RESIDENT MAGISTRATES' COURTS,

Grey River Argus, Volume IX, Issue 676, 19 May 1870, Page 2

RESIDENT MAGISTRATES' COURTS,

— ♦ — GREYMOUTH. Tuesday, May 17. (Before W. H. Revell, Esq., R.M.) CIVIL CASES. Judgments by default : — De Costa and Co. v. Murphy, L 8 15s 2d ; Kerr, Keogh and Co. v. W. Smith, Ahaura, L 5; W, M'Donagh v. J. J. Cochrane, 19s ; Mansbn and Co. V.' Dmry, L 2 ; Thomas and M'Beath v. Crawford, LI 153 lid ; R. Brown v. Jno. Brook, L 2 12a 6d ; Orr and Co. v. Owen Bodeiij L 2 6d. ' Kerr, Keogh and Co. v. J. S. Ward. — ," No service of summons. ; ; ! Same v. I. O'Donnell. — No return of summons ; adjourned to 26th inst. ! Corporation of Greymouth v. W. Rowe, Westport. — No return of summons ; adjourned to 26th inst. I J. W. Hall v. T. Brown.— Claim of L 6 2s lid. Judgment for plaintiff; defendant ordered to pay 10s per week, or in default one month's imprisonment. ! I J. Whittakerv. Bird.— Claim of Lls. pase dismissed with costs. 1 G. Simmons v. J. Lee.— Claim of L 3 3s |Jd. Judgment confessed for L 2 14s 9d and costs. Immediate payment ordered, far 14 days' imprisonment. | Stewart and Co. v. M. Smith.— Claim bf LB. Judgment for L 2 103 and costs, Which amount the defendant was ordered to pay in one week, or 14, days' imprisonment. ; Same V. Same. — Claim of L 5. Defendant was ordered ■to pay half the amount in one week; and the balance in 14 days from date, or 14 days' imprisonment. • • Corporation cf Greymouth v. Jas. Lee. : — A fraud summons for LY l9s 6d. An ;order was made for payment within one iweek, or one month's imprisonment. Maclean and Co. v. Renriie and M'Gregor, Dunedin. — Judgment for plaintiffs, L 77 9s 3d and costs. ; Faulkner and Simmons v. H. King. — L 8 ills. No service of summons. ... ■ . W. Kelly v. M. Feehan. — Judgment for plaintiff, L 4 15s 6d and costs. J. M'Davitt v. Owen Boden.— A fraud summons for L 3 14s. No appearance of defendant. A warrant was orderedto^ issue for his apprehension^ '■'.'■ jrf Orr and Co. y. W. Ga^nej^a^o return Of SUmmohs.,^P— '-''" ' : : Ma^cgiE^Fyfe v. Madame Lenel. -7LlO. Judgment for L 8 and 'costs. ' . Jakob Lichschiendal v Philip M'Carthy; — Claim of L2O, damages for non-delivery of two hogsheads of ale, under a written agreement, made on the 24th May, 1869. The agreement ' was produced, 'and admitted, but the defendant pleaded his bankruptcy, and produced ,his order of discharge as a bar to the action ; to which counsel on the other side replied that the cause of action did not arise until thedemand for the ale was made, under the agreement, and that was after the defendant's bankruptcy, so that the discharge could not bar this action, as the debt or demand was riot provable under the bankruptcy. The Magistrate reserved his. decision until Friday morning. Strike and Blackmore V. John Heron — Claim of L3O for beer supplied. Mr Perkins appeared for plaintiffs, and Mr Newton for defendant. W. F. Strike said he knew the defendant, who was a hotel-keepei in Gresson street, and, .indebted to his firm L3O for beer. The last cask he had ,vas ordered and supplied on a Saturday, and on the Monday he called a meeting of his creditors. He objected to sign the agreement because he believed Heron got the last hogshead of beer.under false pretences, but he agreed to sign the deed if Heron paid in full for the last hogshead. Cross-examined: Mr Blackmore was his partner, and he believed signed the agreement with the other creditors. (Agreement was produced, and the signature of the firm was admitted. ) John James Blackmore said he signed the agreement at the meeting of creditors, but previous to it he understood that Heron was to pay the last hogshead of ale in full, and upon that condition the agreement was to be signed. Heron had the goods after he knew he was insolvent. He would have signed the deed if the amount agreed upon had been paid. Mr Parkinson, a creditor, knew of this agreement. Witness was not present at the second meeting of creditors, but he remembered at the first meeting that a summons was pending against the debtor. Cross-examined 1 : He did not remember Mr Hill asking about the summons, and his saying it would be withdrawn. Remembered yesterday telling Heron that it would be all right, arid afterwards instructing Me Perkins to see that the first engagement was carried out. It was understood at the meeting that no creditor should press the debtor while arrangements were pending. Re-examined: 'That was the arrangement previous to the second meeting. By Mr Newton; lam one of the trustees, and signed the inventory. There had been no refusal on the part "of the debtor to comply with the terms proposed at the meeting referred to. J. Heron : I had the goods from the plaintiffs on the. Saturday, before I called the meeting on the MondaVj because the hotel could not be out of beer, any more thaji it could be out of kerosene. The plaintiffs knew that I was about to call a meeting. The meeting was held on Monday. Mr Strike was the chairman, and put the resolution, after asking if there was any amendment. The motion was carried unanimously to agree to the composition I offered. Afterwards' Strike said his firm would not sign the deed, because they felt aggrieved about the last hhd. of ale. I repliedthat I intended to pay 20s in the pound, and that would be one of the first payments I would make. Mr Perkins came down to me last night, arid asked what arrangement I was pre-< pared to make with Strike and Blackmore, because, unless I gave some security for the payment of the last cask of ale, they would proceed on the summons, and not sign the deed. That was past telegraph hours, so that I could not file my schedule. I refused to make the arrangements he wanted. By Mr Perkins : You wanted me to make the plaintiffs' a preferential claim, which I refused to do. Previously they asked me to do so, although it was in the schedule, and they led me to believe that there would be no opposition. I have been asked to leave . the last hhd. of ale out of the schedule, but, I refused. At the second meeting of creditors, I asked Blackraore "How would it be about the summons ?" and he said it would be withdrawn. Some of the creditors also asked the same question, and got the same answer. Mr Newton, in opening the case for the defence, said an arrangement was entered into by the' ■"■■■■■• " ■ • : .!- * I

creditors to take 103 in the pound, to be paid in a certain manner. That- agrees ment was reduced to Writing, arid 'signed, by the whole of the, creditors at tho meet-, ing, including one of th^ plaintiffs! B»t last. -night tfie solicitor 'to the, plaintiffs went to defendant, and said tliaV'unlesiJhe ; :riitad%.;:a. ../fraudulent preference in favor of the plaintiffs, they would refuse to fulfil the promise they had made in writing, and would proceed to obtain judgment on- the aummona, and put a bailiff in defendant's house. Mr Perkins objected to the last, statement as not l>eing correct. Mr Newton continued 1 hat he could give evidence of the fact ] limself if necessary, and, he characterised, ■he plaintiffs' conduct as a gross breach &f faith. He palled W. Hill, manager ; ! or Oowlishaw and Plaisted, one of the ;he trustees, who said that at the first neeting of creditors Mr Strike was in the jhair, and the offer made by the debtor Was considered agreed to. At the second meeting a different arrangement was entered into. There was no mention made that Heron should pay plaintiffs .the last hogshead of ale previous to tlieir signing the deed of composition. |A.t the first meeting this hogshead of ale jWas alluded to. At the second meeting it was known by me' that' this summons Was '■pending. A was asked Mr [Blackmore about it, arid I believe the reply was that ; of course.it would, be iwithdrawn. I will not swear ..pbsi- .. jtiyely, but I believe the answer given, jwas that the summons would not be proiceeded with. Mr Perkins argued that the' ■c ; jcr.mstances showed the fraudulent act ito be on the jpart of the debtor, whonow! fought protection under the deed, and I that it was no fradulent preference that 'was sought by the plaintiffs. There was , nothing wrong in their asking for the payment of the last hogshead of ale, as it ; was upon that understanding they 3igned the deed. It. was understood that the whole of the creditors knew of the transaction. He had made the; offer to stay, proceedings under the summo3is r 4fo""gfve the debtor an opportujj^jjr^^giinw tig schedule. Mr^^^tori : I must -alsosta^e that^Jgey wished to force him into Court. Mr Perkins: i^Tes, arid if he ; does not satisfy this amount, we will try and punish him in the Bankruptcy Court. We are, still willing to give him time to seek protection elsewhere. The Magistrate said that at' the second meeting of creditors an agreement was entered into by all the creditors present, and signed by Mr Blackmore. He ought then to have stated what he was about to do, and not endeavored to mislead the other creditors. The plaintiffs Were bound by the agreement _ arid by tlie law. The case Would therefore be dismissed. Mr Perkins asked that a nonsuit should be entered, because if the agreement 1 was not carried out by the rest of the creditors 1 the plaintiffs could not sue^ arid would thereby lose the whole of, .their claim. Mr Newton did not object to the nonsuit, although it ought to have, been asked before judgment was given. The Magistrate saidthatias a judgment would jpjice the plaintiffs in such an awkward position with regard to the whole of their claim he would enter up a; nonsuit, with costs against the plaintiffs* :