RESIDENT MAGISTRATE'S COURT.—GISBORNE.

Poverty Bay Standard, Volume XI, Issue 1355, 13 September 1883, Page 2

RESIDENT MAGISTRATE'S COURT.—GISBORNE.

(Before J. Booth Esq,, T. C.) Tussday. Police v. R. Johnstone.— Charged with stealing about 6lbs of bacon. The prisoner pleaded “ Guilty," and on the application of the police was remanded till Wednesday. Bolton v. Bolton. — Adjourned for a Smith v. Smith.— Adjourned for a week for evidence to be taken.

Dcyaub & Co. V. C Pownall. — Claim £8 19s for advertising, £6 9s of which had been paid. No appearance of defendant. Judgment for £2 10s and costs. W. Searle v. Edward O’Meara.—This was a judgment summons for £ll 18s 6d.~ No appearance of defendant. Mr Brassey for plaintiff, asked the Court to make an order for the payment of the amount. An order was accordingly made for the amount to be paid in a fortnight, in default 10 days' imprisonment. Chas Lucas v. Same.—Judgment summons for £25 13s. No appearance of defendant. Ordered to be paid on or before this day month, with costs, in default, 28 days’ imprisonment. G Houghton v. W Fellows. — Claim £6 2s on a judgment summons Defendant pleaded that he was not in a position to pay.T He bad agreed to pay one-half the amount in a fortnight, and the balance about Christmas Plaintiff agreed to this, and an order was made to that effect, in default 7 days’ A imprisonment. Nicholas A Co., v. A. Gillies.— £4 8s 6d on a judgment summons. appearance of defendant. Mr Kenny on behalf of plaintiff that an order might made for payment of the claim. An was made that it be paid on or before this day week, in default, 6 days’ imprisonment. P. Barrie v. W. Hames. — This was a claim on a judgment summons given on the 17th August last. His Woiship ordered that the amount he paid within two months, in default, 14 days’ imprisonment. E. Wilmore v. Alfred Cooper. Mr Brassey, on behalf of the plaintiff, said this was an action for conversion, in which the plaintiff seeks to claim certain good* which she alleges the defendant has con-) verted to his own use. The bill of sale from J S. J. Bromley to plaintiff Mr Greenwood had, the filing of which he thought they would admit, and also that a demand had been made. Mr Kenny, for the defendant, said that they would admit the filing, but would not do so as to a demand having been made. Mr Brassey said the amount sued for was £lOO. He knew his learned friend would set up a defence on certain legal pointe. Mr Kenny : The bill of sale on which his learned friend relied did not affect the defendant, as by its own wording it only covered the property that was in the shop at the time it was drawn up, and he woula be able to prove that the present stock had been put in since that time. Ihe bankrupt’s own books would show this clearly. Mr Brassey There were very few facts he would have to prove. The whole of this ' matter was very hard for the plaintiff, and i he hoped his friend would not call her. ' Mr Kenny : If his friend admitted that the plaintiff passed as Mrs Bromley’ some time before, he would not do so. Mr Brassey : He did admit it. Eliza Wilmore deposed : I am the plaintiff in this action. I know the defendant. have advanced certain monies to Mr Bromley in the boot and shoe trade, and secured the same by the bill of sale produced. This is Mr Bromley’s signature to it, The bill of sale was from Bromley to Cooper, and was i transferred by Cooper to me. The money j was advanced by me. Mr Bromley had I I nothing to do with it. I know nothing 1 I about the actual goods themselves. 1 To Mr Kenny : I produce the bill of sals, I which I got from Mr Brassey to-day. I ■ don’t think I got the bill of sale until after fl the assignment was put upon it. About week after the 18th July i got the bill oM sale with the assignment. Mr Bromley gardH it to me, I think. Mr Cooper did not givsitW to me. After I had it for some time I gave J it to Mr Brassey. I advanced the £l3B of A the bill of sale out of my own money. It was advanced in different sums. On the 3rd of April, 1882 (£10) was the first item. The next amount was £o7, April 27th, 1882, and so on until the £l3B was reached. I gave Mr Bromley the money in cash. I got the cash by means of cheques on my account in the Bank of New Zealand. I also had an account in the Government Savings Bank, in the name of Eliza Bromley. I signed the cheques “ E. Bromley.” The bill of sale was given by Cooper to protect my money. Cooper’s name merely appeared in it as a trustee for me. I suggested the bill of sale myself. I thought it was better to have a bill of sale in case of accident. I asked for the bill of sale, and insisted on having it. I cannot repeat the conversation I had with him about it. It wav not because I knew Mr Bromley owed m ney that I had the bill of sale drawn out, 1 had no idea what Mr Bromley owed. I dare say it might have been inconvenient for him to pay them. My knowledge of his owing so much money might have led me to get the bill of sale. I was anxious to get this security for my own safety, as he owed so much money. When, the bill of sale to Cooper was signed I was- , not present. I believe Mr Cooper had the , bill of sale to keep. I have been living in this town about five years. All that time I signed cheques as “ Eliza Bromley.” To Mr Brassey : It is a fact I wanted security for my money. At the time I advanced the money 1 took no acknowledgment, merely making an entry in my diary. I have never received any cash from Mr Bromley, who had some £5OO from me at different times. I have had money sent me once under the name of Eliza Wilmore.

J. S. Bromley—l borrowed money from Eliza Wilmore, and gave a bill of sale for £l3B. It was not known that she was Eliza Wilmore at that time. I filed the bill of sale myself at her request I wrote the bill of sale myself. I did not hold the bill of sale, it was handed to Cooper. I could not tell whether I could get access to it. I do not remember. It was filed the same day it was signed- I fancy that some of my other creditors knew of the bill. It was no secret at all. On the 12th of March I knew what was in the shop and in stock. < There were goods valued at about £250 in the shop. I can say positively that there * was £l5O worth of stock in the shop when ’ I filed. Mr Greenwood took possession of that stock. The notice in the “ Gazette," refers to this bill of sale. I gave Eliza Wilmore the bill of sale to secure her as she wished it. After filing this bill of sa'e I still got credit; it only affected me with one firm.

Cross-examined by Mr Kenny—l did not hold the bill of sale. I do not remember whether I kept the bill, or Cooper. I really cannot remember whether I kept it or not. I gave another bill on the same date to Mr Townley for £lBO I only had book debts in several book debts which I had bought. On the 12th of March I owed about £l,OOO to different creditors. Eliza Wilmore asked me to give her the bill of sale. Cooper was not present when I signed the bill. lam not certain about it. Ido not know whether I read the bill to him. To the best of my belief ho had it on the day it was made. He could have read it if he liked. He

could have seen it by asking for it. To the best of my belief he did. I do not exactly know. lam not sure whether there were eight saddles in the shop on the day of bankruptcy, I can swear there were seven, worth £2l. I swear there was £l5O worth of stock when I gave the bill of sale. 1 told Eliza Wilmore that I was pressed for money at the time I gave over the bill of sale. Had in stock at that time £350 worth. I cannot tell’how much exactly. I had new stock in afterwards, I think the amount between the 12th of March and the date of filing was £167 9s 3d. To Mr Brassey—The amount of goods in the store at the date of filing was £3OO. I got the bill of sale from Mr Cooper about the 16th March for the purpose of having it transferred to her. I was present when the transfer was made. He did not say he did not understand the matter. Alfred Cooper: I am the defendant. I believe lam protected by the trustee. At one time I was manager for Mr Bromley. I recollect a Bill of sale given to me. I understood the bill of sale had been filed. I believe I did not see the bill of sale until the assignment. I did not know the amount till about the end of April. I did not think there was anything wrong in the bill of sale. I was satisfied that Mr Bromley advanced the money. I signed the transfer to Mrs Bromley for whom I acted as trustee. I have some knowledge of what was in the ohop. There were £220 worth of goods in the shop at the end of July when Mr Bromley filed. To Mr Kenny : I was asked to act as trustee for Mrs Bromley. At that time I knew Mr Bromley was in difficulties. I knew he was being pressed by Toomer & Co. After the bill of sale was signed I did not get it to keep. I did not see it until Mr Bromley asked me to assign it. When I did see the deed Mr Bromley brought it to me. Up to a fortnight before the date of the assignment I am quite sure I had not seen it, nor read it. I did not make any demand as trustee on Mr Bromley for the goods. I agreed to pay £B7 for everything in the shop, with fixtures and furniture. I reckon the latter worth about £l3. I can produce the receipt for the same. On the 29th of August there was about half of the stock left. Mr Brassey said he would put the document in as evidence, it was a demand for the money Miss Wilmore had lent Mr Bromley. S. J. Bromley recalled : The document produced was given to me by Miss Wilmore. To Mr Kenny : The date on the document is the 25th. I cannot say the date on which I got it. It was either the 23rd or 25th. Mr Kenny said he would insist, and must know, when he got this document as there was a great amount of suspicion about it. as it had been brought here at the last moment as if to save them. It had every appearance of fraud. Mr Brassey objected to these harsh words. Examination continued : I swear that I received the document on the day which it is dated. Mr Kenny said he would require to examine Miss Wilmore once more to corroborate this statement. She was accordingly sent for by the police. Examination continued: When Miss Wilmore handed the document to me she said she had just written it. I swear I did not receive it after I filed. I received it before.

This was the case for the plaintiff. Mr Kenny said there were five different objections which he would take as to the validity of the bill of sale : —lst, bad under section 52, Chattel Securities Act, 1880 ; 2nd, bad, because the post nuptial settlement was within five years of bankruptcy ; 3rd, illegal, because void as against policy of statute; 4th, the property belongs to the trustee, because an order and disposition of the bankrupt with the consent of the true owner ; Sth, a fraudulent conveyance under the 13th Elizabeth. There was another objection which did not concern the validity of the bill of sale, viz., that they had not proved that the property for which they were now suing was really covered by the bill of sale. This case was one of vast importance to the community. The creditors of this estate had authorised the trustee to support the defendant in this action. He would point out the question of law and fact. His Worship would have to keep his mind free of past cases with the parties concerned. He submitted that the bill of sale was bad. on the ground that it was given as a trust for Mrs Bromley, but that it was nothing less than a trust for the grantor, Mr Bromley, and for this reason, when a woman marries, all her property, at the time of marriage, becomes the property of the husband. Now, the plaintiff was his wife, therefore the money she had belonged to him, and when he made the defendant trustee for the plaintiff, he was making him trustee for himself. He submitted that all post nuptual settlements were bad as against creditors, and a fraud had been committed against them. They had it at the time of his (Bromley’s) filing, his liabilities were £lOOO, he assigned all bis property, &c., to his wife, except the book debts, which he left for his creditors, and which were not worth anything. E. Wilmore recalled : I handed the document (produced) on the day of which I wrote it, namely, the 25th July to Bromley. It is in my own hand writing. I did it to secure myself. I may have asked advice before I did it. Mr Kenny continued his address—A document had now been produced by the plaintiff, in which she makes a demand for the amount in the bill of sale, on the 25th July, and that if not paid by the 26th she would sell him up Now he would ask if that did not bear every sign of suspicion and fraud. Why was it not produced before, and again why did she not carry out her intention and sell him up when the money was not paid. He would also draw the Court’s attention to the fact that the ink on the document when first produced in court was a very pale blue, but now it was quite black. This almost proved that it had just been written, After addressing the Court at great length, and quoting innumerable authorities to support his arguments, the Court adjourned till 10.40 next day.

Wednesday. On resuming at 10.30, Mr Kenny rose and said that he hid two more observations to add, viz., that the five objections raised by him the day before, if any one of them were proved, that then would make the bill of sale bad. It did not matter if the whole lot were proved, if one was proved that was sufficient. That the plaintiff has to prove that the goods are hers, and that the defend ant took them. Mr Lras-ey then addressed the Court. He wou.d first reply to Mr Kenny’s objections, which he did, arguing that they were no good, and quoted from many authorities to back up his assertions. He asked His Worship to remember that he was not now sitting as a Court of Law, but as a Court of Equity, and as judge and jury, and he would have to see as to the facts of the case, and see if there had been a fraud on the creditors. He submi’ted there was no fraud, that the bill of sale was drawn up to- protect the plaintiff, and also that a married woman may have property of her own after her marriage. Mr Brassey continued his address, after which His Worship said he would reserve his decision until Friday morning next.

ttll MJaiaUbMlli W iseladtd laUsmsU! eutewt); 8. Delereaa, 47 12» &1 p. Reedy, « 111 104 d | P. Maher. 82 8* lid I C. Stoney. 81 14s lOd; Bill ey, 83 3a | Clayton, £3 8a 6d. (A diieunia a her* arose u to th* hat account being for Ist, or 2nd. class timber, but it was eventual ly ; J. King, <1 17s IO; J. W. Wa< la, £7 J Dolman, £1 10«; Crawford, £6 ss. (Thia was * d.mind for 100 feet of ho se »* !• 3d per foot, which had been lent to J fr Stuehey for the engine, The matter was referred to the Engineer for enquiry); ”“y’ nl i* D ! £8 lOe; Graham 4 Co., £ll 1«. The last account was kept over until after the interview of the County Connoil to be d salt with at a ipecial meeting next Tueiday, Tinders. The following tender! were then evened for the formation of Disraeli street, 8. Doleman, (sureties, Dufaur and StevenK>") £54 7s 6d, shingling, £l2B 5s | total, £l\B 12s fid. M'Devjtt, (sureties Dickson ash Humphries), £259 10s 6d) J. Sandlant, (sureties Robb and File). £295 14s; (informal). , , Cr Tucker moved, and Cr Lewis seconded, that Mr Doleman’s tender be accepted. Carried. Cr Smith said before the tenders for Borough Engineer were opened he must say that he objected to the method which had been adopted. He wished that another fortnight be given for outside application. He thought the Council had been very illadvised in harrying this matter. It appeared that they had made up their minds to have none but local men, he must say a local man. He certainly must strongly object to the coursepursued. Cr Tutchen moved that the tenders bo opened. Cr Tucker said he did not see the force of Cr Smith's argument. Cr Smith said the policy adopted was very short-sighted in this matter. He made a formal motion that the tenders bo not opened. Cr Townley said that the most that could bo done would be to delay the matter for a fortnight. The immediate necessity for hurry had passed on by the Engineer having been temporarily re-engaged He thought His Worship should have consulted the Councillors before re-engaging the Engineer. The only thing that could be done would be to extend the time, Cr Smith said that his object wae to give outside men a chance of applying. The Council wanted a surveyor and engineer combined the same as Mr Drummond was, and that class of men were limited here. Cr Whinray said he wished to know whether they really wanted a surveyor and engineer. He did not see the necessity for that. Cr Smith said that in the event of a water scheme being carried out they would want a competent surveyor. He thought surveying was a most necessary accomplishment for their Engineer to possese. He moved that the time be extended to one month, and that advertisements be put in the Auckland, Dunedin, and Napier papers. Cr Brown thought this all a waste of time. Cr Townley seconded Cr Smith’s motion, proforma. Cr Lewis seconded Cr Tutchen’s motion.— Carried. Cr Whinray moved as anotheramendment, that he thought the engineer should give the whole of hie time. He moved thataforman of works be appointed in lieu of an engineer. Cr Lewis rose to a point of order. Could an amendment be made after the motion had been carried. The Chairman reded against Mr Whinray, and proceeded to open the tenders as follows Mr Ballantyne, £2OO per annum, to Sire all hie time to the Council, (this one was ecided io be informal on account of being only addressed to the Borough Council); D. G. Ward, full time, £3OO, and part time £250 ]W. O’Ryan, £250 par annum | W. Tetley, £3O01 J. Drummond, £250 ; A. Y. Rom, £l5O ;3. A. Henderson, £2O01 R. M. Skeet, £2OO ; R. J. Reynolds, £260. Cr Tucker moved, and Cr Whinny seconded, that Messrs Ballantyne's, Ward's and Tetley's tenders be passed over.—Carried, Cr Whinny proposed, and Cr Hepburn seconded, that Mr A. Y. Rose's tender be accepted. . Cr Tutchen proposed, and Or Smith seconded, that Mr O'Ryan's tender bs accepted. Cr Tucker proposed, and Cr Brown seconded, that Mr Reynold's tender be accepted. The motions were then put in thr above order by the Chairman—when, for Mr Bose, at a salary of £l5O, the proposer and seconder alone voted. For Mr O'Ryan, at a ealary of £250, and who is a certificated surveyor and engineer, four voted, vis., Crs Tutchen, Smith, Hepburn, and Townley. For Mr Reynolds, at a salary of £250 per annum, Crs Tucker, Chrisp, Lewis, Brown, and Hepburn. Mr Reynolds was accordingly declared appointed.

Extbiobdinart Business. Cr Townley called attention to the state of the drain in the Roebuck Road. He also called attention to the fact that they had been called trespassers when they wont to inspect the erection of the strong room, and be wished to know whether they really were trespaaeers, as stated by the counsel for the defence. The Chairman read a letter from the engineer, asking for a board of inquiry into the allegations made against him. Cr Townley said he should like io hear what the engineer had to say. The engineer said he would enter into the matter at a board of enquiry, and if the Council refused one he would take other steps to vindicate himself. Cr Lewie thought Mr Drummond’s request was reasonable, and he wished him to name the members to form the board. Mr Drummond said those gentlemen who had condemned him. Cr Whinray said he did not think that anything had been said against Mr Drummond's professional ability, it was only against hie negligence. Ho felt great regret at losing him. Cr Tutchen wished to do all justice to Mr Drummond, and he must say his only fault was negligence. His ability could not be doubted. Or Townley moved that the application be entertained, and that a board of enquiry be granted. The only complaint against him was negligence. His ability was undoubted. He moved that the board of enquiry consist of the whole Council, and that Mr Drummond appoint his own time. It was decided that Mr Reynolds's duties commence on Sept. 21, and that Mr Drummond be continued on to instruct him in his duties. Cr Tutchen again brought on his motion re the advertisements in the Standard, and moved that the Town Clerk be empowered to state what space each advertisement should occupy, and that the Council pay for the specified space only. He wanted the advertisements set the same as they were'in Auckland. Cr Tucker seconded the motion, saying that “ what was sauce for the goose was sauce for the gander."—Carried. The Town Clerk was then instructed to proceed by process of summons to recover for all rates due. The summonses to be issued in alphabetical order, commencing on October Ist.