SUPREME COURT.

Globe, Volume XXIV, Issue 2423, 11 January 1882, Page 3

SUPREME COURT.

NISI PHI US SITTINGS. Thib Day. [Before his Honor Mr Justice Johnston,] The civil sittings of the Court opened at 11 a.m. BAILBT V WILKIN AND CO. In this case, Alexander Bailey of Balcairn was plaintiff, and Robert Wilkin and 00. defendants. The facts of the case, briefly stated, were as follows :—ln the month of September, 1881, plaintiff was indebted to defendants, and a !,ien was given by the former over his crops at Balcairn. An arrangement was entered into between plaintiff and Mr Oliver, one of the firm of Wilkin and 00., to insure the crops, and this wrs done in the South British Company for the sum of £4OO. The crops comprised forty acres of wheat, eighty acres of oats, and ten acres of barley. The crops were duly harvested, and on the 4th of March, 1881, the stacks were destroyed by fire. Notice of this was given to the defendants to apply for the insurance money, but the company refused to pay the man on the ground that the crops wore not so valuable as represented. Messrs Wilkin and Co., however, after some time, acting under the power of the lien, took the sum of £244 7s 61, though the plaintiff remonstrated against anything less than the full amount of insurance being accepted. The plaintiff now brought the action to recover the difference between what had been paid and the full amount of the insurance as effected, and alleged that ample opportunities had been afforded to the insurance company to test the value of the crops, and that, in fact, such test was made by their sending a person to value them. This was shown by the fact that the company declined to accept the risk for £SOO, but took it for £4OO. Mr Holmes appeared for the plamtiff, Mr Button for the defendant.

By consent, only one issue was submitted to the jury, viz., what was the value of the crops over and above the amount prid by the company to the defendants. The plaintiff deposed to the main facts stated above, and valued the grain in the stacks at £485. The wheat paddock had not been cropped for seven or eight years prior to his taking the wheat off it. The wheat was Tuscan, and a splendid sample. The oats and barley were also good. The fire destroyed the whole of the grain in stack. Mr Button cross-examined the witness at some length as to the quality of the land upon which the crop was grown and the quantity per acre of yield. .Richard Qi'lespie deposed as to bis estimate of the quantity of bushels of wheat, &c , as growing on plaintiff’s land. He estimated the yield to be—wheat and oats, forty bushels per acre, and barley twenty-five bushels. The wheat was Hunter’s white and white pearl, and the oats short Tartarians. The land upon which the wheat was grown was heavy laud, except some two acres. The wheat stacks should have yielded about 2CO bushels each, the oats 300, and the barley 260 to 300 bushels each.

David Heaney deposed to haring been employed in catting the crop on tbe plaintiff’s land. The whole of the crop was a fair one. The yield of the wheat should be 2CD bushels per stack, and the oats a little more. Alexander Yallance gave evidence as to his estimate of the yield per stack of wheat, which he calculated would be from 190 to 2C9 bushels ; the oats would give about from 290 to 310 bushels ; and barley from 240 to 260 bushels. In cross-examination the witness said that the sample produced was a mixture of Hunter’s white and velvet chaff. It was a fair milling sample. This closed tbe plaintiff's case. Mr Button opened the case for the defendant, contending that the contract of the Insurance Company with the plaintiff was one of indemnity, and not a wagering one. He intended to prove by a number of witnesses that the crops of plaintiff were light. The following evidence was called for the defence:—

W. A. Bean deposed to seeing tbe oropn of the plaintiff at various times. In September, 1880, he went to see the crops, and found some on part of the land, and other parts without crops on it. Some of the land belonging to plaintiff was very good agricultural land,'and some very inferior. About fifteen acres of tbe wheat paddock was good land, and the remainder went out into light land. The other portion of tbe land was light as a whole, running out into poor shingly stuff. Opposite this land was a gravel reserve belonging to the Road Board. The other parts of the land bad been cropped continuously for fifteen years, and was worked quite out. The crops generally on plaintiff’s land were vary light, except a email piece of the wheat. Taking the whole paddock, be should think himself lucky to get seventeen bushels to the acre. In some parts of the oats they were not worth cutting, though in parts there was a fairly good crop; he reckoned it to come out some fifteen bushels to the acre. The barley was so choked with weeds and sorrel, and was put in so late, that it was impossible for it to grow. It was perfectly impossible for 250 bushels of barley to have been got off the land. Tbe stacks were® collection of the smallest he had ever seen in his life. There were one or two fairly-sized stacks with some little ones nestling under the eaves. Nominally the wheat paddock was forty acres, but about thirty-six was more tbe size. It could be determined by the examination of the stubble ae to whether a heavy crop had been taken off or not. From the appearance of the stubble, the weeds in it, and the second growth, ho should say -that the crop was a light one, and would run from thirty-five bushels per acre on the heavy land, to ton on the light. The oats exhibited a wretchedly thin stubble, and full of weeds. It appeared as if the machine used to cut the crop bad ridden over it to a certain extent. The sample of wheat produced was obtained from Mr Gilchrist. It was very poor pinched grain. It was weak, thin, and poor. It was dried up by rust or something of that kind. The wheat was such a nondescript grain that he could not name it. The sample had been in his possession for ten days. Allowing 4|d for threshing and delivery, first class wheat would be worth 3s per bushel on the ground. The plaintiff's wheat would bo worth from 2s 9d to 2s lOd. The maximum price of oats was la 2d ; the highest price paid by witness for oats delivered at his store, and be

had paid up to 3s 5i for wheat for prune samples. Barley was worth from Is 3d to 2s 6d. The distriot could not grow malting barley j there had hardly been any grown in it.

In cross-examination by Mr Holmes witness deposed that he had grown thousands of acres of grain, and had been grain buying for about twelve years. About twenty-five acres out of the forty in the wheat paddock was light land. The land referred to as having been laid down in grass land had been over cropped. It had never had a long spell, either lying fallow or in grass. Witness saw the stacks on March Ist, and they were burnt on March 3rd. This impressed it on bis recollection. He had sold Tuscan wh< at at 3s 9d per bushel for delivery at Christchurch or Lyttelton,

[Left sitting.]