RESIDENT MAGISTRATE'S COURT.

Nelson Evening Mail, Volume XI, Issue 253, 16 October 1876, Page 2

RESIDENT MAGISTRATE'S COURT.

THIS DAY.

[Before L. Broad, Esq., R.M.] •'"•• STEALING EGGS. '.-■ The two lads who were mentioned on Saturday as having been given in charge for stealing eggs were allowed to go at liberty on that day on their parents agreeing that they should appear in Court this morning, which they did, and were discharged on theirparents undertaking to give them a whipping. \ 1 ASSAULT. ' , >\ Arthur Sheppard was charged by S. Baigent with assaulting him. Mr Fell appeared for tee complainant, who, together with Messrs Chattock and Hunt, gave evidence ;that he was knocked down by defendant. The latter on being called upon for, his defence stated tih»t he was, at the .Forest Inn making arrangements for- an entertainment in aid of the Normanby, Hussars. ; Complainant was there, and like, all the Baigenfc. family poohpoohed everything that w«*s suggested by anyone else. He (defendant) could not listen quietly to some of the remarks he made and said that if he repeated them he should call him a liar. Whereupon Baigent took the initiative and called him (Sheppard) an adjective liar, when defendant struck him. Baigent tried" to retaliate, but only succeeded in striking his opponent once. Baigent then took up a brass candlestick, and Sheppard, not to be outdone, armed himself with a tumbler. Neither of these weapons, however, were used, and Sheppard, after a time, left the house, when Baigent followed and struck at him, this time with a leg of mutton. Sheppard disarmed him of the leg and knocked him down. Some mutual friends afterwards interfered, and tried to make the matter up. He (the. defendant) was perfectly willing to do so, and offered to apologise if necessary, but j Baigent insisted upon the apology being pub- ! lished in the newspapers. To this he objected, as if the affair was to gain publicity it might just as well do so through the reporting as through the advertising columns of the papers. His Worship said the assault appeared to be of a very trifling nature, and he should dismiss the case, each party to pay his own costs. SURETIES OF TIIE I'EACB.J Mrs Mary Tucker, of Beachville] was accused of using threatening language to Mrs Mary Robertson on Saturday, the 7th inst. Mr H. Adams appeared for the defendant. Mrs Robertson in a very excited manner graphically described the whole scene, and related the language used, which is not altogether fit for publication. In support of her statement she called several witnesses, one of Tvhom was Mr Frederick Atkinson, who stated what he Haw, and minutely described, the whole panorama." Eventually Mrs Tucker was bound over to keep the peace for six months in her own security of £10. Wadmtttt, execution creditor, v. Fletcher and Mabin, Trustees of the assigned estate of George M'Donald, This action is brought to try the validity of a deed of assignment. The facts are as follows:— George M'Donald being unable to pay his debts in full executed a deed of assignment of all his estate to Fletcher and Mabin as trustees. The deed recites that it is executed "in order to insnre an equal distribution of his assets among all his creditors," and the trustees are, after realising the estate, "to pay the debts owing by the said George M'Donald to the parties who have executed the deed rateably in proportion to their' respective amounts." And there is the usual form of release by the creditors signing the deed. It is in short the old form of assignment by a debtor, not subject to the bankruptcy laws, in trust for his creditors. Wadman has not signed, but being a judgment creditor of M'Donald he took out execution, and the bailiff seized. The trustees who were in possession claimed the goods, and it was agreed that they should be permitted to realise the estate and hold the proceeds until the result of this action was known. If the decision of the Court is that the deed is invalid, Wadman is to lie paid in full. It is contended that the deed is really only between M'Donald, the trustees, and those creditors who actually sign, it; that it is a voluntary deed without consideration; that its effect is to delay aa execution creditor, arid therefore it is fradulent and void under 13 Eliz. c. 5. s. 2; that it is evidently made for the benefit only of such creditors as actually iign it, and that it is unreasonable because the creditors must release the debt, and it is unequal because it provides only for those who do sign; and further that it is not an assignment of all the property, inasmuch as the wearing apparel of the assignor and his family is excepted. The learned counsel for the execution creditor urged very strongly the judgment of the Judges as delivered by Parke B. in Larpent v. Bibby, 5 H.L., Cas. 497, as being directly in his favor. But that judgment referred unmistakeably to a deed executed under the bankruptcy statute and not to a common law deed like that under l consideration. Admitting that the effect of ( this deed is to delay and hinder an execution creditor, that does not in itself constitute fraud; and being as it evidently is for the benefit of all the creditors, to procure an equal distribution amongst all of the fund to which all have an equal right, and being made in good faith and simply to achieve that object, I am of opinion that it is not fraudulent and void and does not come within the Statute of Elizabeth. There can be no fraud where the deed is bona fide for the purpose of equal distribution. The debtor has discharged a moral duty by making the fund available for the whole body of creditors. This execution creditor is not excluded, but can come in under the • deed if he pleases, and share with the rest of the creditors. The case of Pickstock v. Lyster, 3, M. and S., 375, seems exactly in point, and that case was governed by Holbird v. Anderson, 5, T. R., 235. In the former case Bayley J. said "It seems to me this conveyance, so far from being fraudulent, was the mos,t honest act the party could do. He felt that he had not sufficient to satisfy all his debts, and he proposed to distribute his property in liquidation of them; this was not acceded to, for the plaintiff endeavored by legal process to obtain his whole debt, the obtaining of which would have swept away the property from the rest of the creditors, And this creditor is not excluded by the deed, but will stand to all intents and purposes in tho same position as all the rest of the creditors." That seems to me fo, be the position here. The deed is honestly made to achieve a very proper purpose, and. the fact

; of ita hindering or delaying a particular execution creditor .dqes not make it fraudulent. :It .is* a provision; voluntarily 1 made for the benefit of all the creditors, none are excluded, but jail can share alike m. its advantages. In addition to the cases already cited T may mention Meux v. Howell 4 East 1; Wood v. Dixie, 7 QB. 892; and Ingles v. Grant 5 D.E. 530. The wearing apparel has been excepted with the consent of the trustees, and that does not in my opinion vitiate the assignment..