MAGISTRATE'S COURT.

Dominion, Volume 4, Issue 1171, 5 July 1911, Page 5

MAGISTRATE'S COURT.

(Before Dr. A.. M'Arthur, S.M.) NO FRAUDULENT PREFERENCE., AN ASSIGNMENT. IT CANNOT BE REVOKED. Re-served judgment was delivered-inHhe case in which A. D. Kennedy and Co., Ltd., wine and spirit inecchants, Wellington, as assignee of Jolvaßolurt .George Stnnsell, sued'the Official Assignee in Bankruptcy of the property of John Robert'Georgo Stanseli to recover the sum of £73.95. Id'., alleged to be due as balance of an account for ..£173 9s. Id.

Mr. 0. Beere appeared for plaintiffs, irr. W. H. D. Bell for defendant; and Mr. D. Jackson watched the proceedings for Levin and Co., Laery and Co., and 1. aad W. Young. The original defendant were M Gratn and Willis, solicitors, but at the first meeting'of creditors'it was decided that the Official Assignee should defend tho action, and M'Gfath arid' Willis were subsequently struck out as' defendants, the Official Assignee being' substituted. i Plaintiffs in , their'statement of claim, alleged that on May 10, 1911, M'Grath and Willis received on account of Jonn Robert George Stansell a sum of =21026 15s. 3d., being the bajnnce of purchase money payable to Stansell by Robert Dwyer on the sale of the , interest of Stansell in tho Railway Hotel, Lower Ilutt. On the snirio day Sfarisell, being indebted to the plaintiffs .in ..the.sum of .£173 Id., gave aa order in writing upon M Grain and Willis, directing them to pay plaintiffs .£173 9s. Id. The order was duly presonted to M'Grath and Willis, who, it was alleged, were directed by Stansell to pay, and they promised to pay tho sum out of the fund on Juno 5, 1911, provided the temporary'transfer of the license of tie hotel to Robert Dwyer was passed by ttic Licensing Committee. The transfer was duly passed, and plaintiffs received .£IOO on account, but the balance of the order was-refused, as M'Grath and "Willis stated that they had received notice of Stansell's bankruptcy. Hence tho action. \ - ■ In giving judgment, the magistrate said: Both parties in the transaction were bona fidei but the action gives rise to three points':--(a) What operates as an assignment; (b) the effects of ■ bankruptcy on assignment; (c) the question of traudu-lt-iit preference: As to'what will operate as an meat of a chose in an action it is clear that no special form of words is necessary. ' Any words will suffice which show a clear intention to transfer a chose in an action, or. which distinctly appropriates a specific portion of a specific fund to, or to the u.sfl of, the assignee. Regarding the effect of bankruptcy on assignment, his Worship said: It is clear to me that if the assignment be given for valuable consideration it is tinding at once on the assignor, and capnot be revoked by him. It binds also the assignor's trustees in bankruptcy, and any execution creditor of his. . . ■ As-to fraudulent preference, his Worship said that the party supporting the payment (in this case the plaintiff) must Bhow that it was not'made with the. view of preferring him. The evidence in the case showed that the debtor did not.give tho order to-give the creditor a preiertoce. The plaintiff must succeed as the assignment was a .valid one, and the subsequent bankruptcy of Stansell did not affeot it. ' . , Judgment was accordingly given for the amount claimed.'and-the usual costs to be paid out of bankrupt's estate. Leave to appeal-was fixed at ,£lO 105.. , ,

PROFESSIONAL 3 TEE CLAIMEP..Tames O'Dea, architect, of Wellington, claimed .£3 3s. from Mrs. Honora Wholati, botelkeeper, of Wellington, alleging thjat the amount was duo for professional services rendered in connection"• with the alteration.to'a staircase at-the White. &waii Hotel Cuba Street, of which defendant was licensee when the alleged contract was entered into. ■ ■. ■'.'■" ,7. Mr. I' , . Ayson appeared for'the-plain-tiff, and Mr. E. J.-Fitzgibbon for the defendant. , • The defence was a denial that any agreement had been entered Jnto.. _ . ■ After"' hearing evidence the magistrate gave- judgment for defendant without costs.'. '.■".' ■ \ ' ■ , • -UNDEFENDED CASES. .Judgment by default was given for plaintiffs in tho following undefended Fieid, Luckie, and Toogood v. Michael Lane,. £1 Us. 9d., costs 95.; E. Rawsnn v Joseph Croft, costs 165.; Tlutt County Council v. Mrs. Alice C. Stevenson, Os' -id., costs 55.; Drapery and general Importing Company .of New Ltd., v. Stanley Barnngton, £7 19». 10d... costs JEI- Bs. 6d.; John Jos. M'&rath and others v. Imlay Saunders, .£6l Vs. 3d., costs M 2s. 6(1.; tho Commercial Agency Co., Ltd., v. Percy Coyle, M 7 7s. 1 td., costs M 3s. 6d.; Smith and Smith, Ltd., v. Arthur Eeade, ,£3 19s. 6d., costs 10s-; Boss, and Glendinins, Ltd v. Gμ. W. Taylor,-.£12 17s. 10d., cos s .61 10s. 6d.; Jos.- Henry Goyder v. Alexr. Parkpr, .£2OO, costs .£8 16s. j Bates and Lees v. Harold Greville, £8 6s. 10d., costs JEI 3s. Gd.; R. Hannah and Co., Ltd, v. Florrio Xewnort, £1 Is. 6d., -.costs 10?.; M. P. "I T. Hill and Sons, £20 lfe; 6d., costs M 14s;;- Bernard Hall, as assignee of G. M. 'WiUiams v. Samuel Swam, .E3 Bs. 9d:, costs 10s.; same v. H. Pilchei ■ £2 is. Bd., costs 10s.; Dalgety and Co., Ltd., y C E. Newport, ,£2G 10s. 9d, costs £L

JUDGMENT SUMMONSES. Rcinald Brico was ordered to pay £1 3s 3d. to Hates and Lees on or before July 18, in default to undergo seven days detention. . ~. No order was made .in the case ot the Wellington Gas Company, Ltd. v. Leonard Jones, a claim for <£1 05..6 d. ■ NOT SUFFICIENT EVIDENCE. (Before Mr. W. G. Riddell, S.M.) Eesorved judgment was delivered in tho •ase in which John Vincent Dyke, livery '.table proprietor, Thorudon Quay, Wel--lin"ton, sued Samuel Allen, stable manger °3 Davis' Street', Wellington, to recover tho s :im of £Yl 9s. 3d., alleged to be due by the •defendant to the plaintiff for moneys received bv the defendant as manager on behalf of tho plaintiff between January 30, 1911, and May 15, 1911, and not' accounted for. At the hearing, it appe- '''-That there had been a previous acti Allen v. Dyke, a wages claim, which'. 'J.od previously set up as a defence is action mentioned above. :"In this ca; ' .id his Worship, I am satisfied tbao-.-wi'ore plaintiff can succeed, he must show by a preponderance of evidence that the account-book, which is produced and in which the' entries are made, is a correct record of all the amounts received and paid out by defendant. Tho book itself shows tho entries to have been irregular. On the ■whole, the evidence is not sufficient to show that plaintiff is entitled to .the amount claimed, though he may be entitled to something. Plaintiff must bo nonsuited."

No costs were allowed. Mr. E. K, Kirkcaldio appeared for plaintiff and Mr, E- C. Levvey for defendant.

SALE OF A BUSINESS. Flora Emily Craig,- etationer, of 59 Vivian Street, sued Anno Trillo, of 69 Vivian Street, to recover X'lo damages, alleged tr, hav-i been sustained by Teasou of defendant not delivering certain goods on April 28, 1!)11 There was another notion in which Charles Seymour Trillo, husband of Anne Trillo, sued Win. Craig, husband of i'lora Emily Craig, to recover .£2O, balance alleged to bo duo on the sale of stack-in-trade and fittings. Mr. 11. Machell appeared for the Craigs and i\fr. E. J. Fitzpibboa for the Trillo=. Tho cases were taken together and, after partial hearing, were adjourned for a week. CLAM FOR COMMISSION. ■The New Zealand Farmers' Co-operative. Distributing Company, Ltd., Allen Street, Wellington, sued (ieorge Dome, farmer, of I'araparaumu, to recover MD' 10s., alleged to bo duo as commission on the sale of a farm property of defendants situated at Johnsonville, comprising 123 acres, and sold to W. 11. Bramley at the rate of .£2O per acre, the commission claimed being at thn rate, of 5 per cent on the first MW), aud 2J per cent ou tlie balance.

' Mr, M, Lucido appeared for plaintiffs, and Mr. K. S. Staltord for defendant.

When pluliititFs' case was closed, Mr. Stafford stated that, before going into the defence, he would like to raise -a point, which was something more than a nonsuit point. In fact, he submitted that his client was entitled to judgment on the ground that the contract of agency was not in the power of the company's objects. Counsel quoted numerous cases in elaboration of the point, and after Mr. Luckie had replied, his Worship intimated that he would note the point, and heat the' defence. The defence- was a. denial that any authority to act in tho manner which he did had' been Riven to the agent, who was lo arrange a lease with right of purchase only. Decision was reserved.

POLICE CASES. CHARGES OF INSOBRIETY. ■ (Before Dr. A. M'Arthur, S.M.) Annie Winifred Dunn, an elderly woman, who pleaded guilty to a charge of drunkenness, was declared a habitual inebriate, and was sentenced to a month's imprisonment. For procuring liquor during tho currency of a prohibition order, the same accused was convicted and discharged. ■ James Cocker, charged with drunkenness, was fined 205., with the option of seven days' imprisonment. Two firstoffending inebriates were convicted and discharged. THE AFFAIR IN POLICE CELLS. BENCH'S COMMENT. (Before Mr. W. G. Eiddell, S.M.) "Accused went round drinking on Friday night.. What consideration had lie for his wife then?" This was one of tho remarks made by the magistrate yesterday in passing sentence on George l'earce, a wharf labourer, who on Monday had been convicted of assaulting Constable. Gordon while the latter was in the execution of his duty. ' At the time of the. conviction, his Worship had intimated his intention of sending l'earce to gaol without the option of a tine, but Mr. P. W. Jackson put forward/, a plea .for leniency, on account-of the fact that the prisoner's wife was in a precarious state of health at the time. Jlis Worship" had then instructed the police to infinite- into the matter, and tho report furnished yesterday was in support of-counsel's statement. The magistrate Niifl that Pcaree had apparently thought very little-of his wife, until ho .had got into trouble. On account of the plea put forward, however, his Worship was prepared to inflict . a monetary penalty, out he doubted if its effect would be any less. Accused would l)e fined £o, in default 11 days' imprisonment. Mr. 'Jackson: Would your Worship bo prepared to read a letter I have just received from accused's wife? The Magistrate: No. In imposing a fine, I merely do-it on account of the strong plea put forward for tho wife, and not from any consideration for the accused whatever. Mr. Jackson: Would your Worship allow a little time? The Magistrate: Yes; twenty-four hours.