RESIDENT MAGISTRATE'S COURT.

Southland Times, Volume I, Issue 39, 1 September 1864, Page 2

RESIDENT MAGISTRATE'S COURT.

1 ?m (BefS^H. M«3Uocli Esq.EMT injpft coat valuett'at 20a., the proper'^ of *bne^ Q-eorge Jedd. '"v/ The prisoner acknowledged to hare taken away "tßrcdat^'Mrßtated^ha^be^ntended^to'Tefurn^ti^- --■> „The f Court allowed him to have the benefit of .aVvvdoub^lltP- his intention o?Si}Sn2aj£jtlg| article, and dismissed him with a caution. up on remand for stealitog>qnf bagjofl flour on the 18th Aueust, the property of John Erans, master of the'Tingant : ine~tln"ib'nT""*~ < """ " " "* Mr Button appealed for the prosecution- „-, The prisoner pWded v Not Gtfiilty:" Mr Gt. W^rßiniiey -deposed- as follows rT-^I/ am 'agent of the'b'Kgahtme' Union.' 'No ' goods we're shipped by that vessel for prisoner.;! 100 bags of flour, marked " B, White's Valley," were on board tbnt.-VeVselTor'Butther'and'HaUetfstein.- One'bag" of that flour was misshig, also, twobags of. another mark. Witness, ' in " consequence of r that, 1 made j search- .and Went with' -Detective Thompson -.to "Mr Butts, hairdresser, Dee Btreet, and found the ba<? of flour produced, which, correspondsiwith the bag lost. Prisoner is a forwarding agent, and as such was employed in this case by Buttner and TTftllen stein to forward their goods from the Jetty. Witness's clerk; and the Jetty keeper would get^a receipt from the prisoner, for goods, Thii is prisoner's receipt from' the drayman. On the 18th August there- is a receipt for -10 cases of kerosene, but none for flour. John Evans, master of the Union, deposed that a bag of flour consigned to Buttner and Tlallenstein was missing. "No other flour had a similar mrrk. Witness 'identified the bag produced. John Pavne also identified bag of flour produced. Witness was chief officer of the vessel. .Tames Henderson, jetty clerk, produced ' his book, and deposed that he knew prisoner as a forwarding agent. On the 18th August, had prisoner's receipt for flour, but not for three bags, nor for one bag. Ten cases of kerosene were delivered to Pike, the drayman, on prisoner's order. Robert Spencer, as agent for Mr. Binney, deposed that on the 18th August he took a receipt from prisoner for flour, but not for three bags, nor one bag. Took also a receipt for 10 cases of kerosene. Detective Thompson deposed to finding the ba? of flour produced in the back room at Mr. Butts' house. Baxter Pike, a drayman, deposed that some j time since he was employed by prisoner to take three or four bags of flour to Mr Butts', and 10 cases of kerosene to Buttner and Hallenstein'a. Witness had a ticket for tha flour, but it was not on the same ticket as the kerosene. Th.B flour was lying on the jetty near the crane. Henry Butts, hairdresser, deposed that he bought a bag of flour from prisoner. Pike delivered it, together with two other bags of flour and some po'at.oes. Subsequently, witness got an order to deliver some flour and a bag of potatoes to another party. The bag of flour produced resembles the one witness bought from prisoner. By Prisoner — The flour was standing in the shop. This was the case for the prosecntion. j Tn his defence, the prisoner said he never intended to deny having sold that bag of flour; but he had no idea that it came from the Union, but he thought it belonged to Borne bags of flour which he had purchased from the Dart. It was, as one of the witnesses had stated, lying near thecrane on the jetty, andhad been taken in mistake. j Mr. M'Cullo'ch said that the case had been clearly proved against the prisoner, and the senI tenco'of the Court was, that ho be-ituprisoned and kept to hard labor for three months. Wednesday, 31st August. (Before H. M'Culloch, Esq., E.M.) Morris Salek, whose sureties had surrendered thoir recognizances, was brought up in the custody of the police. Sergeant Baker deposed to finding Salek 22 miles beyond the Mat-aura, on his way to Dunedin. The Alagistrate ordered him to find bail as be- , fore, or go to gaol. Went to gaol. BREACH A&AIN3T THE FOOTPATH ORDINANCE. Mr MeCulloch waa charged with this offence in Esk-street. The accused said he had only gone across the gratings to his own place — not more than 14 or 15 feet. He was fined 205., the evidence being to the effect that he had gone a greater distance than ho had stated. iDOO- XTTISANCE OBDINANCE. Two ca?es of parties havin* in their possession docs unregistered at 12th August, were dismissed, the owners having, since the issue of summons, taken out Registration Tickets. Another case was adjourned for further evidence; and a fourth pa-ty, on undertaking to register the dog and paying espouses of Court, had his case dismissed. BUBKE V. SHERLOCK. This was an adjourned case in which plaintiff sought to recover £3 12s. BJ., for board and sundries supplied to defendant at the Green Hills. The plaintiff produced big books and proved the debt, Tlia Court found judgment for the plaintiff. Defendant paying the debt in two payments of £1 16s. 4d. each. LI^D Y. WATSOX. Claim for £8 7s. 6d. for board and lodging. No Defence, Verdict for amount with costs. TELLING V. SUCHOLA3. Claim for £14 2s. for stabling, &c. Mr. Button for the plaintiff; defendant,inper3on. The defence was, "not indebted" beyond the sum of £7 35., paid into Court. Mr. Pelling was examined, and deposed to two entire horses belonging to defendant being brought to his stables by his (Nicholas') servants. The account had been rendered soveral times. Defendant objected to the charges for the second horse, which had been brought by one Fitzsimmons, a servant of defendants. £1 16s. was all which had been paid to plaintiff. For the defence, Mr. Nicholas deposed that he ■was the owner of the entire horse, " His Excellency." Fitzsimmons was in charge of the horse, and was not allowed another horse to ride alongside, and I was not liable for the expense thus incurred. Defendant likewise stated that he had only one entire horse. The account was paid up to 18th September. Mr. Button, having elicited from witness that he had not got the receipt for this payment, he objected to this part of the evidence. Mr. Button contended that Fitzsimmons, being in the service of defendant, had without doubt misled the plaintiff as to the ownership of the 83cond horse, and insisted that he (Nicholas) must clearly be held liable. Verdict for £14 125., with costs. TOWN BOARD V: CALDER AND CO. This was an action raised to recover £18 18s., for ordinary assessment as amended. Mr. Joyce appeared on behalf of the Board. Mr. Calder for the defence. ; The account was not disputed, but a set-off to a larger amount, for special rates was put in, being to the extent of £-11. Mr. Joyce, in to Mr. Calder, acknowledged that the: special rate had been in Court pronounced illegal. He thought, howerer, that the claim for the .ordinary assessment aa now sued for could not be disturbed. . Mi-rCalder stated' that he "bad no intention to sue the Board for the £41 for these special rates, but thought it altogether wrong that the Board should attempt to recoVer thi{££lß 18a. for ordinary assessment, Beeing^hati.it;' hold illegally a earn much,.largpr. in ? amouri£ bclo'nging } to f them. Mr. Cald^r'furtb.er sta'fed ihfit^e 'would take' out the repayment of this dS4l*by-ordinary aase»smonts. I ThoTßesi'ddntD Magistrate .considered that (the dfcfendMrt^^eou^ngtpp^ £4JC ojldTfor special'.' -it.tesj^Boemg;' this sum' bad' been paid without appeal* and;gare> judgment ,for £18

BPBNOB J^VliXXVt6^M?^JTiks& AOTf. aStx tton and Mr. M©oial^||9r)the[prosectU;ion. ni fe|j *: ' This was an'action to|r?cc)Terxtite sumpf £9S£ " being proceed^^sertaimeffeis^^bld^m'dCTy^lM-'^ ___, tress wai^an^tthe^a^Mlaf^efendflxit^aflfflr^'"^ ' the execution of a deed *cfeassignment by Mr. Stephen Sparling to the -plaintiffs aa trustees for * rbehodf^f^his^creditorsi-'^-^-^B^men^^had^^beeni s**?5 **? ,lodged with ..Mr. M. Price, v ';the tb.en.,R. M.^and,, 1 recover fth'e aino)inv frSrn hitn7 Jot the general benefi£of the estate. - r g™J"ohnston*deposedito"&6>deed^ -ment of Stephen? Spurlingrtqhii tru9tee?'b"eing datejd 17th. May'last/ and filed On 'the"lßtn May ■ -with Kim~aT^lie"gistrar~T3f "'the" Supreme' 'Court: The I'" trustees named- r therein were^Spence^and HaTnilton, to 'wn'bmSrere"' assigned "all the^ property - *anci !effects(-6f whatever-i.nature^bpbngingiat^that^_ time' to S. Spurling.. * . JL ' y^y^^^p.f* Mr. W. S. Reid,^solicitor] depbsedf^p^repared;.^;^^ the deed of assignment produced. Spurling called ■ "* "on" the evening of4Ke}l6fch-May/andJfrOTn. His iri-^ structions I : .drew it. out without a draft that .sama.- : . v - evening. He wsia ' «to' call -next nionimg,.and_noi- - , / - did calL I know notT when the deed was' cxc-_ ' ; cuted. The body of the attestations was made" by"*' me. : I ; could not n »ay positively when I did so. ..,„ » W. (%. BeaumoPt/. a clert of Mr. Button's. 4^. • posed' % "Heed being ; executed ;by 'Mr. '^SprlingV ;" ; ;. and Mr. Rpence^ro f % of the';'l7tb. ~ ' May. Mr. ,Spurli n 4 signed'the deed first, in Mr. . Wesson's office. Mr. Spence came up afterwards^ .j. and sienedit. .lHamiltqn v X believe^ deed either on the afternoon of , the .same ; day, or ;q y the morning of the iStb— l cannot swear ,to either day. «•••-■■-■■--' .•■-..,..-._....•:■ . : x...-.■>■' ' ..-.■>■'- ■;<■-■.- »i^ s----. Mr. C. "B. ButtoTi, solicitor, deposed to the execution of the assignment. Mr. ButtneV 'cattfe with Spurlin? to eive me instructions regarding tlio preparation of a deed of- assignment r for the beh oof of Mb creditors. This was on the 18th, or 14th May. Spurling was anxious that Mr. Buttner should be" made Vtrustee. Mr. Spurling after- ■; ■ wards said that'Mr.Buttner, refused. .MJ^lteid drew out the deed on the 16th. I gave it out on the 17th, and it came back executed before ten o'clock. Mr. Spence came shortly afterwards and I impressed on him the desirability ©f getting possession of the property. He left with Mr. Spurling for this purpose. 1 " Mr. Hamilton's signature w attached to the deed before it was filed on the 38th.- •:■■.. > My. John Spence, one of the plaintiffs.— l am one of the trustees.- I signed .-the deed on the morning of the 17th: After tliis I sent a man to take possession of the goods. . ; . \-■ Cross-examined.— Spvirling signed before me. T don't .know Hamilton jsigned the deed. He was down the harbor clearing out the Balmoral. O. W. Evans, storeman ; to Spence deposed to taking possession of Mr. Spurling' s , premises and goods. It was before 10 o'clock oh the I7rti May. He gave me. two keys. I kept possession of the place. About a dozen rushed into the place three-quarters of an hour after I went. —There was a scuffle, ear-h trying to put out the other. The police put us all out. I was fined £5. ; , . . Cross-examined. — I swear I went before 10 oVlor>k to Spurlinsr's. I did not know that Mr. M'Nab had a magistrate' 9 warrant till about an hour subsequently. I don't know anything- of the deed. T did not read the warrant. I never said it was five minutes to twelve o'clock when I went to take possession. ■Re-examined.— The row commenced- directly M'Nab and the others rushed into the store. J. Cavell gave corroborative evidence. Mr. Hare, clerk to the Bench,, produced the records of the Resident Magistrate's Court for 17th May last. In the case Buttner and Hallenstein v. Spurlins, judgment was given for plaintiffs after II o'clock. ' Execution was taken out same day. The proceeds of sale were £113 odd, as_given over to Court- Buttner's claim was for £95, and. Hewit and Co. for £17 odd. Mr. M'Nab deposed to going with a warrant to take possession of the premises. Took an inven- .. Tory of the goods the following morning.,. .... They were sold by Mendoza. Was in possession in company with Barnett the bailiff. The police took away Evans. ..'■■■■■■. Mr. South applied for a non-suit on the ground . that the deed wa3 imperfect on the 17 th May, as Mr. Hamilton did not sign it on that day, and as it was not even registered . that day. He held, therefore, that the proceedings under the deed . could not upset the warrant under the seal of the . Resident Magistrate's Court. The deed, even if perfect, was not on the premises on the ; 17th May, and it was not shown that the Trustees had . legal possession. .--... -• ■ . Mr Button considered the case was not m such ; a position as that a nonsuit should be applied for, As the facts of the case were elicited it would be seen whether the Magistrate felt himself in a . position to decide on the matter. The Magistrate decided that the case should go on. Mr Hermann Buttner deposed — About 10 o'clock on the L-th May. was the first time I learnt of the assignment. The bill due to us fell due on the Saturday previous (the 14th). I went to : Mr Button with Mr Spurling on the 16th. I did not promise to be a party to the assignment. ; The bill due on Saturday wa3 not met, to my surprise, as I had got no notice of this. It must have been about the middle or afternoon of the" 16th when we called. The amount of my claim was £89. I had, I think,* a summons with me at the time,- -but - seeing that nothing satisfactory was done, I took out proceedings, and sold off the effects next day. With Messrs Green, Hewitt, andMcNab, 1 went _ to the premises in Gala-street with a warrant to take possession. Mr McNab had the warrant and entered. There was a desperate resistance by Evans and Spurling. Never saw men so* excited in the -whole of my life. They very much obstructed Mr: . M'Jfab in the execu- .. tion of his duty. He was very illused, indeed/ I thought the warrant got torn up ; I now see it wasn't, but it was my impression. The first time I saw the deed of assignment, was when I went on the' same day (17 th) with Mr. Hewitt to Mr. ' Button's to see if we were perfectly justified in keeping possessionr Mr/ Button was nota'thome, • but the deed of assignment was ...shown to us. The deed produced is the one I saw. It was not finished in this manner./ The signature of Spurling was attested by Mr. Westori ; that of Mr. Spence was not witnessed.; This was on the ; 17th May. Mr. Hamilton's signature , was not there. The date of the deed, I believe, was the 17th. There was no evidence of any registration ■ of the deed. I took advice, and 'kept possession of the premises. The sale took place, and the money was paid into Court. . Mr. D. M'Nab!; deposed, rto his- being appointed ■ special bailiff with a warrant to take possession of the premises.' Went ''at a quarter to twelTO o'clock.- A -row, ensued when I went in. Spur- ; ling brandished liis axe. Showed him the warrant, ; .which he' tried to snatch' from me. Left the other '■ bailiff,^Barnett, in ..charge.: : .- ? :s, j. ;;>• ; A' i Some discussion then ensued as,,, to evidence being given by Mr. Hewith- .< Counsel on either side . agreed to ,elicit the opinion of the Court, on the facts' before- it, leav- , ing the arguments on the legal/points involvedjn ___ abeyance. , 0n the issues, ~Mr. If r (7uTloch found ■ that on the morning of the 17 th^ May, Spurhng and Spence only had exeWte'dH"he deed, and that >" Hamilton had signed it between midday of the \ 17th anil the r m6rningof the 18th. a Johli -Spenca and John Hamilton, as,, trustees of the, deed r ■'■" todk'possession of tlie' premises, and "delivery waa ; given. He also found thatr under distress wart rants:.the defendantflAhad. caused thevgoodsr tobe I levied. ■";-:,';■*:-■ ■ii'--:^.----" : ,-i-.- ■■■:■/;/: ;- t --r.n: v'r:c- . rMr South then r Court, for r .tne >~ 'defence at v - greats length^ ur!, whicbt-^he^ dwelt , s bongly on. the imperfect nature of the Deed of L Assignment. . ' .':.^'c:^;"-:.. : V ■ -a ■:■;■■?: -.■■vT-;. : . * i ]^M&dbniad^epUc^-^the7pri^^ * cited Hhe-law^on^the execution* of aeeds,- j[ . niaintained therefrom^at it was pojt rußcesaary to ; have more thatt^fne'^ignature' bf^the-conveyng . party in compliance ivnth: Englishllaw, and the > HQonveyancing^Ordiuanc'o. f „ '■ .-,■.,-■!? A . tli After eMr - SSutK Kad^ again vaddreßßed- the r Court, : reierve mdginouttijl th& wlXowingroorning,