RESIDENT MAGISTRATE'S COURT, COBDEN.

Grey River Argus, Volume IX, Issue 661, 14 April 1870, Page 2

RESIDENT MAGISTRATE'S COURT COBDEN.

Monday, Apsil 11. i (Before 0. Whitefoord, Esq., KM.) : Peter Robinson admitted having been drunk and indecently exposing himself in the Camp Reserve on the 9th inst., and making use of abusive language in the street on the 7th inst. • For all offences he was fined L 4 10s, or two weeks' and one day's imprisonment. CIVIL CASE. Boase v. Easy.— Claim of L 3. Debt admitted, and judgment given for the amount. Crogan v. M'Garrity. — Service had been attempted in the usual manner, but could not be effected. Substitution of service was ordered, and the summons enlarged to the 25th insb. Skoglund and Purcell v. Ross. — Claim of L2l7s Id. Judgment by confession, with costs. Glenn Brothers v. Ross.— Claim of L 44 12s Bd, for goods supplied. Judgment confessed, with costs. Ryan Brothers v. Neilson. — Claim of L 4 3s 1. Judgment by default, with costs. Ryan Brothers v. Powley. — Claim of L 29 ss. Judgment by default^ with costs. Same v. Wilkinson. — Claim of L2l 3s lOd. Judgment confessed. Constantine v. Millard.— Claim of L 54 3s, for carriage. The debt was admitted. Judgment for plaintiff, with costs. CLBVE AND LAHMAN V. MILLARD. This was an interpleader case. Mr Guinness appeared for the plaintiffs. Messrs Perkins and Newton appeared for Russell, the claimant of the goods seized by the bailiff in the estate of Millard. .A. S. t Hall, acting bailiff at poben : By virtue of a distress warrant received I went to the defendant's two stores, and seized his goods at Moonlight. The one. was at the lower township, and the other called Fred's store — both in Moonlight Creek. I placed a man in possession on Monday, the 4th inst. I then came to town, and visited the lower store on Friday, and saw that the man was there. After coming back to town, I issued the interpleader summons, as Russell had claimed the goods. When I seized, Millard was not present at either of the stores. I saw him last Saturday. He said he was coming down to make arrangements with Cleve and Lahman. Russell offered me L 2 as bailiff's fee to give up possession. Mr Perkins : Mr Russell offered me 8s per day for five days possession. I served what I believed to be a true copy of the summons on Millard. When I was on my way up with the distress warrant I met Millard and told him what I had got; . He told me to go up to his store, as there was plenty of horse feed there, and wait till he came. Millard did not then tell me that the goods were Russell's. He said he wanted to see Morris Levy through, it as he started him on nothing. I executed the warrant on the lower store on Sunday, and on the other on the following morning. The lower store, goods and all, is not worth LlO. When Russell came in at the upper store and told me I had taken illegal possession, I told him to give me notice, and I would be at the lower store. He offered toe L 2 as bailiffs fees, which I refused, remarking that it was not security for me. The man in possession of the lower store told me that Millard had left him in charge. The man at the upper. store said he was there for Millard, but he believed there was an arrangemeut between him and Russell.: . By Mr Guinness : When I seized Mallard told me that he intended in a few days to remove all the goods to the upper store. I did not believe -there was enough in the lower store to satisfy the warrant. On the Sunday the sign over the Tipper store was " Fred's Store." ' Itwas taken down early on Monday lnoniing before I levied. The storeman told me that he had orders to take it down a week before. I took possession of it and have it now. At the upper store Russell showed me an agreement under which ho said the place was his. Mr Perkins said that as to the lower

store the seizure was illegal, having been made on a Sunday ; and as to the upper store he was prepared to prove that there had been a bonajide sale for a valuable consideration. He called Robert Russell, a storekeeper at Moonlight, who said : My business-license was taken out on the 31st March. I purchased Millard's property at Moonlight on the 25th March. I produce the salenote. The consideration was L3OO, and the property was two stores, with all the goods therein, and the book-debts. The purchase was made in Grey mouth on the date mentioned. I paid the amount ,in two bills, one at a month for LSO, and the other at three months for L 250 .' Lhave since heard that these bills were paid to Mr Levy. Next day 1 went up and called in at the foot of. Moonlight Creek. A man was there, to whom Mallard said I had bought him out. During the next' few days' I remained at the stores, and all the customers who came in were told, that I had bought Mallard out. I left a man named Nelson at the lower store while we were. away at the upper store. Between Saturday night and Monday morning I went over the stock in the upper store, and made an agreement with the man who was there (Angus M'Fee) before I came to town to remain fmd conduct.the business, especially for the purpose of getting in the book-de'bte. It was made in writing, and I put it in. I told the storeman to pull down the sign, and he said he would do so whenever he could get a ladder from " some' chaps up the creek." I came to town, and in a few days I went back again and found a bailin in possession, the door shut, and a noticeof sale stuck on the door. At the upper store I saw Hall, and told him. he was illegally there, as I had purchased the place. I asked him to wait till I gave him a written notice, but he would not wait, and went away to the lower store. I informed persons generally of the purchase. . The stores have been closed since, the 3rd inst.,. when the seizure was made. The business has been ruined, because the men have been compelled to go to White's store. . ; Cross-examined by Mr Guinness : On the' day of the purchase I was not aware of Millard's indebtedness to Morris Levy. I thought he might owe him about L2OO. Millard did not ask cash.. The transaction was all done in Levy's ; but he was not present. He might have known of the intended purchase.- I did not know where the bills were going when. I gave them. Millard told me he was indebted to Levy, and that he wanted his account settled. From that I inferred that the bills would go to Levy. I have since learned that the bills went to Levy; but I did not see them paid over. There is no understanding between Levy and, me as4o, the business. I have not travelled for orders for Levy. I have transacted some business for him in connection with my own business. He has several times l asked me to come into his employ, but I have always refused. I did not know that Millard was indebted to Gleve and Lahman. I do not remember telling Constantine that Levy had bought Millard's business ; I believe I said I had bought it. I offered to sell the business to Alexander White before the execution was issued, I think about four days after I had purchased it. I knew the value of the property I was purchasing ; I thought it was worth over L4OO. There was L 258 worth of book debts, Ll5O worth of stock, adding packing on the heavy goods: There waa no understanding whatever that the estate should go back to Millard, or that he should have any interest in it. By the Bench: It is not a usual or business-like way of doing business to buy without seeing the stock #rlx>oks. Levy .knew when I was buying the business. I never had a conversation with Levy as to purchasing Millard's store before it took place. Millard told me the amount of business he was doing, and from that I inferred that I could do a fair busiuess. Mr Guinness opened the plaintiffs' case, which was simply that the sale to Russell i was not a boiiajide one, and called Alfred Millard, who said': I was a storekeeper at Moonlight, and am indebted to Cleve and Lahman. I wrote *tp them that I would be down about St. Patrick's Day. ' I did come, and saw them. lam not sure that 1 told Mr Cleve that I had sold the property about the 25th March. I came down on the 25th March, and ■ brought money with me, whicE was paid to i>e Costa, through Mr Levy. ' De Costa had summoned me, and I brought down sufficient money to pay him. Levy said he thought he could get a reduction made in some of the items. I signed the sale-note in Levy's store, between one and four o'clock in. the afternoon. Levy was press-, ing me, and Russell had previously talked of a partnership. We talked about the matter. I never heard Mr Raphael ordered by Levy to go up and take stock at my place. I told Russell the amount of my debts and stock. I was asked both by Raphael arid Russell. Raphael was not present when the agreement was made. By the Bench : Levy was present when the selling out was talked about. We went from the wholesale to the drapery store, Avhere the agreement was drawn out. I asked L 350, but Russell said he would give only L3OO ; and, if iti turned out good, he might give me a little more, and some employment. I did not ask him how ho was going to pay me, but I thought that if he gave me bills,: and Levytook them for my account, it was all right. By Mr Guinness : I think Mr Russell . wrote out the bills of exchange, I gave' no schedule in writing of the goods he was buying to Mr Russell. I paid the bills I got from Russell to Levy. I know very little about bills ; they are things I have had very little to do with. I have no property at the present time in Moonlight. ; I told Levy that it was the whole of my property I was selling to pay him; ' It was understood before the sale that whenever it was offected.the whole of the amount was to come to him. At the time there was LI 25 worth of stock in the one store, and L 75 in the other. The upper building cost me LIOO, and I valued the lower one at L2O. The book debts iti ith'e tipper store were about Llßo,and in the lower one IAO. I produce the receipt I got from Levy for the bills I paid Mm. i owe him over LIOO yet. ■•■ To. the best of my recollection I never Baid to Mr Cleve that I: could, pay off 80s in the pound. I may have said 20a in ; the 1 pound; When I made i*;o sale I put my debts down at Lo'JO. iij alteration was made in the keeping of the books after the sale. Mr Russell put me in charge, and told met to take the -sign down which I did. Mr Levy advised me to get out of the

business someway, and held out threats of a criminal prosecution. Russell then came in, and I commenced talking about selling but. The whole affair was done under great excitement on my part. I remember meeting the bailiff, Hall, at the foot of Moonlight Creek, when he told me had a distress-warrant for me. I told him that I had sold the property to Russell, and that I had none there now. I did not tell him to go up and wait till I came. I met Constantine at ..the lower store. He was very much excited, and threatened me with a knife. I did not say to him, "Whoever told you I sold out told you faise," and I do not remember him replying that it was a. lie/- The ivords you repeat were neveranade use of by me. I told him I would pay him, though I should have to borrow the money. Cross-examined by Mr Newton : It was a bonafide sale to Mr r RiisselK 1 There was nothing said about the bills being handed back by Levy. Antonio Lardi is still due me about L2OO. I told Levy so. Tt is but of this sum that 1 expect io pay the balance of my debts. Mr Russell might not have known about the arrangement that the bills were to go to Levy. He was not present when they were given. i Alexander Constantine, boatman, said : On the 25th 'March, Millard told me to call at Mr Levy's for some goods, and at Coates' for other goods ; this was at nine j o'clock in the evening. :I , was at Morton's hotel. On the following morning I went to Coates' and asked for Millard's goods, and he replied he had none in stock. I then proceeded to Mr Levy arid asded if he had anything for Millard. He replied "there is' ati brderihere,. but I won't -send them up, as Russell is about to proceed to Moonlight, and I must wait till hearing from him." l askedlieyy whether he thought it was a "cooker" there, meaning a failure, and he replied, "No, I don't think so ; he is right enough." I then went to Dupre and Rensch and got a; keg of port wine. ; This was in accordance with Millard's order. Tlie boat then-r went away to Moonlight and discharged " cargo and returned. In consequence of a report having reached me to the effect that Millard had sold out I went to Moonlight, when I met Russell, who was trying to sellout the- store (only two days purchased by him) to Alexander White. I enquired from Russell how he bought him but. I asked, ■* * ; What with£ with money, or what ? " He then said, " With bills from Morris Levy." This conversation took place at the foot of Moonlight. In. the morning I^went up to Millard's lower store. Russell accompanied me. I saw Millard there. I said, "What is this I hear. Have you sold out ? " and also, " You ordered goods, and asked me to bring them up." Millard replied, " Whoever told you I have sold out has told you false." I answered, "you tell a d — -d , lie, for the man who bought you out wanted to dispo ! se of his interest in my presenpe. " He: thep } said, f You need not be in a hurry, nor'get into a passion, I have not sold but yet ; and if they do try. to sell .me Mr Levy, will find his mistake. I only gave ' Levy security because I thought I had more stock than I really have. I only dealt with. Russell as Levy's man. lam only removing the goods from here to the upper store as there is no business to be done here." After this Russell, Millard, and ..myself came down to' the foot of Moonlight. On the way down I remarked it was a d d swindle on the part of Levy telling- me all tho time that_Millard was right, yet to buy the , place,- ; and throw me over. Russell replied that Levy had bought the place, and would lose; money by it. We slept that night at White's, and Russell, after ; a little, ; conversation, gaye me distinctly to understand that Levy was the real purchaser of ; the store, and he (Russell) did not care how soon he got rid . of the thing.' I consider the stock at the upper store .on the 26th or 27th, as seen by «ne, worth L2ooodd.' This is exclusive of the store. I deem the two stores worth LIOO. The two horses, Mr Fein, the packer, I am given to understand from Mr Levy, offered to give L 45 for. . H. H. Lahman deposed as to the conversation he had with Millardj and also with Levy, /the latter of whom told him ; that,he ..thought Millard r \^as , all right, and that he would not press him, as when he was in a gbod ■position he would press him upon a criminal charge. Morris Levy, merchant, Greymouth : I remember 1 Millard selling out" to Russell. Millard asked me to take Russell's bills, which I 'did. /If the bills were dated on the 24th the transaction must have taken place then. 1 purposely absented myself from the place while they were negotiating the matter. Millard represented the estate, as being worth, fro in, L4OO to LSOO. Mr Raphael, in my employ, had been to MUJard's store, gome, weeks before. •■•••>■ • ; '^ • Clem. .Winter* agent of the Bank of Australasia, said the' bills in question were not made payable to the Bank. Levy could obtain them at any time with his sanction. He had not the bills "with hinij but would forward them. Several other witnesses were examined, and it was proved that the bills were dated on the 24th March, arid not the ■ 25th as sworn by j other witnesses. After Mr Guinness had addressed the Bench for the plaintiffs* arid Mr Newton for the defendants, the Magistrate reserved judgment till the following morning. . _ .' ( t ' -L Tuesday, April 12. . (Before C. WTiitefoord, Esq., R.M.) Cleve and Lahman. y,. Millard. — In this case the Magistrate delivered judgment as follows : — I have taken particular pains in arriving at a conclusion in this case, as it is one of public importatncel and will have some ,- effect . iti other proceedings that may be' brought before me hereafter. The .case;; as presented, resolved itself into one question, namely — whether the. transaction ■■ was b<ma~ Jide,iAni accordance wifch^the statute of Elizabeth, and whether the, sal^ to. Russell was "of a .secret or a private nature. Commencing* at the starting point, I find that Russell bought the -property from Millard, butj did not pay cash or money therefore^ the consi- ■■ deration being acceptances i drawn by Levy and accepted by Russell. Mr Russell stated that the bills were made and given on the day the sale took place, yet; on referring to those :bills,. l find they are dated 24th March,. and tie sale note the 25th. Clearly, if Mr Russell's evidence is correct^ the sale-note was prepared after the bills had been given. Consequently the sale-note must, a fortiore, have been execued thereafter In Addison on Contracts, I find the law thus defined— " The question is, whether one could*; from all tiie surrounding circumstances, believe

that the bill of sale was intended to have operation in favor of the claimant tinder it, and to confer upon him all the rights of ownership, or whether it was contrived and intended to be used for the benefit of the grantor. Martin v. Podger, 2W. 81., 700." What, then, are the surrounding circumstances? Mr Russell mccis Millard at Levy's store ; Levy sees him there also ; Mr Levy has previously been speaking to Millard, threatening him. with criminal proceedings unlesss his account was paid. Millard says he wanted to make Morris Levy all right, as he was the heaviest creditor. On cross-examination, it transpired that Levy was constantly in and out of the room, and was present during the greater part of the interview. The evidence of Constantine would not have been of much importance, had it not been that it was corroborated by the testimony of others. In the case of Watkins v. Birch, the Judge, at the time, left it to the jury to consider whether the change of property, by the assignment and subsequent sale made to the pla'-ifciff was notorious at the place ; secondly, whether the assignment had been executed with intent to defraud the general body of creditors, or even a particular creditor. And, according to the ruling in Troyne's case, it would appear that secresy or want of notoriety of the transaction is, as we have seen, one of tho signs of fraud and misrepresentation. In that case, the consideration for the bill of sale was not only an antecedent debt but a sum of money, advanced to enable the debtor to carry on his trade. Millard owed Levy money. He sold the property to a man ostensibly in the employ of Levy. The bills are passed to Levy as well as drawn by him. Levy was present during the greater part of the time, and Millard declined to sell unless Levy would take Russell's bills in part payment of Mallard's debt. The question in this, as in every case, is. is the transaction bona fide, or is it a contrivance to defeat the creditors ? Do the circumstances of the case rebut the presumption of fraud 1 The deed or sale-note, or whatever it may be termed, should represent the real contract between the parties (Dewey v. Bayton). lam of opinion that the salenote produced does not represent the real contract between the parties. It appears to me remarkably strange that a man should purchase a property at Greymouth 38 miles distant, without having the slightest opportunity of testing its value, or knowing the state of the business. His Worship carefully reviewed the evidence at great length, and said he had no hesitation in finding a judgment for the execution creditors (Cleve and Lahman) with full costs.