evidence presented in Court, whether they I were in strict accordance with facts as they

existed outside, but which did not appear in evidence before him, it was not his business to enquire, but such were the facts as he inferred them from the evidence. The two principal groun Is raised by Mr. Wdsou for the defence were First,—That ihe Bill of Sale to the plaintiff did uot pass these cattle at all ; the word “ stock "ho contended did not mean Cittle, and ifpt did, tne cattle in question were uot cuttle “in or upon or belonging to or used in connexion with a farm,” but were cattle depasturing on a run, and as much station cattle, and disconnected w ito. any farming or agricultural industry as the station catt.e of the runholder himself. The language of the Bill of .Sale would, at most, apply to the fifteen head of cattle that hud * been retained upon the farm. Secondly,—Mr. Wilson contended that, as there had been no change of possession, and no registration of tire liill of Sale, the Bill of Sale was void as against the Trustees.

As to the words of’the deed he, the Judge, had very little hesitation in saying that the word “ stock,!’ used in relation to a farm, did include c-itdc ; but whether these particular cattle were cattle “ belonging to or used in connection with the farm,” had been a subject of more doubt to him. At the earlier part of the case, when, by some confusion in the evidence, it seemed that these til head of cattle had been scut away as much as 9 or 10 months before the execution of the Deed, he was disposed to think that they bad been separated from the farm to which undoubtedly they bad previously belonged. That they hod, so to speak, been “scaled oft” from the. farming industry, and thrown into a different class of adventure, the pasturing or grazing business, and that they no longer belonged to or were used in connection with the farm, but the facb"'i

turned out to be that at the time of the execution of the Bill of Sale, they had btxu sent away only for about three mouths, and hart they remained in V, ill him Shanley’s hands they were a« like'y to be drafted back and forward in connection with the farm and as part of a dairy herd of cattle, as if th.ey had still continued to be depastured upon Mr. Lougbnan’s run, which surrounded the farm. Then he looked to the number of the cattle, the fifteen left in the farm, and the twenty one sent out, in all, thirty six, young and old, scarcely sufficient as had been proved, .to keep from six to nine cows constantly milking were certainly not an excessive number to be used “ in common with ” a farm of 150 acres, especially considering that in the economy of a tillage from in this country, the farmer lias to make large use of the natural grass, whether of the commonages or of the runs as lie may be able to command ori*treat for, one or tbe other. He thought rln rctorc that these cattle were included in the terms of the Bill of Sale.

Thou can? tin question .is to the nonregistration of the hil of .vile; what was the effect of the bill of sale not having been registered and the possession not having In-on changed. There was a point connected with this question that had not been much touched upon in the arguments before him, hut to which he had given the best consideration he could in the time he had taken to consider his judgment. The point was that this hill of sale was not a conveyance by one sole owner to a stranger, but by one a conveyance by one tenant in common or co-owner to his fellow co-owner, and that the original possession at and immediately previous to the execution of tiro bill of sale had boon the possession of two c (-owners. The question hero arose whether a bill of sale made by one of two tenants in common to the other tenant in c imtnon was within the Bills of Sale Act, or whether the joint possession which continued after the execution of the hill of sale did not satisfy- the act. The point, Ids Honor said, was now to him. His Honor proceeded to consider it at some length. Ho dwelt upon the nature of the mischief which the Act was intended to remedy, and adverted to the decisions under that Act as to joint possession, concluding that (ho present bill of sale was, in his opinion, within the Act, and that, not having been registered, and no change of possession converting the joint possession of William an 1 Michael into the solo possession of Michael, the vendee, having taken place at the time of the execution of the deed of arrangement was null and void as against the trustees. Then came to ho considered what was the consequence of thus declaring this hill of sale null and void. It was clear that it could not go to the whole ownership of the cattle, or the whole value of them ; only to what the hill of sale hud endeavored to Convey, namely, Williom’s half-share. Michael’s half-share, which was his before, and independent of the hill of sale, was not touched by declaring it null and void. The avoidance of it could not divest William of what he owned independently of it. Then did this action lie by one tenant in common against another ? There was room for argument here. On the whole, he thought that there had been such a total ouster of .the plaintiff by the defeudent, who claimed the exclusive right to the cattle, that the action did He ; hut he did not think that this was a point that the defendant would bo much disposed to insist on. The damages w mid, of course, be oidy for the value of the half-share in the cattle. As to costs, his Honor said he did not. like the flavor of this transaction as a whole ; hut ho would not unnecessarily animadvert upon poin's in it that, detened probably by consideration of trouble and expense, defendant had not made points of attack. There was one consideration wdiich determined his opinionas to the question of costs. It was Michael's duty, and he might have been compelled under the Bankrupt Act, to communicate, frankly to the trustees what were the nature a id particulars of his claim to property that had so recently been the property of. the arranging debtor. Ho peremptorily refused to do so, challenging the trustees to

a legal contest which might easily have been avoided. He mint, therefore bear hfs own share of the expenses He (the Judge) would give the plaintiff no costs. His Honor then adverted to another point which had been raised by Mr. Wilson for the defendant —the point of “ reputed ownership.” His Honor said that, had this pout bean available, it seemed to him probable —though he was not quite clear upon it—that the facts of the Case would have justified h : m in giving a verdict wholly for the defendant; but he said he considered the reputed ownership clause did not apply to deeds of arrangement, and gave his reasons for holding that opinion. He would value the twenty-one head of cattle at 31. ss. ahead, and give plaintiff’a judgment for one half the amount, 34i 2s. Cd., without costs.