MAGISTRATES’ COURTS.

Globe, Volume XXIII, Issue 2160, 27 January 1881, Page 3

MAGISTRATES’ COURTS.

OHEISIOHURCH. Wednesday, January 26. [Before J. Nugent Wood, Esq., R.M.]

Civil Casks.— Marks v. Young. This was an action for the recovery of certain goods, the property of plaintiff under bill of sale, or their value, £92 8s 6d. Mr Holmes appeared for plaintiff, Mr Perceval for defendant. Plaintiff’s case was that having taken possession of and caused the said goods to be sold by auction he, at the solicitation of defendant, bid for and bought them. The agreement was that plaintiff should bo paid immediately after the sale what he had so expended. On these terms defendant was allowed to retain possession. A day or two afterwards plaintiff demanded the money, but being put off he took possession of some of the things, viz. A suite of furniture, a horse and a cow. The rest of the things, of which there were a good many, he coul . not obtain, because defendant had his house barricaded to prevent the entrance of bailiffs. This took place in November, 1879, and since then he had not been able to get from defendant either the goods or their value. The horse and cow ho had sold at a profit, the suite of furniture had not been sold. The case has been before the Court twice previously, and adjourned each time on the application of defendant —the first time for the production of a mortgage which was said to cover the property in dispute, and the second time, because a witness was absent. (Later on the other mortgage referred to was mentioned by defendant’s counsel, together with a statement of a current account between the parties, but neither were allowed in evidence, as, if they were admitted, the Court would be assuming the functions of the higher Court by opening up accounts between mortgagor and mortgagee.) The evidence of plaintiff and John Hartley, his clerk, to the above effect was taken.' Mr Percival applied fora non-suit, on the ground that the holder of the bill of sale was debarred from acquiring, for his own benefit, any part of the property secured by it. His Worship noted the point. The defence on the merits of the case, Mr Perceval said, would have been that the goods had been paid for by credits in an account current, had not the latter been excluded. He called Mr Walton, of Matson and Co, the auctioneers, who sold the goods. Defendant, his wife, and Thomas Allnutt, servant to defendant, whose evidence did not materially contradict the statement of plaintiff. His Worship, after hearing counsel, said it was quite clear that the claim could not be sustained. As had been properly put by defendant’s counsel, plaintiff was shut out

from trafficking in goods he was selling under powers of a bill of sale, he might, if be chose, by an easy process, teat whether or not his claims under that instrument had been discharged by the sale he had brought on. It seemed to him that what claim, if any, plaintiff had was for goods sold and delivered by him to defendant. Judgment, plaintiff nonsuited with costs. Mr Holmes gave notice of appeal. Innes and Co. v Butler, £32 Bj, for beer supplied, and for empty casks. Mr McConnel for plaintiff, Mr Loughnan for defendant. This case was a dispute in matters of account between plaintiff, a brewer, of Christchurch, and defendant, a publican, of Ashburton. The evidence, which was very conflicting, was mainly that of the principals. The Court, after a long hearing, gave judgment for the plaintiff for £24 14s, with costs. Millett v Craig and Taylor. Defendants are trustees in the

assigned estate of Bradshaw and Isherwood, lately carrying on business at the steam laundry, Sydenham. Plaintiff claimed the sum of £25 Is, the price of a horse, and £25, damages accruing from deprivation of his services. Mr Thomas appeared for plaintiff, and Mr Deacon for the defendants. Plaintiff alleged that in November last he let the above firm have a horse, and now produced a stamped agreement which stipulated that hire was to be paid for it, £1 for the first, and £2 for each of the succeeding twelve weeks. At the end of that time, Bradshaw and Isherwood wore, on payment of Is, to become owners of the horse, flf default was made in any of the payments, plaintiff was to be allowed to resume possession, all amounts previously paid to bo, by the default, forfeited. A clause provided that any damage to the animal while the payments were going on were to be charged to the hirers. Bradshaw and Isherwood made five payments, more or leas punctually, when they had to come to an arrangement with their

creditors. An assignment of their business and effects, only completed a few days ago, was made, and defendants being appointed trustees, took possession of the horse, refusing to recognise the claim to it of plaintiff, and, as one witness said, they had kept it ever since in a state of semi-starvation. Defendants admitted having taken possession of the horse. Shortly, their contention was that the transaction between the first parties was a sale not a hiring, and that the deed of assignment making over all that was possessed by Bradshaw and Isherwood, the horse had become Tested in the trustees for the benefit of the creditors. After evidence as to the facts as above, Mr Deacon addressed the Bench at length, arguing that defendants were justified by law in their action, quoting the wellknown clause of the Bankruptcy Act, which lays down that any property found in possession of a bankrupt, being colorably bis own, was liable to appropriation for the benefit of creditors. Mr Thomas replied that the completion of a deed of assignment such as had been acknowledged by defendants took the property of the arranger out of the scope of the clause quoted by Mr Deacon. That the

transaction between the parties loft the property involved in the plaintiff was fully borne out in a decision given in the Court of Appeal in England before three judges—viz., in a case Xiowin v Robson, reported in L. J-, 1878, p. 47. In that instance furniture was bought on periodical payments, and handed over to the buyer, on an agreement not registered as a bill of sole, in which power was given to the vendor to resume possession on default of any the payments. Seizure had been made by trustees in bankruptcy under circumstances almost exactly similar to those in the present cose, and a judgment had been given in the lower Court in favor of the trustees, which, however, was reversed on appeal as before stated. Mr Thomas called the attention of his Worship to the fact that in the case quoted there had been an actual open sale made, yet the property was decided to remain in the vendor until the whole of the instalments of the purchase money had been paid. The

Magistrate said the agreement was explicit enough as to the hiring, and none of the witnesses had attempted to prove the contrary, which was quite sufficient to guide him without the strong precedent quoted by Mr Thomas. The judgment would bo —the horse to be restored to plaintiff or £l4 in money to be paid him as the balance due if the term of hiring were completed, and £5 for loss of the services of the horse since its seizure, December 20th, together with solicitor’s fee, casts of Court and expenses of three witnesses. Mr Deacon mentioned that as there was no estate in the affairs of Bradshaw and Isherwood, the trustees would have to pay the expenses of the suit out of their own pocket.

Thursday, January 27. [Before R. Wcstenra and J. E. Parker, Eeqs., J.P ’s.J Drunkenness.—For this offence, John Urquhart was fined ss, and cab hire Is ; J. H. Baker, 5s and cabhire Is; Isabella Leokie, 5s ; J. MoEvoy, who was also charged with indecency to a little girl, was remanded till Friday (to-morrow). Robbery from the Person. — James Busby was charged with stealing _ £ll in money, and a silver watch and chain, pipe, tobacco, pencil, and handkerchief, the property of Francis Gilbert, a laborer, lately in the employment of Mr Clark, Bt. Helen’s station, Amuri. Mr Stringer appeared for the prisoner. Prosecutor deposed to coming to town on the 24th inst., having two cheques, which he cashed. He put up at Klingenstein’s. On the following evening he went out for a walk, and after visiting a tew hotels, lost his senses in the right of way by the White Hart somewhere about 11 p.m. He was not drunk. When he came to his senses again, he missed the money and articles before enumerated. At about 10 o’clock yesterday (Wednesday) morning he saw prisoner, who had been working on the same station, in the bar of the Golden Fleece, wearing a hat and having two pocket handkerchiefs belonging to prosecutor. He charged prisoner with robbing him, and the barmaid, who heard the conversation, then gave up the watch, which prisoner had lodged with her for safe keeping, and prisoner handed him some other of his things. Cross-examined —He had nothing to drink, before losing his senses, except claret and lemonade. He did not remember anything that happened while he was insensible, but could swear he had not given any one authority to take his property from him. He had not been in company with prisoner at all in town. [Witness, who appeared to be a rather stupid person, here became somewhat confused by a series of comic interrogatories from Mr Stringer, his answers to which seemed to amuse those present. Nothing, however, of any importance was elicited, except that prisoner had the things ] Constable O’Connor deposed to arresting [prisoner, upon whom he found the articles claimed by prosecutor. Being charged with stealing the money, watch and chain, &e, prisoner said prosecutor gave them to him. There was 12s 6d in money in prisoner’s pockets. Mary Calami, barmaid at the Golden Fleece Hotel, stated that prisoner yesterday morning gave her a watch and chain, which he said belonged to one of his mates. Afterwards prosecutor claimed, and she gave them to him. Prisoner was present, lying drunk on a form. John Ledded, called for the defence, said he saw prisoner early on Wednesday morning in the Criterion Hotel, with a watch, which he said he did not know how he came by it,but it was not his(prisoner’B), Courtenay deposed that he eaw prosecutor and prisoner drinking together on Tuesday morning at the Victoria Hotel. Mr Stringer pointed out the contradiction, by last witness, of the evidence of prosecutor, who said he had Mot been in company of prisoner. Also that prisoner, all along, said the watch and chain belonged to a mate of his. It was clearly the case that the things had been given to him to take care of, by prosecutor, while they were both drnnk. The case was dismissed. The property found on prisoner was ordered to be returned to prosecutor.