Supreme Court, Nelson.

Marlborough Express, Volume III, Issue 147, 5 December 1868, Page 5

Supreme Court, Nelson.

[Before his Honor Mr. Justice Richmond.] WEDNESDAY, NOY. 25xh, 18G8. IMPORTANT SHEEP CASE. STEWART V. PIKE, This was an action of tiover, the grounds of which, as stated in plaintiff’s declaration were that Samuel Holier Pike the defendant, had converted to his own use a flock of 1053 sheep. Damages claimed, £I,OOO. The pleas consisted of a simple denial of the statements in the declaration.

It appeared that an agreement had been entered into between the defendant and George Corser Saxton, with reference to certain sheep on the runs of Tarndale and Rainbow ; and it also appeared that sheep on which the action was founded had been previously made over for certain considerations under an agreement between the plaintiff and the said G. C. Saxton ; but in this agreement no mention whatever is made of the name of the plaintiff.

Mr. Connolly, with whom was Mr. Kingdon, for the plaintiff, in opening the case, stated the sheep had been handed over to Mr. Saxton, who had transferred his interest in them, and his liabilities for them to Mr. Pike.

Mr. Button, with whom was Mr. Pitt, for the defendant here interposed, and asked Mr. Conolly whether he intended to prove the delivery of these sheep to Mr. Pike. Air. Connolly replied that by the agreement between Saxton and Pike ho could prove the delivery of certain land and sheep, and the undertaking by him of certain liabilities of Saxton’s. If Mr. Pike did not get the sheep, so much the worse for their side. Mr. Button said that without going into evidence at all he claimed a verdict on the strength of the opening speech of his learned friend; who after alleging that the sheep in question were transferred first from plaintiff to Saxton, and then from Saxton to Pike, said that he was not prepared to deliver the sheep to us, and that if they were not delivered so much the worse for us. This admission of itself was sufficient to entitle us to a verdict.

Mr. Connolly : The argument was that the defendant adopted the agreement entered into between plaintiff and Saxton. The Judge said : It depends on what the sheep were. If they were paper sheep, then I do not think the case can proceed. The agreement is one of those delusive sheep agreements where there is a transfer, on certain terras, of certain sheep, in which the original owner lost all right of property when they were, or might be replaced by others, and sometimes they exist only on paper. If the plaintiff’s counsel are not prepared to show that certain specific sheep, in the actual mutton, and not paper sheep, came into the hands of the defendant, I cannot see that it i» of any use sending the case to a jury. These agreements are drawn up in the usual.way, and guarantee the sheep referred, to in them against mortality; in fact they profess to deliver a certain number of immortal sheep, warranted never to die, never to grow old, and their increase to be all of an equal number of the sexes. Mr. Connolly: "We cannot expect the same identical sheep ; because for example, there were in this lot 250. lambs, which next year would be ewes or wethers, and other lambs must replace them. The Judge : Were the sheep branded as plaintiff’s? Mr. Kingdon did not think they were. 1 After some conversation, plaintiff was put in the box, and deponed- to delivering certain sheep toiMf. Saxton under an agreement between Saxton and himself ; and subsequently asking Mr. 'Bike for those, sheep hack again. Mr. Pike on that occasion replied.that he had not received delivery of so many sheep as would leave him sufficient to, deliver to me.

Some debate occurred-here between the counsel on the question of admitting or not

the agreement between plaintiff and Saxton, and objections were also taken to certain evidence by the plaintiff respecting his dealings with the supposed agents of Paxton. The Judge said it seemed to him, that there was an agreement to deliver over a certain number of sheep by Saxton to plaintiff, which was a mere personal and pecuniary obligation, and was not certainly transferred under the agreement between Saxton and the plaintiff. As for these sheep agreements, however well the sheep may look on paper, there ought to be specific delivery of specific sheep. The animals expected from the future are no sheep in the eye of the law, and the sooner the public know this the better. If you cannot show that sheep were delivered to defendant no action of trover could lie against him. The plaintiff agreed to accept a nonsuit, which carries costs in favor of defendant.