DISTRICT COURT.

Colonist, Volume III, Issue 217, 18 November 1859, Page 2

DISTRICT COURT.

Tuesday, November 15. ~ Before his Honor W. T. L. Travers, Esq., Judge LVMdorev. W. Mnier.'—An action ,on a Bill o Exciierigef6r£B4-i6s. } '.A ..... .........y YThe.aqtion was'defended upon two counts, the first' being' that' the bill was accepted'for the accommodation ofR..P. .Outridge, and that no consideration had .been received j the second w*as, that the plaintiff; knew that'ths bilfw^s for such accommodation. ■'..• - '-■ A - .: ■; "?

His Honor could- not see any evidence to ,pi*oye* the. second count in the* defence; it Was 'evidently one of those cases where accommodation had been given from kind motive, but ifpersons did sftch things; they must rabide \by the fconsequence *of their goodnature. .There was; nothing to exonerate Miller ft*ooj hehig liable. judgment for ;jMu^iofc .-£84165. with interest and costs £5 Js&:>•<-_;.: . . . :

J. Beit v. Clark.~A4' our J? e<* tiii n-a^t ffOuvtday, plaintiff paying adjoVnnieftt $&•*•'' '* ' 'Z' C. JElliott v. John Kerr.—This was 50 action tp; recover the 'value of fifty-nine wether sksp^ longing to ■'.t^e;pla^n^ff,.:w^hfthe defendant was alleged to ha*>e appropriated't? iffiiYpyrn use,f a}so £15 wool of the saihe.' V..,' * X.> ''Z -^ZZaZ^ i ■■"'flfc 4-d^ois, for the .'plaintiff,'" statedf Jsat,t*he plaintiff and dofeodan.t bad land at Stoke, which

adjoined, ahd the sheep thereon getting mixed, the defendant drove some sheep of plaintiff's to the Waimea and had them shorn. There was no positive knowledge as to Ihe number taken, hut from the musterings that^had taken place,. 59 - were, found short, and it' w,as reasonable to suppose that "to be the quantity taken away by defendant. The | plaint was that there was no conversion, but the fact of driving them away and branding them, he conceived, was sufficient to prove that point. H. Ilargreaves sworn: I manage plaintiffs business. I had a number of sheep on Thompson's run in September last; the defendant occupies adjoining land, and keeps sheep there also; they were in the habit of mixing. In consequence of information given me, I went up the Waimea one Sunday to Rochet Island, and saw some ofthe plaintiff's sheep there and some of defendant's mixed together; Thompson was withtiie; I-think there was ..something about 30 of the plaintiff's sheep; I have not seen them since. Kerrcameto my shop afterwards and said he had four or five of our sheep, and that he had clipped them, and branded them, he has never delivered'thetri or the wool to me; he had no authority to take them away and clip them; I should think the value of themwas r3os. each; I have killed for Mr. Elliot for nearly twelve months, and in that, time have only lost 7 sheep previous to the present loss. Gross-examined by Mr.: Kingdon: I ordered some 16 sheep to be turned Out of the paddock, being too poor to;kill^ I saw them afterwards on. Roche's Island; I mustered a second time in consequence of Mr. Ingham sendingme word that some of jny sheep had gone -.into defendant's paddock, and I at bnce sent to have them removed ;^ Mr. Kerr did hot come to tell me the sheep had mixed.

- ;T; Thompson sworn: I kill for Mr. Hargreaves; about/the 23rd September last! Went with Hai*greaves to Roche'sjlsland; I did^not examine all the sheep; I saw there about a-#ozen I coujd swear belonged toplaintiff. The run had been mustered theplay berbre.the sheep were taken; we had received some hew sheep the day before, branded with, a heart, and they had mixed with Mr. Kerr's and we got them back again except about half-a-' doze^n; Kerr ; took jiis sheep away the next day and a seeondTmusterfr was; made a few days after; vthe -halfLdozenf^e left behind us were some of *fthose we'saw:hri Roche's Island. '* x Gross-exaniihed by Mr. Kingdon: I recollect JKerr talking to'.Hargreaves in his shop, Kerr said ' he would notMow us to draw the sheep out without', his leave; If went and drafted them out, it was about a.week.or two before Kerr's sheep went to thef%aimea v I never had notice more than once or twice about the sheep from Kerr; he threatened to impound some of my own; Hargreave's sheep ;gotinto Kerr's paddock a few-times; I have not found Kerr's sheep come in Hargreaves's. I turned some poor sheep out, three lots, 16,8, and 4; they mixed with Kerr's; Mr. Ingham told me ot it the next morning, and said he thought there. would be some bother about it.

* : Some questions from the Plaintiff's counsel as to whether the Court would require evidence respecting the taking away, being answered in the negative, Mr. Kingdon said he would admit the taking of a certain quantity. H. Barnett sworn: 3 or 4 days after the sheep were taken away, W. Hargreaves and I mustered the whole run, and found 125 sheep, that is all we could find; Kerr came to the shop and said that he had shorn four Or five, and that-we could get them.. Mrs. Hargreaves and myself were the only persons present; that was about a week after they were driven away. Win. Jones sworn: I am book-keeper to H. Hargreaves; I keep account of the stock; the run was mustered by my" orders, to compare with my stock; there ought to have been 193 sheep on the run, but there were only 136 including 11 that were with Blick. :

Cross-examined by Mr. Kingdon: On one occasion we lost 20 or 30 at one time ; Mr. Powick lived at Grove Farm at that time; I cannot say if he was ever charged similarly. „ E. Cresswell sworn : I had to shear-some sheep for Mr. Kerr about September last, some of them came from Grove-Farm and some he had up there.; I do not know if there were any sheep belonging to Mr. Elliot there; I saw Mr. Ke.rr branding them after they were done, it- was a triangle ,brand.,

Mr. C Elliott sworn: I have a: number of sheep in the charge of Mr., Hargreaves, they run upon his land at' Stoke. On my return from Canterbury Hargreaves told me that Kerr had driven away a number of my sheep; a day or two after I rode to Kerrs;house about the. matter.; he then said they werewithhisflockjhe had driven them away because there was no way of drafting them there, biit that he was willing to pay. me for the.fleeces; on enquiring how many he had shorn, he said he had kept no account, there might have been four or five, afterwards he said there might have been more, he had put his brand upon all he had shorn and driven them back to his own 'rah, he also said that I had better look after them as he was sending some to Collingwood; he said nothing about haying kept the wool separate. Crossrexamiried by Mr. Kingdon: Kerr did not offer to go to Grove Farm aud draft them out to me and give me fieeces'for each sheep,that he had shorn, his first remark was that lie; would pay me for-the fleeces, but nothing was afterwards said about it by him. . . Mr; Kingdon for'the deferice said be would prove it to be a very different case to what had been made out. His client had been aconstant sufferer from the circumstances connected with this case, he had to put up with annoyance, trouble, and abuse yet he could prove in the case before the Court , that two distinct .messages had been sent to Har- j greaves, who had always been a constant sufferer from losses of sheep, hut nothing of this kind was thought of until Grove Farm became the property of a rival butclier. , . v •H. Ingham sworn: On the 9th September there was a muster in Mr. Kerr's paddock to separate the sheep';' a day or two after I saw '13 stray sheep on the bank of the river, they joined Kerr's mob ; I believed tliem to be Hargreaves's, and went up to tell them about it,* J. $olomons: also attested to haying called on Hargreaves'more than o;nce 'telling him how many sheep'of his they 'had'and! he had/said Bor 9; Har- ; greaves replied that therefmust bef3o orinore. Mr. "G." Ridings'proved former transactions .with Hargreaves extending over a year and. #.half, and during that period .there, was a deficiency of over a hundred no.t accounted for, it was! supposed they had gone over the hills to the Wairau. . A/Scott j-iiiw a tnob' of sheep'at BliekV driven from, the hills, there were'some-strange Ohes that the latter was about to drive to the pound ; life told Blick from the brand he -thought: they-belonged to-Hargreaves;; there were 50-or 100 of them. John Kerr sworn: I drove >sheep. from Grove Farm to Waimea'West; I.had som<j strauge ones amongst them, perhaps' five or six; 1 previous to my moving them at all, I sent toHargreaves. On the night before the sheep* were, driven away, I saw two n?en dividing sheep in the field; they drove a good many ,on the liills;, above a hundred I should think. After I'got the sheep to Waimea -West, in consequence of the message, conveyed by my man,*Hmd the sheep shorn.and dipped. On my return fromf Massacre Bay, my man told me • that Hargreaves had been saying .-that, I had his sheep, I went to his shop about it. I afterwards saw Mr. Elliott, and said I would go with him, and deliver whatever sheep were his and pay him for the fleeces ; his slieep were" in very bad condition 'aiid not fit-for: killing I have since mustered them and find p of Mr. Elliott's, f .MGrSs's-examinedby }lv. Adams: As I went up I noticed Mr. Elliotts fcrani ii looked like ahorse-' shoe, ii Wan cIW brand* I'taixed- ifee.^pl with my own. -. ... :.; Mr. Adams then closei*! his ca&rjjy; remarking i upon the difficulty that the x circumstances presented"of ascertainingcorrectly 'ther arSnan^ Q \ "I 8; .client's claim; no notice' had be;eh:given or the number ojf shs^p; taken away • or;tlfc'quantity of wool,',bufc' he thought .from what had been .elicited; i in evidence that rthere!\va^i'ia_fr : olai^ ag3ss* the J for the ftumber illatf^as found,' to Ahe1' wanting.* •■'--•-':" '"'"' ; .^ < <;yyy.iyyy jf His Honor said that it was evident there was i soj^e ill-feejin^ existing between the parties, and

Mr. Kerr was very neglectful in not giving Mr. Elliot a clear account at the time of his calling on him. ,He could not however, suppose from the" ' evidence of Mr. Ingham that Kerr had as many -sheep as the plaintiff would shew. The evidence yaried between 9 and 20 sheep, but 16 had been specially named, and it would be for those that he must give a verdict.

Judgment for 16 sheep (£24] and costs. D. Moore v. R Aitken.—This was an action to recover .£B7 2s. fid. being balance of sundry bills given by the defendant as security for bills given by Alexander -Aitken for goods bought.. The security beingrequired by the plaintiff in consequence .of the defendant holding a warrant of attorney upon the stock of Alexander Aitken. Two of these bills had been endorsed by Moore, but having been used by R, Aitken he refused-to endorse the rest. •; ■-,■ :.. ;,-,- •■-■■'■ :x ) : k '.■•>': ■' ■ :-.;;'..:

His Honor said that the warrant of attorney was j. in security for an original; debt, and -therefore Mr. Moore should place the defendant in theposition of being able to come upon his father for the amount to which he had become liable, and this could be done by endorsing the bills without (recourse. ; . : ' ■■.-■'-■ v:, .■•■.■;.■'''.

. Mr. Moore agreed to this rcourse, and the case was adjourned tillFriday (this day). ' E. Pritchard v. G. W. Schroder.*--For £%5 ls. foi* goods, sold and delivered, after deducting a credit of £8 os. lOd.

■;.-, Judgment for the amount and costs £4135. Eden v. Saunders.---.An action to recover £33 6s. 3d. for wheat supplied to defendant. Thisaction arose out of a dispute concerning the price of wheat sold by plaintiff, who affirmed that the price agreed upon was 7s. per bushel; the defendant contendedthat it was 6s. 6d. cash for part, and 6s. 9d. for the remainder at 3 months.* . '■' :- -

: After hearing evidence on both sides, the Court gave a yerdict for, .the 'plaintiff fer,.' the -amouftt claimed, costs £6 4s. ..