Pahiatua District Court.

Manawatu Standard, Volume XLI, Issue 8140, 2 June 1906, Page 3

Pahiatua District Court.

ZEALAND LOAN CO LTD ILE fIGb ' NCY " H^ltsT F P htxi f Court '^ g e of 111 fo ™ded to the Clerk his l,,Ln " Cfc n Court ' l >l ihiatua, the iv«- 7 eil i" 1j t case v. the New Zealand Loan and Mercan ile Agency Company, Ltd., which was heard at Pahiatua on May 16th. The action was one in which the plaintiff *91 n n i e - de . fend ant company for ZZ i l , 2s ' b , emg treble damages for Fnr U jl-n r f or ln tlie alternative tor ±,ioO 4 s i or conversion. Plaintiff had leased certain lauds at Mangaone to a Miss Celia Flyger, and her brothers O. and P. Flyger managed the property on her behalf.' Ihe lease was-for a term of six months, with a provision for renewal, which had not been complied with. In December last Messrs Flyger Bros, purchased 35 bead of cattle from the defendant company ; the cattle were no't paid for. The plaintiff put a bailiff into possession of the premises in the end of December, and the bailiff, one Jagerhorn, distrained the J cattle purchased from the company with others on the premises. In Januaryit was alleged that the defendant company took possession of the cattle from Messrs Flyger Bros., and it was contended that m doing so the company had committed a pound-breach, it was contended for the defendant company that (1) there was no right to distrain, the term having ended in October ; (2) that the Messrs Fl.yger were not in possession i within the meaning of the statute; (3) that if there was a right to distrain there was no sufficient impounding; (-4) that a corporation was not an " offender" within the meaning of the penal statute ; and (5) that there was no damage, sufficient stock having been left on the premises to satisfy the claim of the plaintiff As to the alternative claim it was argued that a distrainor did not have possession of distrained chattels sufficient to found an action for trespass or trover.

His Honor, after an exhaustive review of the tacts, goes on to say :—On the points raised by the defend-v;t company's counsel I am of opinion that the tenancy between the plaintiff and Celia A. Flyger was not determined and that the latter held over the premises either on sufferance or at will, but I fail to see how the right to distrain for six months rent in aa vance could arise. It is not necessary in the view I take of those grounds to elaborate the other grounds of the defence. They are mentioned in the eveno of an appeal. The conclusion I must arrive at as to the possession must be the same as that of His Honor Mr Justice Williams in the case of Finlinson v. Eeid. That decision is now twenty years "old, and has been treated as sound since its delivery. With regard to the alternative claim it appears to me to be decided by authority that the distrainor cannot maintain, trover or trespass, but must rely upon the statute for treble damages for pound breach. In my opinion it, is necessary for the plaintiff to show that his distraint was lawful and for rent duo before he can maintain an action for pound breach, and further that the goods restrained wore the goods of the person "in possession," and in both these matters he has failed. The plaintiff will be non-suited, with the usual costs. Mr C. E. Harden, of Palmerston North, solicitor, appeared for the plaintiff, and Mr B. J. Dol&n, solicitor, Masterton, for the defendant companj'.