SUPREME COURT.

Southland Times, Issue 1197, 18 January 1870, Page 2

SUPREME COURT.

JANtTATtY 14th, 1870. cmr. sittings. "Before His Honor Judge "Ward and the following jurors : — Messrs 'G-ondwillie (foreman), Barham, M'CWtie. M'Chesney, Berson, Peters, Tnllo""h, Wall^e, "Rosa, Yallanee, Hannah, and Knine. Mr Gr. Saunders was called, but challenged by plaintiff's counsel. MACKINTOSH V. FUA.WCTS. This was an action to recover tlie sum of £850 da^a^es for alleged breach of contract. Mr M*<» d^nalil conducted the cisr for the plaintiff, Mr Harvey that for tlie defendant. Th« issues, briefly stated, were — Did the defendant neglect to construct a certain boundary and sheep-proof fence in terms of lease, and if so, what damages thence accrued by the straying of cattle, &c? Mr MacdonaM, in openinsr the case for the plaintiff, described the items of the claim as follows : — "For extra stockmen. £100; horsefeed, £30; cattle lost. 11 bullocks and 1 cow, 6127 10s ; sheep lost, £100 ; general deterioration and lo^s on cattle, £450, and stated that the defendant admitted the deed of lease, but denied all the other material allegations. The plaintiff was a farmer at Otautau, fho defendant a merchant residing in Melbourne, and the holder of land adjoining the plaintiffs. Certain representations made by Francis indnced Mackintosh to come down from Victoria in 1866 and inspect the land subsequently leased. The plaintiff then saw that it would be of no use to him unless fenced, and in consequence on his return to Victoria obtained the insertion of a clause in the lease then executed, binding the lessor to fence along a particular boundary line. On returning to Southland, towards the end of the same year, the plaintiff was surprised at not finding any fencing commenced, and spoke on the subject to Mr M'Pherson, defendant's agent, who replied that he had not received instructions. Some time elapsed, frequent applications were made by the plaintiff to Mr M'Pherson, and ultimately, in 1867, the fence was commenced, but not completed so as to be of use until January, 1868. Early in 1567, on the faith of the fencing being speedily completed, plaintiff purchased cattle and sheep — the former being nlaced on the ground on the 14th January, 1867. "For want of the fence, the services of an extra man and three horses wereneede.d, and from the constant driving required to overcome the natural tendency of the cattle to wander westward, their condition was much reduced, and damage sustained not only to the amount chimed, but even bevoud. James Mackintosh, the plaintiff, stated that he leased the land in Julvlß66, after having seen it nreviously in April of the same year. The lease was executed in Melbourne. He came down to Southland the second time on the 13th December, 1866, and spoke to Mr M'Pherson, defendant's agent — (Tn reply to his Honor, Mr Harvey said the agency was admitted) — on the subject of the fencing, but he had received no instructions. Some time afterwards tenders were called for, and a few chains of four-rail fence erected fr^m H'd'on. Bush towards Jacob's J?iver. The work was then stopped. "Witness in speaking on the. subject to Mr M'Pherson, gave him all the information in his power. This was in December, 1866 A fence with top rail and six wires was afterwards agreed to. Tor several months nothing more was done. Tenders were ultimately called for in April, 1867, and the fencing recommenced in May following. It was so far erected as to keep stock by January, 1868, but was not actually completed up to the present time. Purchased cattle in January, 1867, two mobs of imported ones, to the number of 360. The first lot, bought at ship's side, cost £9 10s, and the second lot on the ground, after they had been about a year landed, at £10 10s per head. The cattle were in good condition, were taken on to the run, but would not settle. They kept continually straying in a certain direction, which the fence agreed upon would have prevented. The constant driving about, both destroyed the feed and kept the stock from fattening. They frequently travelled 15 miles away in one night, and ultimately twelve of them were lost entirely. Only a few of the herd had fattened sufficiently to be fit for sale for slaughter. In October of same year, G bullocks, pretty fat, were sold at about £14 per head, and in the following month; 6 more stores, at £9. In the following January, 1868, 120, the pick of the whole herd, were sold at £14 103 per head, with the right of run for six months, and shortly afterwards the balance were disposed of at £10 10s, these not being in condition. Had the fence been up, the whole lot should have been fattened off, most of them at nearly £16, before that time, but by keeping them so long loss had been occasioned, not only by their not fattening, but by a decline in the value of stock taking place in the interval. 270 sheep were taken on to the land in March, 1867, and loss had been suffered in them from the same causes. They did not thrive through being driven about. A number died, and about 300 were lost by straying. Plaintiff had not undertaken to superintend the erection of the fence himself, and was not responsible for the delays. He had merely promised in a friendly way to give defendant's agent what, assistance, in the way of advice, he could, so as to expedite the work, and also undertook to inspect it when finished, payments being dependent on his certificate. He had been continually complaining to Mr M'Pherson about the slow progress of the work, and the loss he was sustaining thereby, and ultimately wrote to Mr Francis direct about it. Mr Macdonald called seven other witnesses in support of his case. Amongst them were the stockmen who had been in plaintiff's employment during the period in question, and several

experts who spoke as to the time cattle should take to fatten under certain - circumstances, and the difference in value at the periods na^ed. Their evidence was generally corroborative of that given by plaintiff, the only new feature being that the cattle had been inoculated under the impression that j pleuro-pneumonia had been amongst } them. The Court adjourned at about 6 p.m. until 10 next morning.