SUPREME COURT.

Nelson Evening Mail, Volume VIII, Issue 240, 6 October 1873, Page 2

SUPREME COURT.

[Before His Honor Mr Justice Richmond.] Fbidat, October 3. IN BANCO. Thomas and another v. Edwards. His Honor delivered judgment in this case as follows: — The question reserved on the trial of this action is one upo:i which the whole cause depends. That question turns upon the construction of a mortgage of stock, dated the lst of December, 1868, and made between Samuel HeJ'er Pike of the one part, and the defendant of the other part. The case, I may sny, is a very unfortunate one, in which a question has arisen as to priority of claim between two parties equally innocent, equally meritorious, upon one of whom the loss must fall, from thc unsatisfactory nature of the transactions in which the pprties have been involved. It is one of the many cases in which parties have attempted to deal with interests in sheep in the same way as with interests ia land, losing sight of thc distinction, which no legislation can obliterate, between moveable and immoveable property, and seeking t> define separate interests in ono and the same flock of sheep, as if the property were something separable by metes and bounds. I must again take occasion to express a hope that the Courts in New Zealand have nearly seen tlie lust of those roost unsatisfactory instruments called agreements for sheep on terms. The parties should only understand that these virtually amount to bills of exchange payable in sheep instead of in money, and create nothing like a specific security. I have not in this case indeed to deai exactly with such agreements but with deeds of a similar nature, which attempt to mark out separate interests in the same flock of sheep. Now the deed with which I have to deal here is one which I have repeatedly considered and endeavored as it were to spell out. It is a deed as to which I feel sure that it does not in reality affect the intention of the parties, and in which words have been used without regard to their signification. It is a case in which the conveyancer has taken his common form out of his pigeon-hole and used it without endeavoring to adapt it to the circumstances of the case; one of those cases for which the law is blamed, whereas the fault is not withthe law but with the lawyers. StiU I am bound to find a meaning if I can for the words which have been used, and I must impute tbat meaning to the parties, though experience tells me that they really meant no such thing. Loss will have to fall upon an innocent party, and in this case it will not be upon the mortgagee. The parcels in the deed of mortgage under whieh the defendant claims are iu these words: — Mr Pike assigns to the defendant "*■ All the stock described in the schedule hereinafter written, and branded as therein mentioned, and the increase and progeny of such stock, and now or hereafter depasturing upon the said parcels of hind and waste lands of the Crown (hereinafter styled the station), conveyed,transferred, and assigned by the hereinbefore recited deeds of even date herewith in the charge of the said Samuel Helier Pike." The parcels then proceed " And all the stock branded in the said schedule hereinafter written is mentioned that may at any time duiing the continuance o

this security be depasturing upon the said station or any part ther. of, and the increase and progeny thereof." Turning to the schndule I find " 1800 aheep and lambs of mixed sexes" (described) branded i-3 on off face," besides certain horses. Thedced pretends to assign all the sheep described in the schedule, nnd also nil whi:-h during the continuance of the security given by the deed shall be on the station similarly branded. By itself that clause would have h-vi no effect in extending the security beyond the 1800 pheep. I thought, and still think, that thia was the intention of tlie parties, but as there is no apparent mistake such m a Court of -Equity could rectify, I must interpret the deed as it cxi-ts, Aiter many folios of elaborate provisions, 1 come to a clause in which Mr Pike covenants tliat he will during the continuance ot the security " keep properly branded with the brand mentioned in the schedule hereinafter written, all the said stock and the increase and progeny thereof, ani all stock that may during the continuance of ihis security be depasturing upon the said station or any part thereof, and will nos braud any stock depasturing on the said station with any other brand than that mentioned in the said schedule hereinafter written." Taken with th • parcels I am of opinion that this gives the < cfendant an equitsble lien on ail s.ock brought upon the station, to the extent of his security. I assume that the security given to the Messrs Thomas is a good security os between them and Mr Pike, tut they sire puisne incumbrancers to the defendant. I think that the mortgage to the ddxn<*'iiit created an equitable lien on all tho stock, at all events to the extent of 1500 head, and that it was therefore not competent to Mr Tike to dispose of the un branded sheep, by giving to the Messrs Thomas a right to make up their numbers from them, until the defendant's claims were satisfied I entirely agree with the jury that it was part of the agreement between the plaintiffs acd defendant that the deficiencies ii: (he number of shtep sold by the plaintiffs to the defendant should b« made up out, of tlie v.nbranded sheep, but there; was no abandonment by thc defendant of liis own prior rights, to effect which required some positive expression of opinion. lam of opioion that tlio defendant never abandoned hU rights under his Mortgage Deeds of lst December, 1868, and hi3 conduct throughout is consistent with an intention to fall back ou hia rights under the agreements with the plaintiffs only in case he cauld not stand on his own prior rights. The decision of this point, I think, subject to any omissions to which I may be directed by counsel, substantially disposes of the cause. With regard to tbe law of the case I need only say that such an agreement as that contained in the defendant's mortgage passes no interest at law, but in equity it creates a lien, in .'iccordfjnce with the principle? laid down in the well-known case of Holroyd v. Marshall. It became, under the covenant, the duty of Pike to brand all stock on the run with the H brand, and what is agreed to be done, equity considers, as between the parties, f.*r many purposes, to be actually done. If branded, the sheep would have fallen within the parcels of Mr Edwards' mortgage. When he took possession he was, in my opinion, entitled to deal with the unbrauded sheep exactly as if Mr Pike had done what he had contracted to do, viz., had branded them with the H brand. Upon the question of costs I sliall be prepared to hear counsel in Chambers whenever they are ready to address me. It is in this case a question which requires a good deal of attention. Mr Pitt appeared lor plaintiffs, and Mr Acton Adams for defendant. For remainder qf news see foui th page.

Jt is stated in a recent Argus that £1000 worth of cable messages from Europe were received at Adelaide in one day. It has been eaid by those who are acquainted with the daring characteristics and adventurous spirit of the West Coast and Otago alluvial gold-dipgers, that the ; discovery of a really rich auriferous field upon any part of Maori land, would at once and for ever set at rest the native difficulty. Give the diggers to understand upon something like good evidence thafc there is washdirt from which half an ounce and upwards of gold can be cradle' 1 , panned, or sluiced inside of twelve hours' work, and the " Native Contingent," the Armed Constabulary, and flour and blankets would soon become things of tbe past, and only subject matter for history. Yesterday afternoon a nugget of very pure gold, weighing five and a half pennyweights, was brought to our office by Mr. Aubin, storekeeper at Alexaudra. It was obtained by two Hauhaus at Pirongia, who brought it to Mt* Aubin, believing it was gold, but not knowing iis intrinsic value. The nugget, which is in our possession and may be seen by those desirous of inspecting it, has been tested, and tbe quality found to be worth £3 17s 6d an ounce. We relate the bare facts, without offering any comment. There is tbe nugget. There is the storekeeper who bought it at Alexandra and who brought it into town and placed it in our possession. There are the two Haubans, who dug the nugget up and sold it. Beyond this we know nothing, and can say nothing further than that such a discovery of alluvial gold in any part of the coiony outstde the boundary line of Maori land, would produce a large rush and a great pegging off of claims. — Herald. " Diogenes " writes in the G. R. Argus: In the Police Gazette of Victoria there recently appeared the following: — Richard Wilson Wardill, charged on warrant, with embezzlement. The Directors of the Victoria Sugar Company offer a reward of £250 for the apprehension of this offender." R. W. W. was a young man holding a high position in society. He had about £10 in his pocket. He had a wife. He had many pleasant friends, He was a fine and a popular cricketer. He often captained the first eleven of Melbonrne in the most glorious of tbe willow's triumphs. He was deemed the personification of honor and honesty. He in an evil hour forgot the distinction between meum and luum. This unfortuoate want of recollection on his part cost the company of which he was bookeeper, £7000, and him his life. When he regained possession of bis memory he found it such a disagreeable thing that he plunged—not in the waters of Lethe as he ought to have done had he been orthodox — into tbe river Terra, and made and end of himself. Loss of memory was caused in bis case by ahare-gambling. Let all who read take warning ere it is too late. A late issue of the Hamilton Spectator says: — Sporting men accustomed to coursing in the old country are fairly puzzled to account for the behaviour of tbe hares acclimatised in these districts, and there seems not a doubt of it that the Darwinian theory is receiving confirmation so far as concerns the manner in which animals aemetimes adapt themselves to the new circumstances in which they may find themselves placed. Sporting men in England would repudiate the idea of hares scampering up trees when pressed by dogs, bnt it wonld seem that " pussy " has learnt a leeson from our smaller marsupials, which she is not slow to turn to account. On Thursday half a dozen sporting men turned out witb a coupje of dogs to transact a little businese with the hares in ihe paddocks two miles from Hamilton. They had some capital runs, and enjoyed some novel experience. One hare, after affording capital sport, made a bound up a gumtree, the trunk of which was slightly sloping, and ensconced herself in a hollow branch fifteen feet from the ground. Those of her pursuers who had seen the trick were laughed to scorn by the rest, who declared that the dogs mast have lost the hare and treed a 'possum. However, one gentleman mounted upon the shoulders of another, and, armed with a atick, began probing the hollow branch, from whence were emitted squeals which were nnnmiatakeably those of a hare. But seeing was believing, and after a little perseverance the hare was poked ont of the smaller end of the branch at a different hole from the one which had served for entry, and was then canght by Mr Walter as she emerged. The hare scratched herself free, and fell to tbe ground, where the dogs were awaiting her, Another hare was started, and gave a splendid run of about six miles, including probably not less that 100 turns. This animal also finished up a tree, and was caught alive, but being a fine doe, in an interesting condition sbe was set free again without any further molestation. A third hare was chased until Bhe took refuge in the drain which supplies the borough dam, tbis being also a most unusual cover. Altogether the party secured four hares, which must be regarded as successful sport, seeing that such is the fleetness of the little creatures that very few dogs are able to get near them. We can vouch for *he correctness of tbe statements we have made as being true in every particular, and naturalists are at liberty to make what they can out of the facts.