SUPREME COURT.

Hawke's Bay Times, Volume III, Issue 135, 14 August 1863, Page 3

SUPREME COURT.

[Before His Honor Mr. Justice Johnston and a Special Jury.~\ 3TEIDAT, August 7. Charlton v. Kinross. This was an action for the recovery of .£l5O and interest, the price of <£lso sheep sold and delivered by the plaintiff to the defendant. The defendant denied the sale to him, and asserted that a letter from his attorney, Mr. Wilson, to the plaintiff, was not written on his behalf. Mr. C. Allen and Mr. E. A. Carlyon appeared for the plaintiff, and Mr. J. N. Wilson for the defendant. Mr. Allen opened the case, explaining that the action arose out of sale by the plaintiff and Mr. G. T. B. Worgan of a nm and station at Patoka, and 1050 sheep thereon, to a Mr. M. Hutchinson for .£I7OO, of which .£IOOO was paid in cash and the balance left unpaid, hut secured by a mortgage of the 1050 sheep. On the delivery of possession of the run and sheep, Mr. Skeet attended on behalf of Hutchinson to take delivery, and 900 sheep were handed over to him, the remainder, 150, being withheld on account of some dispute between the parties. Hutchinson sold his interest to Messrs. Whitmore and McNeill, and the mortgage having become due, plaintiff' applied for payment of the .£7OO, when Mr. Wilson called on the plaintiffs attorney and informed him that the defendant would purchase plaintiff s interest in the mortgage, and pay off the debt upon having a transfer of the security. A transfer was px-epared in the name of Kinross, and it was executed by the plaintiff, and a cheque for <£7oo handed to the plaintiff ; and at Mr. Wilson’s request plaintiff made an affidavit of satisfaction so as to discharge his security on the register. The 150 sheep were still undelivered, and plaintiff gave up the cheque and received another for .£550, a deduction of £l5O being made for the 150 siieep, and Mr. Wilson signed a memorandum that the ,£l5O should be paid on the delivery of the 150 sheep. In January, 1802, the plaintiff heard that some sheep were being removed from the run, and he accordingly took up Skeet, still acting under Hutchinson’s power, and intercepted the sheep on their journey and handed them over to Skeet, who delivered them to Mr, McNeill, according to Mr. Wilson’s own dix'ections to that effect. Several applications were then made for payment of £l5O, hut were evaded, and the action was brought. These facts were proved in evidence, and an affidavit made by Mr. Kinx-oss was put in, in which lie asserted he was acting in the matter as agent for Messrs. Whitmore and Me Neill, and held the money to pay the person entitled.

During the course of the trial, the learned Judge intimated that Hutchinson was the proper person to sue, and that defence was adopted on behalf of the defendant, and also that Kinross was merely an agent, and that the plaintiff knew that Whitmore & Co., were the principals. Mr. Allen, in reply, urged that whether plaintiff knew or not, defendant had an interest in the matter ; he had dealt with him as principal, and was, if only agent, liable for his undisclosed principal. The learned Judge summed up unfavorable to the plaintiff, and was leaving certain questions to the jury, when the plaintiff' elected to be nonsuited. The trial lasted the whole day. SATURDAY, August Btit. Hamelmg v. Whitmore § McNeill was also a special jury case, and arose out of the preceding one, being an action in trover for the recovery of tb p 100 «lipou tntpn by Charlton out of the hands of the plaintiff, as mentioned in the former suit. Mr. Carlyon and Mr. Allen were for the plaintiff, and Mr. Wilson for the defendants. The evidence adduced by the plaintiff showed that the plaintiff' had placed certain sheep with Mr. Worgan on thirds ; that Worgan and Charlton had entered into partnership, and had removed the sheep from one run to another ; that the partnership had been dissolved, and that Charlton had left the business on receiving a mortgage from Worgan upon the said sheep to secure the payment of his share in the property. That the plaintiff, finding that the sheep were

being sold, went to Worgan and demanded his quantity of sheep, and that Worgan delivered him 209, some of which were ear-marked with plaintiff’s brand. That whilst in possession of them, and as he was driving them down home, Charlton took forcible possession of them, and handed 150 of them over to the defendants to make up Hutchinson’s complement, wherefore the plaintiff brought his action.

During the progress of the trial, the Judge stated that in his opinion nothing passed under a mortgage of sheep where there was no possession in them, but merely a right of action; that the title was in Charlton, either solely or jointly with Worgan, and that Worgan had no right to deliver up to plaintiff without Charlton's consent, and that no action would lie for specific sheep.

On behalf of the defendants, Mr. Wilson referred to the forcible taking by Charlton as necessarily implying an opposition, and absence of assent, by Charlton ; and his Honor having summed up in accordance with his announced opinion, left it with the jury to say whether Charlton had consented.

The jury found that the title was not in the plaintiff, and that Charlton had not consented.

This case is of the utmost importance to persons having sheep on terms, and shews the utter insufficiency of the existing modes of carrying out such agreements. The owner's sheep may be sold by the depasture!’, and the only remedy is a right of action.