MAGISTRATES' COURTS.

Globe, Volume II, Issue 103, 29 September 1874, Page 2

MAGISTRATES' COURTS.

CHRISTCHURCH. Tuesday, September 29. [Before C. C. Bowcn, Esq., R.M.] DRUNK AND DISORDERLY. John Wilson, Ann Osborne, and George Brown, were each fined 20s for drunkenness. ASSAULT. Samuel Clark was charged on summons with assaulting his wife Clara Clark. Mr O'Neill appeared for the complainant, and Mr Thomas for the defendent. These parties are living separate, and the evidence proved the assault to have been very trivial. As the complainant showed by her manner in the box, that she was not in very great bodily fear of her husband, his Worship dismissed the charge, on defendant's promising not to go near his wife again. WILFUL DESTRUCTION PRIVATE PROPERTY. Alice Moore was charged on remand with this offence. Mr O'Neil appeared for the defendant. Complainant, cross - examined by Mr O'Neil, stated that defendant threatened that she would take his life. His Worship explained to Mr O'Neil the circumstances of the case when the parties were last before the Court. He (his Worship) would now have to bind the defendant over to keep the peace, as she had not kept her word on the last occasion. He would however accept one surety in £25 and herself in £SO to keep the peace towards complainant for twelve months. LYTTELTON. Monday, September 28. [Before W. Donald, Esq., R.M.] REFUSAL OF DUTY. Edward Thomas, Thomas Freemantle, Henry Saunders, Alfred Gilbert, Frank Tabar, Adolph Petersen, George Williamson, Thomas Richards, William Bartlctt, all seamen of the ship Cathcart, were brought up charged with refusal of duty and combining to disobey lawful commands. Each sentenced to ten weeks' imprisonment. KAIAPOI. Monday, September 28. [ Before G. L. Mellish, Esq , R.M.] CATTLE TRESPASS. John Harper, owner of two horses found by the police wandering at large, was fined ss, and costs 6s 6d. T. Vcysey, the owner of one horse, proved that it had got loose by accident. As the inspector of police did not press the case it was dismissed. ASSAULT. John Doran, charged that on the 19th he did assault and beat Mrs Catherine Robinson, did not appear, but a medical certificate assigning the reason was handed in. The case was adjourned for one month. CIVIL CASES. R. L. Higgins v C. Dudley; claim £ls. The Resident Magistrate, in giving judgment, said there appeared no doubt that the wrongdoer in this affair was the bailiff of the Trustee in Bankruptcy, who had no right to take the copper and range and hand them to Wood. The land on which the copper was set did not appear to belong to the plaintiff, but to Revell. The range was in the security given to Thompson, and must be held to be part of the premises ; and the defendant, knowing the circumstances, of the case, was not justified in keeping them after being claimed. Judgment was given for plaintiff for £lO and costs. Education Rate Collector (Kaiapoi district) v Mrs Buchannan ; claim £1 lis, on judgment summons ; order for amount to be paid at the rate of 10s per month. Same v S. Garrett; claim £1 16s, judgment summons ; order made for amount to be paid at the rate of 10s per week, or in default fourteen days' imprisonment. Same v H. Lehman ; claim £1 9s ; order made for amount to be paid at the rate of 10s per week, or in default fourteen days' imprisonment; the collector suggested that perhaps the Court would make an order for the money in this case to be paid by the Bank, as defendant had plenty of funds ; the Resident Magistrate said such a course could not be adopted. Same v J. Petersen ; claim £1 19s, on judgment summons ; order made for amount to be paid at the rate of 10s per week, or in default fourteen days' imprisonment. Dudley and Craig, by Alfred Thompson, assignee of book debts, v Eckersley and Co; claim £6 19s 8d; Mr G. Harper for plaintiff, Mr Wynn Williams for defendants; C. E. Dudley, called by plaintiff, stated he was a partner in the firm of Dudley and Craig ; on May 14th, he, on behalf of the firm, borrowed money from Mr Thompson, and gave him a mortgage of certain property and book debts. Mr Craig was then, and had since been away from the colony, witness had the management of the business during Craig's absence. Craig at the time the mortgage was given had been away about seven weeks. Defendants' names were in the schedule attached to the deed of assignment, which was the one produced in Court, purporting to be a deed between Charles Edward Dudley, James Craig, and Alfred Thompson, wherein, in consideration of an advance of £6OO, witness conveyed to Thompson the foregoing as security. The money passed, and was used by witness for purposes of trade in the business, Had previously borrowed money on freehold property. Had full control of Dudley and Craig's business in the absence of the latter partner. Craig gave him no power of attorney, nor did he hold any. Witness filed his declaration of insolvency on May 27th, but'did not file his four days' statement, and no proceedings were taken on this declaration of bankruptcy. On June sth he again filed, and also filed a statement within four days. He was then adjudicated bankrupt on June 19th, on the petition of Mr Wilkin. Did not proceed on the first declaration, as it was expected the creditors would meet and consent to a deed of arrangement. Witness would swear the money borrowed from Thompson was used for transactions connected with the partnership of Dudley and Craig. It was lodged at the National Bank and drawn against to pay the creditors of the firm. Witness did not tell Thompson he was insolvent, and did not lay any statement of his affairs before him. He was not aware that he was insolvent. By Mr Williams—Thompson lent the £6OO by way of mortgage. At the time of execution of the deed there was no settlement of accounts between Craig and witness, but witness always considered he was entitled to half. Witness could not say that he could take out his half share out of the business and leave his partner to pay the debts. He could not pay the firm's debts at the time the deed in question was made, and told Thompson he was in urgent want of the

money to pay pressing creditors. He placed the affair of the firm in Thompson's hands on the same day on which the deed was signed, or about then. The £6OO was paid into the National Bank as witness was negotiating with the manager to take over the firm's account from the Bank of New Zealand. He knew at the time of signing the deed assigning the property and book debts to Thompson that Mr T. W. Hall would have to pay £2OOO at the Bank of New Zealand to take up the bills of Dudley and Craig, and Captain Morgan had to do the same to the extent of £ 1000. Witness said his idea was that at this time the firm was solvent according to his valuation of the property, and the valuation made by others. By Mr Earper—lt was immediately after he had seen Hall that he put his affairs into the hands of Thompson, and the former was then intending to foreclose on his bill of sale. Witness told Thompson he was in urgent need of money, and that if he could not get it he should have to call a meeting of creditors. He believed that was the expression used. A. Thompson called, stated he advanced £6OO to Dudley on security of property and book debts belonging to Dudley and Craig, and one security belonging to C. E. Dudley. Dudley represented he was in want of money to meet pressing creditors. He further said he hoped to be able to arrange with Hall, and in the meantime had sufficient assets to meet all partnership claims. If witness advanced this amount Dudley said it would save him from having to go into the Bankruptcy Court. Some days after the deed was signed Dudley put the affairs of Dudley and Craig into his hands, when he became aware of the fact that they were insolvent and would have to go into the Court, and he tried to get them relief from elsewhere. After the transfer of the debts witness gave notice to the persons named in the schedule, which were issued before Dudley filed his declaration of insolvency on sth June. When the money was lent witness was aware Dudley and Craig had been borrowing before that. By Mr Williams : Dudley said he would have means to settle with all other creditors if he had the loan of £6OO. Hall lost by that firm, it might be to the extent of £ISOO. Dudley might have misled witness. The result had turned out so, but witness did not think Dudley had done so intentionally. . Witness saw that the securities he took were not encumbered, and accepted Dudley's word for it that there was no lien on the debts. T. East gave evidence of the notices having been given to defendants on the 3rd June that the book debts had been transferred to Thompson. No evidence was given for defendants. Mr Williams submitted that the deed as affecting partners was not valid. Dudley had stated Craig had given him no power to sign it on his behalf, and it was monstrous to suppose that a partner who admitted he had only half of the share in a business could deal with the other partner's share without his authority. In ordinary transactions of business one partner might pledge another, but this was a thing quite out of the common course. A man, he thought, must be blunted in his notions of trade when he entered into affairs of this kind. It was a pity, but probably Dudley was not aware of what he was doing exactly. There might be no vice on his part, but the firm were absolutely and totally insolvent long before; Want of caution had been shown by Mr Thompson, and it was sad for him (Mr Williams) to think that one of the profession had been caught when he would not have been surprised if ithad befel aninnoceut layman. He submitted that under the Bankruptcy Act Dudley had committed an act of fraud ; he obtained this loan on securities which ought to have been surrendered to creditors at a time when he knew that a guarantee for the advance of a sum of £3OOO was given to the firm, and hardly a month after he filed his declaration of insolvency._ Mr Harper anticipated that a nonsuit or judgment for defendant would be given so as to allow the case to go to appeal, where it could be fully argued. He asked the Court to consider the deed as an agreement. It might not be good as a deed, but it was as an agreement; in the same way that a lease might not be good as a lease, but yet would be sufficient to form an agreement to lease. The debts, he submitted, might have been transferred verbally, and notice given to the persons named in the schedule of the agreement would be sufficient to convey them to his client. The book debts were assigned before the second filing by Dudley. The first filing would have prevented Thompson having a claim, but Dotices were sent before the second filing, and he could recover. The " reputed ownership " clause of the Bankruptcy Act he submitted did not apply to the case. He then pointed cases in which the implied authority of an absent partner would be binding, as in such an instance as the one before the Court, when the intention was shewn to be to raise money for partnership purposes. The Resident Magistrate gave judgment for defendants, the agreement being held not to be sufficient to bind both partners, and the effect of the Bankruptcy Act was to vest the property in the provisional trustee. Application to appeal granted.