RESIDENT MAGISTRATE'S COURT, GREYMOUTH.

Grey River Argus, Volume XII, Issue 1496, 21 May 1873, Page 2

RESIDENT MAGISTRATE'S COURT, GREYMOUTH.

Tuesday, May 20. (Before W. H. Revell, Esq., R.M,) H. Kenrick (trustee in the estate of E. A, Ancher) v. G. Perotti. — An action to recover L4O, as damages for the wrongful conversion and detention of certain property, the effects of the estate of E. A. Ancher. Mr Newton appeared for the trustee in Bankruptcy, aud Mr Perkins for the defendant. From the evidence if appeared that the bankrupt leased the Commercial Hotel, Greymouth, from the defendant, who held in his hands as security for payment of rent, and as guarantee against loss by wear cr tear of furniture, tire, and other causes, a sum of L 250. The lease was produced, and a. very stringent clause in it was read, by which the lessee bound himself that if he should infringe any of the covenants therein contained, such infringement would entail the determination of the lease, with the forfeiture of the money held as security, without the intervention of any legal process. In pursuance of the right thus conferred, the defendant entered the house on 22nd March and demanded the arrears of rent due. Ancher could not pay the money, and the defendant proceeded to take possession of the stock-in-trade and other effects to the value, as sworn to, of about L3O. At this point the dispute arises. Ancher swore positively that he did not consent to the seizure, but that he did not oppose it, for he did not think he had any power to do so, and from a misapprehension of the law, he thought Perotti was acting in a perfectly legal manner and in accordance with the covenants of the lease. On the 26th March Ancher filed a declaration of his insolvency. In his examination by the Provisional Trustee in Bankruptcy, and in the presence of the defendant, he denied that he consented to the appropriation of the goods by Perotti, but he did not object for the reasons stated. — In j cross-examination by Mr Perkins, the list of the liabilities of the insolvent was produced, and it was shown that the name of Perotti was not among the creditors, although it was admitted TJl26 were due to him for rent. The witness Ancher explained that Perotti, when he seized the stock, said he would not make a further claim on the estate, and he (the witness) while admitting the defendant's clam for rent, thought that holding the security he did, and then getting the stock-in-trade ol the hotel, his claim was amply satisfied, and he did not insert Perotti's name in the schedule. — H. Kenrick, Provisional Trustee, proved the portion of Ancher's evidence with reference to what passed at the examination of Ancher, in the presence of Perotti. — \ Mr Perkins moved for a nonsuit, on the ground that as the agreement about the seizure of the goods took place before the insolvency, it was done before the title of the trustee had accrued, it was not competent for the trustee to bring his action in trover. The learned gentleman contended that the defendant was acting strictly within the powera conferred by terms of the lease. Ignorance of the law generally was no excuse for the breach of it, and in this case, if Ancher gave his consent to the seizure under a misapprehension of the law, the defendant's right could not be affected, because Ancher had the power to permit the seizure before his insolvency. He quoted from "Woodfall, on the relation between landlord and tenant, under the head Bankruptcy, page 375," where it was laid down that a landlord had no lien for rent after the removal of goods from the premises, therefore if the defendant had permitted the removal of the property he would endanger the his claim altogether, and again — "That payment of rent after an act of bankruptcy, under threat of distress, was valid, and could not be impeached by the assignee." Mr Newton replied, and denied altogether that he intended to set up up a plea of mistake or ignorance of the law on the part of the bankrupt. He denied that any agreement was ever made by Ancher to consent to the seizure, and he could not legally do so within three months previous to his insolvency without giving Perotti a fraudulent preference. There was no threat of distress, and there was not any occasion for Ancher to consent. The insolvent was virtually, within the jurisdiction of the trustee three months before the bankruptcy, and any agreemeut of the nature alleged, made during that time would amount to a fraudulent preference, and would therefore be void. — The Magistrate overruled the motion for a nonsuit. — The defendant said he took possession on the 22nd March, after demanding his rent and not receiving it. Afterwards he made an inventury of the stock-in-trade. Ancher was with him, and assisted him, but made no objection. The list produced was a correct one, and the | value of the goods was L3l 9s Bd. A day or two afterwards he told Archer he was willing to take the goods for the balance of rent due him, and Ancher said, " Very well — all right." He told Ancher he would not come in as a creditor in the estate, and Ancher did not dissent from the arrangeraens. After receiving a letter from Mr Newton he again saw Ancher and told him the trustee wanted the goods or the value of them. He asked Anchsr if he recollected the agreement they made at the time of the seizure, and he (Ancher) said he did certainly. When he [saw the trustee in the presence of Ancher, the latter said in effect that the agreement was made. Ancher was afterwards put in the house to carry on the business for him (the defendant). After taking further evidence and hearing arguments on both sides, his Worship reserved his decision until Friday. H. Kenrick (trustee Ancher's estate) v. Alex. Montgomery. — A claim of LlO 14s for board, &c. Verdict by default for the plaintiff for the amount claimed with costs. Kennedy Bros. v. Ryan. — Judgment was confessed by the defendant for L 53 Is lOd with costs. J. Hughes v. Robert Pce I.—A1 .— A judgment summons for LI 11s. The defendant was ordered to pay 15s per week. Same v. David Brown. — A judgment summons for IL7 7a 6d, The defendant was examined as to his ability to pay. He denied having washed 100 loads of washdirt last week, or that he had laid in a oargo of groceries as alleged by the plaintiff. The defendant was ordered to pay L 3 per month, or in default of any payment one month's imprisonment. Guinness v. Buckingham and Hamilton and Co v. H. F. Audrews— were enlarged i for one week. : ; ;