Resident magistrate's Court.

Marlborough Express, Volume III, Issue 143, 7 November 1868, Page 4

Resident magistrate's Court.

BLENHEIM, TUESDAY, NOV. 3, 1868. [Before S. L. Muller, Esq., R.M. ; His Honor W. H. Eyes, Superintendent; and James Balfour Wemyss, Esq., J.P.] BANK or NEW ZEALAND V. GUNN, Mr. Pitt requested that this case should be taken first, as it would very likely determine those of Gorrie, and Dodson and Ball. Mr, Nelson said Mr. Gome’s case differed from the others, as certain goods seized by him, as a pig, fowls, &c., were not claimed by Mr. Sinclair. Mr. Conolly supposed one case would settle the whole. He did not claim against Mr. Gorrie, except for such portions of furniture as were in his possession. Mr. Pitt raised an objection, which he considered important; in the summons issued Gunn was made defendant in the case, and he would like to know by what right Mr. Sinclair appeared. Mr. Conolly submitted that the summons was quite regular. This was an interpleader under the 70th section of the Resident Magistrate’s Act, in order to substantiate Mr. 'Sinclair’s claim to certain goods seized.

Mr. Pitt quoted the 72nd section of the Act, and urged that Mr. Sinclair could not appear; the only persons who could appear were the parties to the action, and those claiming the goods. : The Chairman said the Court had power to amend the summons. Mr. Pitt’s client had been summoned at the suit of Gunn, and would be taken by surprise were Mr. Sinclair’s name added. \lr. Conolly said the summons might have been more concise, but he was surprised to hear technical objections made. They must have been perfectly well aware that it was not at the instance of Gunn, but some third person. If the Court ruled that the summons was not sufficiently correct, he should apply for leave to amend it, and then the opposite side might apply for an adjournment if they thought it necessary. The Court thought it might have been made more clear, but did not think it fair to impute anything of a vexatious character to the opposite side. Mr. Pitt disclaimed any intention of imputing any thing of a vexatious nature. The Chairman remarked upon the absence from the Act of a form for an interpleader summons.

The Summons was then amended at the request of Mr. Conolly. The case of the Bonk of New Zealand, and Dodson and Ball v. Gunn was then agreed to be taken first.

Mr. Pitt ' Appeared for the plaintiff, and with him Mr. Nelson, Mr. Tqrton waaalao, ; engaged in the dase.. Mr. Conolly said this was an interpleader summons to try whether the furniture was inade‘liable to the three seizures by Gorrie.; and the Bank. ' Mr. Sinclair was iormefly. ; the i owner of the Victoria H oteL . In 1.865, Gunn-becaihe the tenant, and tlje. Trnreibutol! < remained'ih; the house until a few days ago. j ■He peyer sold it to Gunn,'and now claimed - the |goodff’.named in the, inventory, which he . -. woidd^ibduifc.' 0 : Alltheother , c outside thatrtfae partids were entitled to then'called ' " rn James ; Sinclair,' who deposed that until about a year ago he was the oWner of the Victoria'Hotel. In June, IftfiA, ha Wif f/% 1 Guhnj who had previously mwaged it for witness,' but was a man entirely without means. The house Was furnished, which furniture belonged to me, and I let it with the house. The docuihent produced is the

inventory of the furniture in the house from May 29th, 1865, till the other day, when it was seized; such furniture belonged to me. I wished him to buy it, but never sold any portion of it. The whole had now been carried away. By Mr. Bitt: Gave Gunn a verbal agreement from year to year, with three months notice. Sold the hotel about 12 months ago; not to Gunn, but to A. B. Stuart. Had no interest in the house since about 12 months ago. Had not previously sold the furniture to Gunn, but conditionally; that when the bills were met, then I would give it over to him. I could produce the bills were time given. Mr. Conolly here said they had not received notice to produce anything. A notice was handed in about half past 11, since the Court began to sit. They produced nothing. Examination continued: Cannot speak from memory whether he gave me a bill failing due on July 15th, 1867, nor whether he paid them. He gave me bills, but on a general account; if he met them, he would get the furniture. They were in the usual form ; they were for value received. Some of these bills were paid, but not all; some by myself, but, without reference to documents, could not tell which. The inventory is correct. The bills given were not in accordance with the amount of it, £247. Do not know whether I have these bills present in Court or not. Mr. Conolly said a summons to produce all books and papers was served on witness at a quarter to 11, but was not signed; a second one was served at 11 ’2B since they came in Court.

Examination continued: I have the bills present in Court. I have some, but am not sure that I have any particular bill, and may have omitted some, as the things were put into the bag by my boys, Mr. Pitt called the constable to prove the service of the writ.

Mr. Conolly would admit the service of some pieces of paper, but not that they were a summons. Mr. Pitt shewed from Archibald’s Practice that a witness being subpoenaed, was bound to produce all books and papers. Mr. Conolly made other technical objections.

The Court ruled that the summons was informal.

Mr. Pitt would ask for au adjournment in that case, as the fault was not the act of his client, but the laches of the clerk of the Court.

Mr. Conolly wished to know what bills or documents were required. Mr. Nelson pointed out that they had no means of indicating what dates were required. Mr Conolly would advise his client not to notice an order to produce all bills and papers. Mr. Pitt wished for bills of date July 1867, for £BS 10s Id; August 9, £80; July 29, 1867, £47 ls7d; July 11, amount unknown ; and July 25, 1867, for £l2O. Witness said there was a little book which was sent up during his absence which he refused to look at, by Hamilton during the seizure. Had no objection to produce them.

The Court was then adjourned for an hour,

On re-assembling, Mr, Sinclair’s examination was continued. Mr. Conolly produced a bill for £BO, due July 11; and one of August 9, £BO, with a book, the property of Gunn. There is a bill of £l2O returned in December, which I now put in. The bill for £l2O, dated June sth, 1867, now produced, has Gunn’s signature, and was given on general account for rent, hay, &c., but not on furniture". The bill was for furniture. Gunn was sometimes under a wrong impression; there was so many bills given. Gunn bad the right of purchase, but I hold there is a difference between signing a bill and paying it. I gave him credit for it on the general account. The furniture never went into the general account. He gave me bills on account of the furniture, but until those bills were met the furniture would not be his. The bill for £BS was on general account, and not for furniture. A bill drawn on May 6, 1867, for £BO, was not, on account of the furniture ; a bill due November 6, for £ 120, was only on account of general account, both these last being retired by me. Am positive it was not on account of the furniture. I debit it against him. I gave him two years opportunity to pay for the furniture. The bills were given, except in one or two cases, on general account. 1 placed them against the general account, because-1 had retired them. The £64 bill was, I think, not given on account of furniture; it might have been. I have no recollection what the bill for £BO was for; it might be one of the unfortunate ones I bad to take up.'. Will not swear any way. The bill for £l2O was on account of furniture, as the Dank well knew ; it was conditional. Did not say it was on account of balance for

furniture. I wrote the letter produced to to the then Manager of the Bank of New Zealand. Did not take the bills for furniture into a separate account. There was no particular bills for the furniture besides £l2O. There was no account kept for the furniture. I urged him to buy it, but never got anything for it. The £l2O bill was due on November 6, and was paid on Dec. 13, with £124 12s 9d, being discounted at the Bank. The produce was held in a separate account, and credited to Gunn. Gunn never paid me 6d for the furniture ; if he had paid a sufficient number of bits of paper, he would have got the furniture. Never sold it absolutely ; asked him to buy it. The house and furniture was let together. He never paid me for breakages, or anything else, but wish he would. Jisaaed the house previously the one before Gunn, at £4 a week, but I let GuniTEave it for £IOO a year. Parted possession with the house 12 months ago, but not the furniture, which I retained. Have not charged Gunn for the use of the furniture. Have offered it to Mr. Stuart, and expect him to pay me. Have not applied to Gunn for payment for the furniture. Have no recollection of him telling me he considered he owed me nothing for the furniture.

Py Mr. Conolly : Nothing was ever actually paid for furniture. The £BS and £64 bills wore paid by Gunn, but these were not on account of furniture. Had he paid me anything, it would have appeared in my books. In July, 1866, knew he was not likely to pay for furniture. No acceptance of his on account of furniture was ever paid by Lim. Since I ceased to be the proprietor, have not charged Gunn anything. Mr. Conolly then put in au inventory of the goods seized.

Mr. Pitt shewed that the Bench had not jurisdiction to the extent of the value of the property. Mr. Conolly argued that the clause quoted did not apply, unless the claim had been one of damages sustained. The Court held the case should go on. Mr. Pitt argued that he was entitled to a nonsuit, as there was nothing to shew identity of ownership. The only evidence was that of Mr. Sinclair, who was absent at the time it was seized, and knew not where it was, or whether some portion might not yet bo in the house.

Mr. Conolly reminded the Bench that the witness had stated that the goods named; in the inventory were safe in the house just before he went away., The Court held that the identity of the goods was not disputed, and there was sufficient evidence to enable the case to go on. Mr. Pitt believed they would be in a position to prove that certain bills were given in part payment for the furniture. If he could prove that any of these sums had been paid, Mr. Sinclair would only be entitled to recover as an ordinary creditor. John Kissling, Manager of the Bank of New Zealand, Blenheim, knew Gunn, and had several dealings with him. Had been here a year ; had negociated a bill of Gunn’s for £45. Gunn has stated that the consideration was

Mr. Conolly urged that this would only be hearsay evidence, and was inadmissable.

Examination continued —Knew from Sinclair that the furniture was being sold to Gunn, who was meeting it by instalments. Have searched, but found no bill of sale registered against it. Knew that bills given was working out the furniture. Have told Sinclair that Gunn stated that his account was not so large as he made it. Have told Sinclair that Gunn stated that he had given accommodation bills to Sinclair. Have not heard from Sinclair himself how much he claimed from Gunn. My understanding was that the furniture was iu a state of transition—part paid for, and being paid for by instalments. Saw Sinclair with reference to discounting the bill for £45, but ho did hot tell me that Gunn had failed to meet several bills for the furniture. Was present at the meeting of Gunn’s creditors. Gunn produced two bills, and explained the consideration given for them.

By Mr. Conolly: The bill due bn April 30th was met by Gunn. I decline to say anything as to the state of Gunn’s account, as I am under an obligation not to reveal the state of a client’s account, unless ruled to do so by the Bench, [The Bench ruled that it was not necessary in a civil case.] The account for which the Bank have got judgment for £45 was on a dishonored acceptance. Gunn said he never could get a settlement of account with Sinclair. Have an impression that the bill for £45 was dishonored, and in a conversation about that he said he was paying Sinclair ..for. the furniture by instalments, and therefore Sinclair might have saved his name. , He, told me it was for the furniture. : ' *

Henry Dodson, examined by Mr. Turton : Know Gunu; have sold, several articles of furniture to him within the last 18 mouths,

including chairs, sofa, crockery, and glassware; saw them at the Victoria Hotel. Gunn consulted me about selling the furniture and horses of the Victoria ; he meant the whole ot the furniture of the Victoria Hotel. Went with him through several rooms; he referred me to Sinclair for a title ; did not see him. The chairs I sold him I saw in his possession a few weeks ago, and are now in Gome’s store; there is also a stove which he bought from Capt. Milo, which passed through my hands. James Sinclair, called for the defence, deposed: Am owner of the furniture, and bought it, but can’t tell you where, extending over 4 or 5 years; have paid for it; did not give bills for it; Lewis occupied the hotel, and the furniture then belonged to me; he rented it altogether at £4 per week; never bought any from him; the principal things were before his time; he had to pay for breakages; it was reduced from £2OO to £IOO, not on account of the furniture being sold; charged him for rent and furniture; don’t know what A. P. Stuart charged for the house alone without fui niture.

Lewis Lemauaoafib. proprietor and mail contractor, was landlord of the Victoria Hotel in 1864-85. Was in possession of a e, but I left over £IOO . worth of furniture, plate, and glass in the house when I left, including washstands, tables, chairs, crockery ware, post bedsteads, &c., hair matresses, carpet, linen, ornaments, and lamps, which goods I left in the house. I bought them from Beauchamp, in Picton. Have since paid him my rent, so I consider the furniture mine. I have not yet claimed these goods, but mean to do so as soon as my trustees have declared a dividend. I made an assignment in 1865, and afterwards bought back the estate again. Mr. Sinclair was; paid by the trustees, and consequently the goods are mine again. By Mr. Conolly: A distress was put in for rent; do not know that Sinclair took the furniture for the £IOO due; have not yet,..taken steps to recover any furniture, Sinclair was paid in the beginning of the present year. At the request of Mr. Nelson the Court then adjourned till next day.

On Wednesday morning the Court reassembled, when Mr. Nelson wished All'. Sinclair to be recalled, for the purpose of asking him whether there had ever been any’ .settlement of accounts between him and-Gunn? Mr. Sinclair said there never had been. Mr. Nelson then addressed the Court. He remarked that in the absence of Gunn, who had bolted, he laboured under considerable disadvantage, since he was precluded from giving evidence respecting the relative transactions between him and the claimant. Mr. Sinclair claimed all the goods seized as his property, yet he had not shewn that he had seen, nor even identified them. He tells us that he let the house with the goods, but there was no agreement in writing to show this, although with all former transactions the agreement was in writing. He says he was anxious to sell the goods, and the letter put in shows that the bill for £l2O named was for the furniture, although dishonoured at maturity. Two other bills were put in, which were honoured by Gunn, and Sinclair would not swear these were not given by Gunn for the furniture. All monies received by him from Gunn were kept in his mind’s eye, and credited to a general account j but these monies he contended might reasonably be assumed to have been for that purpose, and the witness said they might. He showed the Court that all these transactions were in a general way, and yet he said the furniture never was sold. The absence of a Bill of Sale had opened the way for a fraud, because he considered he had a lien on the goods until the bills were paid. Why did he allow Gunn to retain possession so long after the bills had come to maturity, and so suffered him to commit a fraud upon a large number of creditors, both here and in other provinces! Mr. Sinclair could only recover on his bills; he could not step in to interrupt an execution : at the instance of a judgment creditor. It had been shewn that the rent was reduced from £2OO to £IOO ; why was this, done, if not because of the furniture being sold ! Times v were not so altered as that. Stuart had continued the rental at the same rate, and Sinclair said Stuart was to pay Kim for the goods, but it remained to be shewn that Stuart had cognisance of this. Mr. Nelson proceeded to remark on the value of, and necessity for Bills of Sale to secure property. He said the question to decide was, had there been a sale of the goods, and had bills been given for them 1 The' claimant denied there was any sale, yet he admitted by the letter produced that a bill had been given for them ; and as regards the two other bills which had been

retained by Gunn, he said they might have been for the furniture. Such being the case, Mr. Nelson there was sufficient for the Court to say there was a sale. Instead of the claimant coming in to throw light on the transaction, Mr. Nelson contended his case was surrounded with mystery. Now, admitting there were bills which cannot be disputed, and that they were credited by claimant, not in the furniture account, but in a general one, thus embracing all accounts. It must be an undisputed point that if a man gives a bill for goods of which he obtains possession, and there be any condition attached, such as a lien or right of the vender retaking the the goods in case of the bill not being met, this is purely a transaction coming under the operation of that wise provision of the Legislature—the Bills of Sale Act—when all the conditions attached to the goods can be found duly registered. In the absence of any evidence as to the state of the account, he urged that it was just as possible that Gunn required more money from Sinclair than he (Mr, S.) claimed from him. Mr. Kissling showed that he understood the bill for £45 was in liquidation of the furniture. How could payments be made on account of the goods, if they were not sold 1 Mr. S, admits there was a sale, and yet denies there was a sale. There could not be a lien existing over goods for which bills had matured above a year ago. Mr, Sinclair had, however, his remedy against Gunn on account of them yet if he chose, like any other creditor, or he might have had a lien against Gunn for the furniture before the execution creditor seized.

Mr. Conolly wondered last evening why they were asked to adjourn. He now saw that the object was to divert the attention of the Bench from the simple point at issue—that was, were the goods ever sold. They had not noticed the extraordinary evidence of Lewis, and he did not see what they proposed by calling him ; but it was undisputed that the goods were at one time the property of Sinclair ; but we say they were not sold to Gunn, who might, were he present, prove exactly what Mr. Sinclair stated on oath. The general account was for rent, goods, <fcc., and all payments were credited to it; he had never put the furniture in it, because nothing had ever been paid towards it. Nothing had been shewn to shake Mr. S’s evidence, who swore, distinctly that no money whatever had been paid on the furniture, although he was under examination about three hours. True, towards the close he got somewhat confused, and said something might, or might not have been. Unless the Court disbelieved him, the decision must be in his favour. They were asked to assume that if Gunn were here, he might contradict Mr. S.—a course which was obviously very unfair. Notwithstanding his opposition, some portions of evidence which were only hearsay had crept in, especially as regards a proposed sale of the furniture by Dodson, but then Gunn could not sell what was not his own. He did not press Mr. Kissling to disclose the state of Gunn’s account, but he could discover enough without that, for the bill for £is was dishonoured, and then there was the judgment in respect of which this seizure had been made; these show that Gunn’s account had been overdrawn. Gunn might have asserted that the furniture was his, but in the face of Mr. Sinclair’s statement to the contrary on oath, that evidence was surely not reliable. The letter referred to bills given for furniture, but it also stated that ; he retained control over it. The opposite side did not closely examine the witness as to Stuart paying for the furniture, as they might have done ; but the most extraordinary argument was that his client ought to have further protected himself by a Bill of Sale. The house had always been let as a furnished house, and business in the Supreme Court would be largely increased indeed, if in all such cases they had to protect themselves in that manner. A man could not sell, even on an agreement for a sale. Sinclair had sworn that if the bill for £l2O had been met that it would have been on account of furniture, but it was not met. He again urged the Court to believe the evidence of Mr. Sinclair. .

The Bench retired, and in a short period returned, when the Chairman said the Bench had bestowed every consideration on the evidence and arguments brought before it, and found that Mr. Sinclair had failed to prove his claim. Mr, Pitt asked for costs. Ultimately Mr. Conolly consented that in Dodson’s case a verdict should be entered in his favor, with costs ; but, in Gorrie’s case, he did not think the other side should claim them, as Mr. Sinclair had withdrawn from the case. . •

Mr. Nelson remin’ded him that it was yesterday only! The judgments were entered thus : For Tank of New Zealand, with £3 4s, costs ; Dodson and Ball, judgment by consent, ■with £2 3s. costs ; and Gorrie, judgment by consent, with £1 12s. costs. T. A. GUBB V. T. W. MILLINGTON. Mr. Nelson appeared for plaintiff, and said this was a claim of £5, balance on an ,1.0.17. He called John Kennedy, bailiff's assistant, who deposed that he knew Gubb, who left with him an 1.0. U. of Millington’s given for work done by plaintiff for him. Had collected a portion, and a balance of £5 remained on the original document, which was for £9 odd, a part of which went for plaintiff’s passage money. Defendant did not appear. Judgment for plaintiff, with £1 13s. costs. M‘ARTNEY V. DEMPSEY. Judgment confessed. Plaintiff applied for immediate execution on the grounds that part of the goods, including stock, had been removed. V. The Bench said that if it could be proved at any time that/the debtor was seeking to make away with his goods, a warrant would be granted. y Mr. Nelson asked that it should be granted now, but.hot put into foi'ce until the usual time unless theie was an attempt to act unfairly , by removing his goods. M‘ARTNEY V. HOLLISTER. Defendant did not appear. An action to recover on an acceptance for 3 months, endorsed over to plaintiff, drawn by Joseph Mitchell, and endorsed by defendant. Judgment for plaintiff for £lO 15s. 6d., with 225. costs. DALTON V. DEMPSEY, Judgment confessed for £2B 10s. sd. Mr. Nelson applied that the execution should be issued at once, and follow MArtney’s, and on the same conditions.