SUPREME COURT-CIVIL BUSINESS

Otago Daily Times, Issue 275, 6 November 1862, Page 5

SUPREME COURT-CIVIL BUSINESS

Wednesday, November sth. (Before his Honor, Mr. Justice Gresson.) His tiouor intimated that, in accordance with ••> suggestion oi the Superintendent, the Court would not sit on Monday next, that day being to be set apart as a public holiday, in commemoration of the 1 mice ot v\ ales having attained his majority. Kichaedson (Superintendent)'!;. Paterson.—Mr Howorth (ior the plaintiff) applied to have this special jury case j,ut at the bottom of the common jury cases. if.! ?w d?K" be n'?" y- if the **» *> be taken as ■ the last of the special. M ali bHm 3 °bJect '^ these repeated postpone ments. Ihe fact ot tfi« action pending had been held up as a reason why tto defendant was ineligible for a political othce. Bu, ; ie was in office now," as one 1™ and ' ie decision ought, in fairness, not to be delayed. .'lie Superintendent had not 5w i!"« nA aP^,catlo P for th* postponement; and there had been no rea. reason for it urged. ™n,£ c ge rerr,:-v; od that the application was made upon persona grounds Mr Gillies said lh ere had been the most ample time for getting up the case. It was gone into in the I loyincial Councii and the evidence was printed ; it E/^fF-^ l* Df Kui *ht' yQdthe evidence there was again printed, in fact, the whole thing JfL,6^ was £7 u' d be »ny reason for postponement, the earned counsel hnvmg been officially concerned in these proceedings. Mr Howorth said there v. as not a word of force in what had been urged. The ruperin tendent was anxious as a matter of -üblic dutj, that the case should be tried. Mr G' ; es t dy slid that he (Mr Howorth) was in office vy ; m the matter originated I rue, too, that the defendant was now a member of tiie lixecutive Couucil: but the Council had advised as a b-dy that the case should uot be withdrawn! Lie defendant could lose nothing by the postponement. It was said that die Superintendent did nut ask tor the post pom meat;-but since the Crimiual ftittiugs commenced, he had not had an opportunity ot seeing the Supeiiutendent, or else hi-s Honor Mould no doubt have ©une down and made the application himself. The obstacle was, that Mr Richmond, who was to have conducted the ease for the plaintiff, had been appointed Jud«e of the Province. Ihe Judge did not see how the defendant could be prejudiced by the ca&e being put at the bottom ofthe common-jury list.

Mr Gillies said if was a matter of character for the defendant. The action was brought upon the advice of the learned counsel for the plaintiff, und in the original pleadings there was a disLiuct charge of fraud. °

The Judge : There is not now. Mr Gillies admitted that the pleadings had been amended.

The Judge said -t wa? a pat:nt fact that the defendant was pressing for trial. The state of the business prevented the case comitig on now ; and !.e did nots.e that prejudice could result from what was asked.

Mr Gillies : There is the political use that may be made ol the charge. The Judge did not see that much of that could arise.

Mr Gillies said it was calculated that tliere would be an election of Superintendent before the nine at which the case would come on, i- postponed. In that event, the pleading.-, would have to be revised ; and iv addition, a witness was daily expected from the JDunstan on subpceaa. Tbe Judgesaid it was extremely unpleasant to force a case, when counsel urged that lie was not prepared, aud by puitmg v as tlie iost, no other case would be displaced, and the defendant would not, suffer. Ale Gillies would only ask further, that if,'because ol the shifting, postponement to the next sitting became necessary, the defendant should be allowed the expenses caused by acceding to this application. The .Judge ihougho that would be ouiy reasonable : and tlie case was then ordered to be placed at tne bottom of the lut. DISPUTE AS TO DEPASTURING CATTLE. Williams v. Anderson. -(Special , ury.)— Mr Gillies for the plaintiff'; Mr Howorih fbr the defendaur.

Mr Gillies said that this was a new class of case here, but it might become a numerous and important oue; and although the amount involved was not a large one, the principle was the same. The plaintiff/ Peier Williams, in 1854, kept an hotel at Port Chalmers; and the defendant, John Anderson, was theu a run holder and stocKowner at Biueskin. The declaration was that in or previous to 1854, the plaintiff delivered to tiie defendant, a cow and a heifer calf, to be depastured upon his run, with increase, upon the usual terms for depasturing ; but, in fact, the cow was deluded in 1852, and tne calf was dropped about the beginning <jf 1864. There were other allegations, all the main ones being denied by the defendant; and the 3um sought to be rerovered for the non-delivery of the cow, heij'er, and increase, was L4OO. The short h&£ for thu ] 'aiutiff was, that the defendant, gave a 'Jceipt, in lijl, for the cow, stating that she had beeu taken t o pasture for an indefinite period, at t:ie usual cha:-: ; aud that in 1854, he distinctly admitted the exi-.l nee of the calf. Tnere were dealings between the ;.,aintiff arid the defendant, with a settlement ~ iouc yearly; and when thj last was made, at the end of 1850, tnere were four cow-, admitted to be on the run. Subsequently. ,ye plaintiff presented an account to tue defendant, who, instead of paying it, said, "uh! let it go gainst the rent tor the cattle." The plaintiff had d k astured with Messrs Teschemuker. Pen-ens,- Lon act, William Gray, John Wilson, and others; and rrom this experience, he stated that the usual charge for depasturing was 10s a head for all over six months old ; and tha: the duty of the run-iioluer was to see that the stock was branded, and had ordinary care j-dven to them. He supplied the defendant with a brand. In 1857. he was told that the four cows had each a calf, and lie asked tlie defendant if they had beeu brauoed. T :i e defendant said that they had not, for the '..rand -as too large until the calves grew bigger. T..-J defvidaut did,in 1835 or lssa. give notice to the plaintiff to remove the catt;e, and tiie plaintiff twice made arrangements for receiving them; but they ;vere not delivered to either of the appointees, and tne defendant had never given any reason for rd'using to deliver in February, ISUO, when formalJv demanded.

Mr C. W. Tesehemaker said that formerly the usual depasturage charge was iOs a head ; but now, thirds of the increase was more usual, and was always more beneficial to the run holler.— By Mr Howorth : He certainly thought that if he took charge of cattle he .as bound to brand them, and the increase ; but not .0 break them in, unless by special agreement. He nad lost cattle put upon his run, but had never paid tor auy. If cattle died from "tutu," they could often not be found. He cautd not say who was responsible, the owner or tiie stock-holder, in case cattle died from tutu. He had, at present, a dispute with the plaintiff" as to three cattle lost, and supposed to have died from tutu. Mr Howorth : Suppose a heifer to be put upon a run in 1852, what would be the increase up to 1857 . Mr Giilies : You must put it a cow, for a cow was delivered. Mr Howorth: Well, then, suppose her barren, .what would be (A roar of laughter.) Several questious were put to tlie witness as to increase ; but he aahered to a statement made during his examination iv chief, that four cows and four heifer calves, from 1857, might be certainly taken as increased by about 30 up to the present time. Frank A. Orbell said he was a runholder and dealer in cattle. The usual charge for depasturing was 10s a head; the runholder taking full charge ofthe cattle —attending to them properly as if they were his own. If near bush, he was supposed to see that they did not get into it; or, if they did, during winter, to see that they were got out at once. The runholder had also to cat and brand the young stock; and to re-dc- • liver them in his stock-yard. Four cows and four heifer calves, from 1857 to the present time, would increase by 36, under favorable circumstances; and a loss of five or six head, by death and other casualties, would be a fair allowance. Mixed cattle (not including calves under six months old) were now worth from LO to Lll. a head. In 1860, they were worth L 6 10s to LB.— By Mr Howorth : He knew there was bush from the Heads to Dunedin and away to the Flagstaff; it might be tea miles long by six or eight rafles wide. Cattle that got into the bush generally got wild. The owner of a run close to bush sbould prevent cattle getting iuto it by doing his duty—by having stockmen to look after them. If he could not keep them in that way, he should not put them upon his run. it would be rather absurd for a runholder to keep a stockman to ride after and keep safe a single cow put upon the run on terms. The Judge said tnat all this evidence had nothing to do with the issue, which was of failure to deliver. The defendant's run 'might have been difficult to manage, but thafc did not affect his legal liability. Win. TRand-di stated that when he went to take delivery, on notice from the defendant, the cattle W; re not ready ; and subsequently he was compelled to give notice that he could not receive them. Air Howorth submitted that there must be a nonsuit. In Chiity on Contracts, it was laid down that it was not,ihe uuty of a bailee or agister of cattle to re-deliyer them : tnat ha was not answerable for any casualty that did not directly result from his own neglect. Lord Elienbcrou ; h had drawn this distinction between an agisM and the case of an innkeeper or liver*-stable bte.-rtr. 1 he Judge said that t. < i an argument was wholly inapplicable to the pitting*, which were that the cattle were on the run merely on sufferance, and had never been legally delivered tq the defendant.

Mr Howorth stats i the ease for the defendant, w-hich (acco ding to the evidence of the defeudant.V son and another witness), was that after the affair with Kandail, the plaintiff appointed one King, who had died, to receive ihe cattle. They were sought for, for weeks, and notice was given to King to come and receive. He came, but refused to take those that had been found, saying that he would only receive when the defendant had found them all and had given notice of a day for delivery. Afterwards, he refused to leceive at all, unless the cattle were sent to his own place, six or seven miles off. Portions of the cattle we c got m, ni twi (,r i^eelot-. more than once; but so much bush being near, and the run having been at this time converted into hundreds, so that many cattle came upon it, the defendant's agents (he having gone south to a new sheep ruu) could only get hold of the cattle after great trouble, and could not keep them m the stockyard, out of which, being wild, they broKe. It was also set up that the original arrangement was only that the defendant should do the best he could, without being really responsibleand it was stated that there was plenty of tutu on the run, and that cattle belonging to the defendant were notunfrequentiy found dead. The Judge briefly summed up, leaving the jury to decide whether the defendant had used ordinary and reasonable care as bailee of the cai tie; and if not the amount of loss sustained by the plaintiff by reason of non-delivery. Verdict for the plaintiff: damages, L2OB. The Court rose at half-past five o'clock.