DISTRICT COURT

Wairarapa Daily Times, Volume VIII, Issue 2409, 25 September 1886, Page 2

DISTRICT COURT

MASTERTON.—FRIDAY. (Before Judge Davy). McCakdle v Taylor. E. Tayler gave evidence to the effect that he enterad into an agreement to allow Mr McCardle to remove the stock up to July 15th. ° From May 16th Mr McCardle's son and a man named Lennox were continually removing plants from the ground to take to the. auction and private individuals. On July 2nd some plants were taken from the ground and sent to'Mr F. Gray's on the Taratahi. Since the 2nd July ho one has been on the ground to remove stuff for Mr McCardle, and he (witness) had never stopped anyone from removing anything from the ground. Mr McCardle came to witness: after Mr Cox stopped theremovil of the plants, and told witness that he and Mr Cox were robbing him, and told witness that he intended to pay back the mortgage and go for witness for illegal detention. Witness told MoCardle that

if hewould pay him hade the' £IOO he had fud for theplaee,and allow tus for improvement made, ha oould takatha pnpntr>ok MiOmJUmM ha would not have Bold the plaoe ifhe Subsequently MoQaidlo dhd wilbbm ;hatf the stock if ba would allow him to remove tbeother half . McCatdle want to witneaa and oared him'to sell some treae that were od flaw at the ahop doobs These ahrnha came from Btoncr V»< poua Nursery. Up to May 19th, 1886, witaeaa had not sold anything fan the ninneiy that Mr McGardle had left. The' total amount of aalea of treea and ahrube from the Nuraecy rinoe that date waa £l6. He had obtained a bur market value for treea aold; in aome caaaa mot*, .than they were actually worth. The things were in ind oondition, consequently low pricea were obtained for aome. Soma of the rhododendrona were thrown outside of the green-house by Mdhidb'i men aa uaeleaa.

Cross-examined by Mr Bonny: Was following the pxofeaakm of hairdreeaer up to March 10th, 1885, inMasteiton. Whan he took poaseeaion he waa _ continually working in the andnrd. Did not have the fruit bunneaa in Maaserton then. Himself and Mrs Taylor ware aliraya on the look out to aee the aort of plants they were taking away, aa they were taking treea they had no right to. Them waa. no inventory taken. It was impoanbla to take an inventory without he waa cognizant of it. It might have been when he waa asleep. He waa working in the garden the whole time. Had often told his laywer that he wished he had nothing" to do with Mr McCardle aa he considered he was being sharped. Mr MoCardle had' not been to aee him at the nuraety from sth June to September 9th.- Although he did not consider it hia property ha considered all that waa on the pUbe. he waa entitled to sell, aa he bought tha place subject to the mortgage; The lot he sold Lo Mr Collotto waa a heap of rubbish. He aold Mr Maunaell one or two dozen of lawaonianaa. He

refused to listen .to M'Cardle In July 1886, when he came to hia ahop; aa he had no busmen. He had a letter fr>un Mr Bunny, demanding the atock and value sold. He had planted 'out the winery atock ao that it would be leas in his way. To tha beat of hu knowledge he had kept a correct account" of the stock he had sold.

His Worship pointed out thai jt laid with the defendant to show what he bad done with the trees in the event ofits being proved that he had mo right to the nureury stock. Witness resumed, he was not willing to return to Mr McGaidle the rest of the nursery stock. His Worship said he did not understand that defendant intended to set up * claim to the property. Mr Shaw said the agreement implied that any plants left after July 15th. 1885, should be Taylers'. His Honor had not taken that view. He considered that defendant bad an action for damages if plaintiff left the plants after the date agreed upon but it did not give him » property right in the stock.

Witness resumed. He had not planted out any trees of that stock this year. His Honorsaid that it would be impossible to arrive at the value of the stock from the evidence. He said that if there was stock left on the ground, the only way to arrive at the value was Ij two practical men visiting it. . That, if nything would tend to bring it to an end. Martha Clayton Tayler, wife of defendant, deposed that she recollected'in May last year young McCardls and Lennox digging up plants belonging to Mr McCardle. She waa about* the grounds, but never saw young McCardle make an inventory of the trees. She corroborated, the evidence of last witness, ss to the interview between McCardle ind her husband.

By Mr Bonny: She eoold heir what was aid, bnt what Mr M&biidle jsaid was not altogether clear to her. She kept her eye on Lennox and young McCardle daring the time they were digging the tree*. George Grouschow deposed that he was a gardner. Had worked for Mr _McCeidle in June 1881. Had. been to the garden since He was there one day when McCardle and Lennox were removing the plants. He considered the plants if left as he saw them would be destroyed in a year. The apples he saw on the nursery last May he would not have at all. They had been neglected. By Mr Bunny: The apples wen on blight proof roots, not on blight proof stocks. That was very different. The former were not s» good. Ernest Pink deposed he was in the employ of Mr Tayler in. May, IMS. He saw young MoCardle and Lennox daily when working there. They put my little earth over the roota. He did not see them make a list of the stock. David Stone, on affirmation, said he sold nursery trees to Mr Tayler from time to tune. Cross-examined by Mr Bunny: Had bought trees from Mr Tayler, 6 dozen at 3d each. Tha market value was 6d, 9d, and Is. Had never sent anylawaoaianas to Mr Tayler to sell on commission. The court here adjourned to allow of a valuation being made of the nursery stock as it now stands. SATURDAY. The case was resumed this morning. The report of the valuers, Messrs Collotte and Gruchow, was read, which showed the value of the nursery stock as it is at present to be £84195, the value of that last year waa estimated at £212 9s4d. The valuers were examined as to whether the trees of the nursery stock that were healed up had drawn, nourishment from the ground. The case was concluded, and Mr Shaw ! briefly addressed the Court. He ventured to submit the case had been wrongly conceived. No evidence of detinue had been | brought forward. It waa stated that in June, 1885, the detinue commenced, and waa continued from time to time. There had been no evidence'bf refusal. It was virtually admitted no application had been made. "Hie letter from Mr Bonny was not a demand bnt a threat of legal action. It was the only, demand made 1 Before that letter there, was no evidence of a demand If His Honor decided that an action would lie and judgment waa given for any amount or equivalent, ha was instructed to say that his client would allow the removal of any stock remaining provided the ground waa left in older. Such an offer was not to prejudice the' case.

Mr Bunny eonaidered his caaa quite proven. Defendant had relied npon an" authority from Mr Co* to stop plaintiff** stock which d<d not exist, as proved by the evidence of Mr Cos. He reviewed the evidence brought forward of a demand for the poods. He submitted the action had bean brought in its proper form, and waa simply one of detinue. If McCardle's stock had been in defendants way he should have given him notice to remove it.

His Honor asked why if plaintiff had perty'intCTeet in the steck or 15 months to dapae without testing It. Mr Banny said it waa • question of season. The time had Kooe peat for transplanting. He submitted they had proveii value and the drawn I - His Honor mom isrt -judgment, and intimated that jtidgment would b* civea through the Clock of the Ooort onlfonday week. '