RESIDENT MAGISTRATE'S COURT.

Grey River Argus, Volume IX, Issue 749, 5 November 1870, Page 2

RESIDENT MAGISTRATE'S COURT.

(Before W. H. Revell Esq., R.M.) Fatjlkner and Simmons v. Smith and (Vakmoil. — This was an interpleader ummons to prove the ownership of goods md premises seized by the bailiff at tfaori Creek, Eeight-mile, under a disiress warrant issued at the Greynouth Resident Magistrate's Court, in ;he case Simmons and Faulkner v. Smith. Brothers and Co. The execution credi;ors believed that Smith was Wannoll's partner, and therefore directed the bailiff bo seize his interest in the business, but Warmoll claimed the whole of the goods md premises as his own, and disclaimed any partnership with Smith, hence the Interpleader to prove the ownership. Mr Perkins appeared for the bailiff and the execution creditors (Faulkner and Simmons), and Mr Guinness for the claimant (Daniel O'Connell Warmoll). Thomas Clapham, bailiff, stated that be had levied under a warrant in the case of Faulkner and Simmons v. Smith on goods in a store in Maori Creek, supposed to belong to Smith. There w-.s no name up on the store. He was ejected, but re-entered again, and was still in pos- . session. When he first levied on Tuesday he saw Warraoll, and had some conversation, while he was waiting i»v the return of Smith, who lives there. When Smith came in he said he had offered Faulkner LlO, which he would not take. He then told Warmoll what he was there f or — to seize Smith's iuterest in the business, whereupon Warmoll kicked him out, saying that Smith had no interest in the business whatever. He did not show Wannoll the warrant on the day he first seized. On Friday morning, when he again entered into possession, Smith said something to the effect that he thought Faulkner had pnt his foot in it this time. He was not asked to show his ; warrant before being pushed out, but he did show it whenever asked. Daniel O'Connell Warmoll was called and said he was a butcher, hotel-keeper, and storekeeper, at Maori Creek sine May, 1869. He had a partw^ named Murphy, with whom he dissolved, and no person had any interest* in his husinesa since December laafc. " The bailiff said he seized for Smith and Co. Smith was only employed; by him, and was regularly paid his wages, at L 2 per week. Last Saturday week, Smith gave him notice ta leave in consequence of having been summoned. He produced his receipts for goods purchased dnrjng the last six months, all of which were in his own name, and no mention of Smith's name. Some of these receipts were from Faulkner and Simmons. He overheard it reported that Smith said he was his mate ; but on questioning him he denied it. The bailiff seized. goods and property to the value of L 100 0; Faulkner's claim against Smith was only L 43. Smith left' his employ on Monday ; the receipt for his last week's wages was produced. ; — Arthur Smith said he had been in the employ of Warmoll for the last six months, at L 2 per week. He often served behind the counter, and had access to the books. H« gave notice to quit Wannoll's employ on Monday week and left last Monday, when he signed the receipt for his wages. He was leaving the district .because he was being summoned for all the debts of a claim. He never had any interest in Warnioll's business, never stated to any one that he had, and never lent him any money, because he never had any. John Cox, who is in Warmoli's employ, gave corroborative evidence. Hartley Stnddard, manager of the Marsden Tramway, proved that the business had always .been carried on in the name of Daniel O'Connell Warmoll. He knew Smith, and heard a report that he was a partner. He asked Smith if this was true, when he denied it. This was the claimant's case. * * Mr Perkins then : proceeded : to prove that Smith was a partner in the business, and called David Thomas Faulkner, the execution creditor in this matter, who said he had known Warmoll and Smith for about eighteen months. Smith appeared to have as much to do with, the busness as Warmoll. When he asknd Smith-to pay an old account, he said he had sunk all his money in buying a share in Wannoll's business. He had transactions with Warmoll afterwards, and rendered the accounts only in Warmoli'a name. Smith distinctly said he was WorroalFs mate. Mrs M'Kinnon, residing at Eigh Jmile, said she had been in the habit of y dealing with Mr Warmoll, and produced /} a number of receipts. Three of them were signed by Arthur Smith, and the money received by him. Warmoll and sometimes Smith came for the money, and she paid either, because Smith told her he was Warmoli's partner * They both had often drinks at her place, and they were always deducted from the accouuta. There was no distinction made between them. She had received bills fwnn Faulkner and Simmons which were paid and receipted . in the same manner as Warmoli's bills. She once, asked Warmoll if it was true what Arthur had told her, that he was a partner, when Warmoll. denied it . John Lockry, baker, Eight-mile, had known Smith about twelve months. He was about Warmoli's place, acting generally about, as if for himself. Smith owed witness money,, and when asked for it, he said the claim was no good*, and he could get no money out of " the other place." He asked "what other place ?" Smith replied " Dan's place ; I have been mates with him ; it was my money' that started the place first." In about a month he spoke to Warmoll, who told him that Smith had nothing whatever to do with the place, or business. Afterwards he got Smith and Warmoll face to face, when Smith denied having said what he did, Cross-examined ; He had dealings with. Warmoll and always mad© out the bills in his name only. Warmoll once told him that Smith had lent him money that he ought to have paid his debts with. Sydney Olden was called, but proved nothing particular. • - : John Millar, cattle-dealer, had sold sheep to Warmoll, and was paid by him. Warmoll said his partner, Smith, was digging, and he would go to him and get the money. When he returned he^id the money, and the sheep were passed over. Smith returned with him. This was the first transaction between them, more than twelve months ago. That was before Murphy was in partnership with Warmoll. Smith had since been about the store, and he (witness) had always considered him a partner with Warmoll. This was the . case for the execution creditor. Mr Guinness asked leave to call re*

butting evidence, on the ground of being taken by surprise by Millar's evidence. The Magistrate could not allow this, as it would simply amout to a denial, and the parties now knew precisely what they had to deny. After counsel had addressed the Bench. The Magistrate said the evidence was certainly most conflicting, but after duo consideration of the whole of it he would order the bailiff to withdraw from the premises. ASSAULT. Dat isi O'Connell Warmoll was charged with assaulting Thomas Clapham, a bailiff, while in the execution of his duty, at Maori Creek, on the 25th October. This case arose out of the last. The bailiff stated that under a warrant from the Resident Magistrate's Court at Pounamu, he entered Warmoll's store at Maori Creek on Tuesday, at noon, and enquired for Smith. He was not at home, and the bailiff waited for some hours before making known his business to Warmoll. When Smith arrived he informed him that he had come to seize his interest in the business. Warmoll, as soon as he heard it, took hold of tie bailiff by the arm, said "Out you go," pushed him out, accompanying it with a kick behind. In cross-examination the bailiff stated that when he arrived at the store he did not mention his business. Warmoll asked him to have a drink, and to have dinner. He then went with Warmoll to the christening of a claim, drank brandy, champagne, porter, and wine, sang three songs in the tunnel, and came back to WarmoH's store with the mates in the claim, and were all "jolly." He was neither drunk nor ayber; somewhere between the two. Smith was then present, and the bailiff told him about the warrant, but did not show it, and Warmoll turned him out. He returned on Friday, when he was received with the greatest civility, sat at WarmoH's table, and received every assistance in making up his inventory. For the defence, Mr Warmoll stated that the bailiff remained in his house some hours, and did not mention his business. When they returned from christening the claim, there were ten or eleven men in the bar, " all jolly," when the bailiff said t > them, " I've got possession of this place." Defendant said, " Then out you go ;" took him by the arm, and pushed him out, but did not kick him. — This was corroborated by Patrick Breem, John Cox, and Arthur Smith, who were looking on at the time, .and must have seen Waniioll kick the Jbailiff if he had done so. The last witness Added, that after the bailiff was turned out, ho looked in through the butcher's shop, and had another drink with the company. The Magistrate said it appeared that the bailiff had failed to do his duty properly. When he entered the house first, he ought to have produced his warrant and stated his business, and not gone loafing about the. place for hours, drinking until he was "pretty jolly," as had been "sworn to. His conduct was not what it should have been ; but still it had been admitted that when he did state his business he was ejected. There was a penalty of,'L2o providedfor persons who obstructed bailiffs or officers of any Resident Magistrate's Court in the execution of- their duty, and the defendant had made himself liable fop that 'penalty ; but, in consideration of the manner in which the bailiff had acted, he would only impose the fine of LI and costs. • ' .