DUNCAN v. HENDERSON.

Globe, Volume XXII, Issue 1941, 14 May 1880, Page 3

DUNCAN v. HENDERSON.

Thtjhsday, Mat 13. [Before G. L, Mellish, E<q, B.M.] This was an action for damages sustained by the plaintiff through illegal sale t > him, by defendant, of certain cattle belongirg to trustee in bankruptcy of Henry Davis. Mr Loughrey for the prosecution. Mr Stringer for the defence. At the request of Mr Stringer, all witnesses were ordered out of court. George Duncan sworn. I am plaintiff in this cuso. My son bought some cattle at Matson's sale yards. I was sued by the trustee in bankruptcy for them. (Mr Stringer objected to this evidence.) I paid £25 4i 61, and solicitor's fee, £5, into court. Henry Davis, sworn, I am an insolvent; before "my insolvency I had six cows and a heifer calf. I bought them from Ford and Newton's. I did not pay for them. I paid nothing on account of them. When I became insolvent, Henderson came as a friendly creditor and took them out of my paddock—that is, he took four cows and a calf. I did Dot give him any authority to take thom. I first made his acquaintance on the 20th February. I had a letter the day before from Mr Hopkins abou' the house I was buying from him. The first time I saw Henderson was in Staples', the tailor's, shop. I asked him to give me some information about the letter; this was on the 20th February. Mr Staples is a friend of mine. I asked Mr Staples to look at the letter. No one was in the shop at that time, Henderson came into the chop a few minutes after me. Mr Staples said to me, " Let Henderson look at the letter." Henderson came into the shop whilst I was talking to Staples Henderson looked at the letter and the rooeipt-book. He read the letter, ub far as I know. He told me, " Come down to old Neck's office, and let him give you advice." We went to Mr Neck's office together. No further conversation took place at Staples' about it. That was all Henderson said. Mr Neck was not at his office. Henderson and I met Mr Neck at his office at two o'clock. I next saw Mr Henderson three or four days afterwards. I had another letter from Mr Bamford, which I took to Mr Neck. He advised me to file. Henderson came into Mr Neck's office at that time. He asked me what Neck advised me. I said he had advised me to file aDd get friondly creditors. This was outside Mr Neck's office. By the Bench —I have told the Court the whole truth about what Mr Neck said to me. By Mr Loughrey—When I told Henderson all Mr Neck said, he said, "Do what Mr Neck advises you, and I will become a friendly creditor to you." I told him I had Bix cowb and a heifer calf. We went into the Com mercial Hotel, and he made up the papers. I don't know what the papers were. I did not sign anything. He was copying down what my debts were. I was telling him what

creditors I "had. We did riot stay therjj long. From there we went to Henderson's: house. He there made out a bill for the cattle. I signed the bill. He said, " I'll be a friend to you, and will make out a bill that will protect the cattle from any creditors." He never gave me any money. The bill was for £36 or £37. (Bill produced.) That is not the bill. It was made by Henderson on a half-sheet of blue foolscap paper. I am quite positive it was a blueish paper. By the Bench— It was like that (a half-sheet of blue foolscap shown by the Bench). Henderson went into the back-room to see if the 16th December fell on a Sunday, becauso he said it would not be lawful if that day was a Sunday. It was last February when the bill was made. The date of the bill was for the 16th December, 1879. He gave me no money. On another occasion he gave Mr Neck £3 10s. I told him the oattlo were not paid for. I told him they belonged to Ford and Newton. I next saw Henderson a day or two before the meeting of creditors. He came into Mr Neck's office. I reckoned the cows belonged to me after I ga\e t'je bill to Henderson. I milked them and sold the milk. When I filed Henderson took the oows. They were taken away on March 6th on Saturday, whilst I was round with the milk. Four cows and a calf were taken. Two cows were sold prior to this at Clifford's saloyards. By Mr St.ringer—Two cows were sold on the 28'h February, I think. I entered them for sule before I signed my declaration of insolvency. I know a man named Ferguson. I did not know him before Henderson brought him down to my place. I do not remember Ferguson, Henderson, and another man coming down on another occasion. They enly came once. Henderson said, " That is a friend who will take the cattle in charge." By Benih—When I saw Henderson and Ferguson, they were on the road in a cart, and came down into my paddock that morning. Ferguson was to take charge of the cattle away from me for Henderson. I never pointed out any cattle to Ferguson as belonging to Henderson. On the Friday night of the meeting of creditors, March shh, Henderson came down and said a detective had been to his house about the cattlo, and said ho thought swindling had been carried on, and I had belter give them over to him in his name. I did not belp Ferguaou and another man to drive the cattle out of my paddocks. I do not believe I saw this document when I was first at Mr Neck's. I did not see it I see that writing over the stamp. I do not believe I ever wrote that over tho stamp. It is written Davis. I write my name Davieß. I always put the e short over the i. I did not sign that paper. I swear positively that is not my signature. By Bench—My reason for being so positive that is not my signature is because Henderson wrote it out on blue paper. Mr Neck asked Henderson if he had got the cattle all right in his own name. Mr Henderson never made any agreement with me for me to pay him rent for the cattle. Mr Neck prepared my bankruptcy papers for mo. Mr Hondevson prepared the necessary information for this in tho Commercial Hotel. That is my signature. There must be a mistake about it somehow, as the e isn't there. I know that is my writing, but that on the reeoipt is not. I remember signing it. I did not read it before I signed it. I do not remember its bein» read over to mo. (Mr Stringer read document.) Oh, yes, I remember, Mr Neck's son read it to me. I swore to its being correct. I did not include the cattle because Henderson had them in his name. Henderson told me distinctly the paper would appear for £36, of which £l6 should be rent for cattle. Henderson wanted me to clear out 1 of the place. He asked me to come on two or three occasions to hiß office and he would settle.it up. I saw him. I proposed to him to clear out if I could get the money, although I should not have clearod out. I told him I was going away. I had no intention of going. I don't know that waß a lie. Before that I offered to go to the Fijis if I had £8 from him. I wanted to go there'because,there is no work here. It was not because I had sworn anything. I wanted to clear. If Henderson had given me £8 I should have it to the trustee in bankruptcy. [Laughter.] I wanted to get the money for my creditors. I,' saw the cattle afrer they weie driven from my place in the Ferry roud, near Cjok's store. Ferguson and a boy were driving them.- Henderson was in a trap. I do not remember one of the beasts going down a right-of-way. I didn't help to turn it. I was carrying a yoke and a pair of tins. By Mr fainnot tell what time the £l6 for cattle rent.rbprcsonted. Henderson fixed everything up so nicely for me that I left it to him. Henderson asked me to come to his offioe, in consequence of a letter from Mr Scott about my going away. I saw Henderson. He UAd me he" had got no money. He didn't recommend me : to dear out. I told him I would cleur out.: By Mr Stringer—Henderson first suggerfod I should sell the two cows at Clifford's. He entered one in his own name He give me no reason. I thought it was to pay lawyers' expenses. I drove them to Clifford's for sale. I enterod one on the Friday in Henderson's name, and one on the Saturday in my own name, and Henderson rebuked me for doing so. I do not believe I told Clifford Henderson had sent me for the money. I got the mimcy for one of the cows. Henderson did not claim the money from mo afterwards. By the Bench —I think it was £4 I paid into Mr Neck's office. Altogether £7 10s has been paid to Nock, Tho £3 10s was paid by Henderson to Mr Neck before the cow was sold. I did not ask him to pay Mr Neck, but I pointed to him as a security f or ine. ' Instead of that he paid the cheque. F. W. Staples, sworn. By Mr Loughrey—l am a tailor, in business in High street. I know Dfyis. Have known him about eighteen monthß. He came to me one morning on my way to business, with an aocount book. On that book were three receipts for instalments paid on accou it of a cottage he waß buying from Hopkins. I believe this book produced is the same, and I think in the same state as then. He apologised for stopping mo, as knowing more of business than him, and BBkod mo what I thought of it. I said it was vaguo. He said he would call on me at tho shop at ten o'clock. When he came in no one was there. Afterwards Henderson came ' Davis withdrew. I said, " This ia a friend of mine. You had better open your mind to him." H nderson said, "Come with me to Mr Neck." They then went away. It was this lust February. By the Bjnch—l saw Davis and Henderson togother. They werenot'acquuinted. I am aware they did not know each other previously. David Thomas sworn, I am connected with the firm of Matson and Co. I remember cattle b«ing sold to Mr Duncan on March 10th. Mr Henderson received the proceeds! of sale, less charges. This ia his receipt. T. B. Craig I am trustee in bankruptcy in eßfcate of Henry D vie. My appointment Jatea 6th March. The insolvent made a statement to me as trustee. Mr G. Duncan recalled—By Mr Loughrey—l remember when the case of the trustee in bankruptcy against me was decided. I remember nothing particular that day. When we met here Henderson said, " You have nothing more to do with it I am going to take it up." F. W. Staples recalled—When I introduced Davis to Henderson they were strangers. Henderson saw mo the following day. He asked me if I I knew anything about Davis, . as ho had advanced him money to file with. I told tiaa I thought he was a steady hardwoiking man. He said something about cattle, but I can't remember the particulars of the conversation. By the Bench : It was after they loft my shop to go to Neck's office that any conversation about cattle could have taken place. This was the plaintiff's case. Matthew Henderson, Bworn — In September, 1879, Mr Davis came to me and borrowed £ls, for which he gave me an acceptance, payable in one month. The bill was dishonored. I had several interviews with him, which rexulted in my lending him £lO, whioh made £26. He came to my house. A bill of sale was drawn out, and I took security over these six head of cattle. It was drawn oui on a sheet of- foolscap. It ultimately resulted in my buying the cattle to save registration ccsts. There was an agreement drawn out and signed whereiu Davis hired these cattlo at a rental of 15* a-week. He paid two, and ran behind eight weeks. I went down to see Davis ; it was tho day we wont u>to Staples' shop. I had been to his place, a id overtook him in Btaples' shop. Staples said, " Oh, here is Mr Henderson, He will tell you better than me," huiding me a book. 1) .vis was leaning over tha counter at this t me, and looked up, frowning to me us much as to say ''Don't say anything." I snid, "What is it you want to know?" He asked mo then if I considorod the roeeipt on the top of the book was a receipt for £2OO. I said, "How can that bo when you have so no receipts underneath it?" He said "I havo been told if I cut off the top I can claim the property." I said "You might get. yourself into trouble for conspiracy to deI fraud if ycu attompt anything of the kind."

Mr Staples hoard this, and agreed with me at'the time. He then said he wonlrj like to consult a solicitor, and asked me which was the best. I told him I thought Mr Joynt. He said he wanted a oheap one. I said " If you want a cheap one go to Mr Neck." He said Hopkins had turned very nasty, and had written him a lotter threatening to seize everything he had. Then the conversation arose about the cattle, and I said " He cannot seize my cattle." By the Benoh —The conversation in Mr Stapleß' presence stopped when we spoke about the lawyers. I said " We had better get the receipt for the cattle, and wo can ask Neck's advice if they can be seized on your property, at the same time." By Mr Stringer—l went and got tho receipt and • ent with him to Mr Neck's. That was the receipt for the cattlo. The receipt now handed rae ia the one. There was another receipt from Ford and Newton's for the cattle, whioh I got from Davis, showing the cattle were purchased and paid for. Mr Neck told me at tho time they could not be interfered with. I went away and left them together. A day or two after I met Mr Neck.,, in the street, and in consequence of what Mr Neck told me I went down and took possession of the cattle ; that was on Saturday, February 21st. I went down with a man named Ferguson, who was going to buy thorn. Ho only liked the look of four of them. I esked Davis would he give Ferguson possession then, to save my coming down again. Ho said, " Yes." That was four cows and one calf. He did so. I evontually went down in the afternoon with Ferguson and a cattle driver named Welsh. Wo went and took them, and met Davis a few yards down the road. Ferguson remarked they were rather wild. One of them ran down a right-of-way. Divis ran and turned it, and said he would go wi*h ub a bit. He went with us as far as the belt I think. I cannot be quite certain. Ferguson took the cattlo to hiß place at St. Albans, where they roms.ined till they were sold. He was to have bought them, but would not give more than £5 a head. Davis s-id they were worth £8 a head. I saw Davis again the following Friday; he came to my house as I was having lunch. Ho said he was going to file. I eaid, " What do you want to file for. I don't think you have any reason to do so." He said he had had advice and knew what was best. It resulted in my going with him to Mr Neck's office. I asked what Davis had brought me there for, and ho said to pay him £7. I said I objected to do anything of the kind. I ultimately gave Mr Neck £3 10s, and I authorised Davis to bring one of the remaining cattlo the next morning into Clifford's sale yards to test its value. I went with him to Mr Clifford and told him he would receive a cow in the morning, and entered it in my own name. On tho Monday I called at Clifford's and asked if it was sold. ■ He said, "Yes." Davis had brought two cows. Both wore sold, but the cash was received for one cow only, as Davis had attended the sale, and had become responsible for some man who had bought one of thorn. I asked him for the cash for the one. He said he had given it to Davis. I asked him by what right he had given it to him. He replied, "Davis was with you at the time of entry, and he said you had sent him for the money." I went to Davia tho same night to get the money from him. I told Davis if he didn't get the other cow that waß taken away from Clifford's, or tho money, by the next morning, I would put the matter in the hands of the police. I gave the police information concerning it, but nothing was done, and acting under advice from Mr Neck, Davis put me in hia schedule for the £l6 for rent of cattle and £lO cssh lent, being balance for two cows sold at Clifford's. By Mr Stringer—What Davis said about my not having seen the cattlo till after he had filed is false. Davis came to my office and said he had been advised Duncan was coming against me, and he was certain Duncan couldn't get the case against me without his evidence, and if I would give him £8 or £lO he would olear out. I said if ho didn't clear out of the office I would send for the police. I never suggested he should clear out. After that he wrote me a letter. Ho saw me more than once. In the meantime I had seen you, and acting on your advice, refused him. I told him to make his demand in presence of witnesses. He wanted £8 or £lO and he would clear out to the Fijis, or if I would take a ticket for him in the Union Company's Office, next door, he would leave his wife and clear out. As I thought he would clear out and leave his wife, I communicated with Sergeant O'Grady, in Port, who said he would keep a look out for him. It is false about my being a friendly creditor. Nothing; of the sort ever took place. What Mr Thomas has said about the cattle sale is quite correct. I received £22 lis. By Mr Loughrey—l first made Mr Davis' acquaintance in October, 1879, or the latter end of September. He called upon mo. He wanted to borrow money He borrowed £ls. He gave me an acceptance for a month for £l6. I saw him again after it was overdue. I then lent him £lO, because he had purchased these cattle, and I took a bill of sale over them. When I first lent him money he had no cowb. I thought he was good enough for £ls. I had an agreement about having the cattle, but unfortunately can't find it. When I overtook Davia at Staples' shop it was between eleven and twelve. I had been to hiß house before then, at about ten o'clook, to see him, because he was eight weeks' rent in arrears to me. I saw no one there. I met a man in the Ferry road, who told me Davis had gone up the road to town; thiß was between ten and eleven. I was passing by Staples', and saw Davis in the shop. I think I know the man who told me Staples had gone to Christchurch, but 1 cannot Bay for certain. Previously I had been to the Phillipstown school. I forget the day of the week it was, I think Monday. I cannot tell the day of the month it was. I do not always put my name down when I visit the school. I believe it was Monday, February Bth. I won't be positive, but that is within a day or two, I do not keep a diary. I went to eee Davis about the rent. I have known Mr Btaples for six ot 'seven years. He heard all that passed between us. I went to Mr Neck's with him, as I wanted to get advice about the cattle, and we would make it a mutual arrangement. Davis gave me and Ferguson possession of «he cattle on Saturday, February 21st. We drove them up that day, in the afternoon. Davis was not then on the premises. It was about five o'clock. We met him near his home ' going home; he had his milkcans with him. Th;*y were rather wild cattle ; one ran up a right-of-way. Davis put down his oans and helped us drive them. I next saw Davis the following Friday. Ho came to me at my house I was at dinner ; he said he was going to file. I did not draw up his schedule, as stated by him. The £lO cash lent was an equivalent for tho two cows. I was scheduled for that sum because I couldn't get any more. Charles Clifford sworn—l am an auctioneer in Christchurch. I remember Daviß and Hondorson coming to me about entering cows, but not both togother. Henderson came to me and said he had five or six caws to sell, and would Bend ono for sale to test the market. I produce the book containing the entry of the two cows ; they are entered on the 28!h of February ; they were brought by Davis. I wag going to enter both as Henderson, but he said one was his and one Henderson's, hence the corrected entry. The cattle were sold. I reserved the money for one, which I paid to Davis. I paid Davis, because I understood it Waß his that was sold and paid for, whilst Henderson's was Bold and not paid for. I told Davis I would take no responsibility, that was taken by Davis, but that I would try and get the money from Merson. I should not have paid Davis for the second cow. I should have kept it for Henderson. By the Bench—The reason I allowed Davis to interfere was because Davis told me it was all the Bame. I didn't know whioh cow was Henderson's, nor which Davis's. I believed it was Davia's cow that was sold. W. A. Neck —I am a barrister and solicitor of the Supreme Court of New Zealand, and as such acted for Davis My first interview with Davis waß a few days before he filed. He was alone. Subsequently Henderson came with Davis to soo mo. (Mr Stringer here said that Davis had put himself out of Court. Ho had corns and stated certain things that tran spired between him and his solicitor. He should vontilate the matter fully.) As regards what Davis said about my advising him to get friendly creditors, there isn't a particle of truth in it. The question arose as to who would be appointed trustee, and I said it was often very difficult to get creditors to attend, particularly when there was no estate I said, " Haven't you a friend or two amongst your creditors who will attend the meeting, so as to secure a quorum." I remember when Davis and Henderson came and sought my advice about the cattle. Mr Henderson told me full particulars about the cattlo, and produced two receipts. I told him I thought if the hiring waß properly proved and the rent paid it was a preferable course to adopt, and I therefore thought Mr Hendorson wan safe under the circumstances. Mr Henderson's version as to the £l6 is correct, I have no

dotibt the receipts, produoedr are what I sawy I then left Davis in my office to' prepare his' schedule, and he came to me here afterwards and swore it. I attended the meeting at the Supreme Court, and on walking down with Henderson and Davis, Davis said to me, "What shall I do now." I replied, " Well, you bad better keep your milk walk if you can—it will be a maintenance for you, and make an arrangement with Mr Henderson for a continuance of the hire of the oows. Mr Henderson made no reply to thnt proposition, and I left them. I did not propose at any other time to Henderson to continue the rental of the cattle in question. Paul Neck—l am assisting my father. I wag present when Mr Davis gave his instructions for the four days' statement. I prepared it, and it was afterwards filed in the Supreme Court. I understood that the £l6 was for the hire of cattle. I read the affidavit over to him three or four times. Robert Ferguson was next examined, and corroborated Henderson's evidence in the parts relating to their joint action about taking delivery of the cattle. Mr Henderson recalled—l returned the bill given me by Mr Davis when we squared up. The bUI was lodged in the National Bank for collection, I can get proof of that in tho morning. The Bench—lt would be preferable to got some further evidence about this bill. I will adjourn this case for that purpose till eleven o'clock tomorrow (Friday) morning. The Court then rose.

Fbidat, Mat 14. The case Duncan v. Henderson was again called on at eleven o'clock. Mr Stringer informed the Bench that Henderson could got no record of the bill from the National Bank, seeing no record was kept of bills not lodged for discount, but Mr Piper, the tinsmith, remembered having seen the bill, and wag now in attendance. J. Piper deposed to being his brother bookkeeper. On one occasion he remembered Henderson showing him several bills, amongst others one in Henderson's favour from Henry Davis (bill produced). He could not swear to the signature, but remembered the amount was the same as this, viz., £l6, and also that it was not payable at any bank. Told Henderson that was a loose way of doing business. Ho remombered Henderson ttlling him Henry Davis was a milkman living in the Ferry road. This was in October, 1879 The reason why he had come forward to give evideio in the matter was, he happened to come into the court yesterday afternoon, juat before the court rose, whilst the bill was being spoken about, and he therefore volunteered to say what he knew of the matter. In reply to Henderson the Bench expressed ita satisfaction at the evidence given by Piper. Mr Stringer and Mr Loughrey addressed the Benoh, the latter raising a point of law re the custody of the cattle, which was that the Act provided that any agreement relative to rental of cattle must be filed within sixty days. Now in this case sixty-Beven days had elapsed ; he contend* J, therefore, that as the law had not been oomplied with the cattle belonged to the trustee in bankruptcy. The Bench asked if Mr Stringer required time to consider the point raised, and said this case must go further, for gross, deliberate, and unblushing perjury had been oommitted ; he ' should therefore order the witneßß, Henry Davis, into custody for this offence. The case was further adjourned till Tufsday next.