DISTRICT COURT.

Nelson Evening Mail, Volume XVI, Issue 20, 24 January 1881, Page 2

DISTRICT COURT.

[Before His Honor Judge Broad.] Scaife (creditors' trustee in the bankruptcy of James Sutlon) v. Webby. The following jury were Bwo m i-^W,

Akersten (foreman), G. Adams, J. Aldridge, and B.Alfred, In this action the plaintiff sued fof the sum bf £62^ money payable by the defendant to the plaintiff ; and further, for the sum of £91, the value of certain stock. Total, £151 Mr Bunny appeared for the plaintiff and Mr Percy Adaniß for the defendant. Tbe defence was that the £62 had been received by Mr Webby, but in his capacity as agent, and that he held the stock claimed under a bill of sale $ Mr Bunny said that Oii the fith April, 1880, J. Sutton filed his schedule, having oh the previous day handed over to Webby, his father-in-law, the sum of £62 received from Sharp and dickering ioi barley. The other goods had been covered by a bill of sale to Webby, thereby defrauding his creditors. From tho fact of the receipt of the money by the defendant being admitted, His Honor ruled that it was for the defence to open the case instead of the plaintiff. Mr P. Adamd said that the 6ase lay in a nutshell, and consisted merely of two facts. The plaintiff claimed £62, which Webby alleged had been paid td him as agent for Sutton, who, for two years, had been in difficulties, and Webby, bis father-in-law, had to pay all harvesting expenses. With regard to the Btock claimed, Sutton, who failed in April, 18S0j had a year previously secured them to Webby under a bill of sale. Webby could neither read nor write, and was therefore unable to keep any accounts, so that in giving his evidence he might be a little at sea with regard to dates. Edward Webby : I am the' defendant. Sutton is my son-in-law. In January, 1880, I was employing and had to pay all the labor for cutting and threshing: his crops. [ had to do tins because he had no money. 1 superintended the harvest, and took the barley to Sharp and Pickering, from whom Sutton received £62, which be gave to me and out of which 1 paid Adams fend Kjngdon £20 to put Sutton through the Court j Harper £5 for making out a bill of sale. His Honor : Mr Harper cannot charge for making out a bill of sale. If he does I should think the profession would look after him. Mr Adams : The bill of sale is endorsed by Mr Pitt. Witness : The next payment was £8 15s to Mrs Higgs, as she was going to distress Sutton for a stack of hay ; I gave Mrs Sutton £lb for household purposes , I paid Holdoway £13 17s for cutting and threshing, and about £8 for labor. I actually paid a pound or two more on Sutton's account than I received from Sharp and Co. I am the holder of a bill of sale from Sutton securing me for £160. He owed me the amount when he Bigned the deed. I lent him £17 a few days before on condition that he gave me the bill of sale, the aggregate of which I had lent him in different sums. There is £150 still owing to me on that bill of sale. It covers two horses, four cows, and two pigs, Which tbe plaintiff claims. 1 seized these under the bill of sale. They also sue me for 40 fowls, but I don't know anything about these. The year before Button was not in a position to harvest his crops. Cross examined by Mr Bunny : 1 was present at Sutton's mating of creditors, and heard the evidence given; t paid a little over £SJO altogether for harvesting. I don't know with, whom the idea of Sutton's filing originated. I had no authority from Sutton to pay Adams and Kingdon the £20. I paid that money within a day or two after getting the rhoney from Mr Sharp. Sutton drew the money from Mr Sharp and signed the receinf. apd, banded the money to roe. The bargain for the harvesting waa made by me. I have not bad the plough or harness or furniture mentioned in the bill of sale. I have no writing to show that 1 lent money to Sutton previous to the £17 I mentioned in my examination in chief. I never keep any books. The way In which t arrived at the £150 covered by the bill of sale was by considering over in my mind how much I ha^ lent him at different times. I don't think the things mentioned in the bill of sale are worth £150. I lent Sutton £25 when tbe Wangapeka diggings broke out. We reckoned when I lent him the last £17 that that would make up a total of about £150 owing by him to me. I gave Mr Adams a list of the amounts I had lent to SuttoD, which I made up at the time out of my own head, but I can't remember them now. I paid Mrs Higgs after Sutton had decided to file. I might have paid her before I got tbe ! money from Sharp & Co. If, five months after signing the bill of sale, Sutton said that he did not owe me any money he stated what was false. Re-examined: There wss £150 owing to me at tbe time of the bill of sale beinp signed, and it is still owing to me. The amounts due to me by Sutton were, £17 lent a few days before the bill of tale was signed; £25 at the time of the Wangapeka diggings, which he has never repaid; in 1878, two separate sums of £25 each; in 1879, £10 to p»y Mr Kelling for a horse, for payment for which he was pressing; in 1878, two horses and a man for six weeks, £18; a pair of bullocks, £38. For these he promised to pay in three months, but he never paid me anything. AH those amounts were owing at the time he gave tbe bill of sale, and they are owing now. When Sutton asked me to get bis crops in he asked me to pay any pressing demand* besides labor. Andrew Turnbull, Registrar, proved the registration of tbe bill of pale in May, 1879. James Sutton : About last harvest no one could give me credit, and I could not get the crops in and so I employed Webby as my agent. He was to harvest the crops and receive the money and pay it away. The aiLOunts be has mentioned as having been paid out of the £62 received from Sharp and Co., were paid by my authority. I remember giving a bill of sale to Webby, to whom 1 then owed over £150. Cross-examined : I had a conversation with Webby about his acting as my agent at harvest time. Nothing was said about his receiving any commission. I did not say anything about Webby's agency at the meeting of creditors. I was never asked about it. I know what an agent is. It is a man who gets your work done when yon can't get it done yourself. I had no credit ! at all, and Webby could only get other people to work for me by guaranteeing the payment himself. I never kept any account? in my life. I wish I bad. Webby and I together made up the list of what I owed him just before I signed the bill of sale. I never gave any acknowledgment of moneys I got from him. Webby and I together made the bargain with Sharp and Co. for the barley. Re-examined : Mr Sharp knew Webby was to receive the money. All the harvest people knew Webby waa acting as my agent. Mr Bunny then addressed the jury, argu ing that a large proportion of the £62 received from Sharp and Co. had found its way into Webby's own pockeft, and that the bill of sale was a mere family arrangement drawn up at a time when Sutton was known to be in difficulties, and executed for the purpose of allowing Webby to step in and take possession of his son-in-law's property to the detriment of the rest of the creditors. Mr Percy Adams, in reply, urged that the whole of the £62 bad been paid by Webby in accordance with Sutton's imtractions, in whose name the account sales were rendered by Sharp and Co., and further that the bill of sale was perfectly good, having been made in gcod faith and for valuable consideration. His Honor, in summing up, said tbat it appeared that Sutton was a person whom no one would trust, and that in order (0 get in his crops he bad to make an arrangement with Webby. This arrangement did not show, that Webby was acting as agent, but rather the other way, he beiDg the man who was held responsible. The crops in, the barley was sold to Sharp and Co., both Sutton and Webby being present, and the money with Sutton'a approval was handed to Webby. For what purpose? Clearly Webby became Sutton's agent, and had to apply the money as directed by his principal. Then did he do so? There was a strong discrepancy in the evidence on this point. Webby said he had no authority to pay any money except for harvesting, and that he made the arrangement with Adams and Kingdon on his own account. Sutton, on the other hand, stated that he authorised Webby to pay all that he did pay. Possibly it was owing to the cloudiness of their intellects, but there were two witnesses on the same side giving different versions of the story. Tbe money to Mra Higgs, it appealed, bad been paid before (be

receipt of the £62, and" the question' Was whether Webby was justified in recouping himself for disbursements previously made. The general question for the jury to decide was whether Webby honestly paid away the tiloney as bis principal directed. If so, he was merely the conduit pipe through which the money passed, and was in no way responsible or liable for the manner in which it was ex pended. It was evident that a large portion of the mouey was so spent and for that he certainly was not liable. There was the £10 to Mrs Sutton. If he gfive her that as a preoent out of his own pocket, he clearly had £10 to account for lo the trustee ; if on account of the husband (hen the money had been returned to his principal and he himself ceased to be liable. With regnrd to the second claim, Webby staled that he held the stock under a bill of sale signed a year before the bankruptcy. It was for the jury to say whether that document was executed in good faith aod for valuable consideration. If so Webby had a perfect right to the articles it secured. After a short retirement the jury found a verdict for the defendant. Edmund Walter Thomas applied in person for His Honor to name a day on which he might make application for bis discharge, be haviDg heard that the Judge wa3 about to be absent for some time on the West Coast. His Honor said this was in effect an appeal from the decision of the creditors, and the usual ten days' notice of intention to apply must be given. . The Court then adjourned.