THE LEACH ESTATE.

Temuka Leader, Issue 1075, 24 February 1883, Page 3

THE LEACH ESTATE.

In tho District Court on Thursday, the case of G- Bolton a»d 0. Blyth (as trns tees of David Leacb[ v. J. Brown—Claim, £2OO, value of goods wrongfully seized a«d converted came on, Mr White for plaintiff, Mr Hamersley, instructed by Mr Austin, for defendant The defendant’s pleas denied the appointment of the plaintiff-* as trustees ; dr nied the property of the goods claimed in the plaintiffs; set up a bill of sale under which the defendant claimed all the property in question except certain articles claimed to be his own property ; that the property belonged to him by deed of assignment; and that he was fully entitled to take possession of the property. The question of the trusteeship has been tried once a*d is now nnder appeal, and this question it was agreed sb ould stand over. Mr White, when the bill of sale was produced, said the plaintiffs alleged that the claim under it had been satisfied in various ways, and the bill was now of no value whatever. They show that I lie parties, the defendant Brown and the debtor 'Leach, had colluded together for the purpose of securing a decided benefit to the former in the disposal of the debtor’s goods; that Blown had received and retained moneysthat he was not in any way en titled to ; that the plea of the bill of sale was not a truthful one ; and that the defendant was in league with others to pre vent the estate being properly received and administered.

Geoi'ge' Bolton, one of the trustees, gave evidence of the seizure of certain goods and chattels belonging to Leash by Brown. Among these were cattle, which Brown offered for sale to Mr Ackroyd. He said Mr Brown asked air Ackroyd * What will you give per head for tho cattle ? ! He gave us to underat md he had seized them from Leach. I was present at the first meeting of creditors and so was Mr Brou n, and ho said he would give back what he had seized under the bill of salens he found it was no good. After the meeting of creditors Mr Blyth and I asked him for the money he had seized out of the estate, and ha told us to ask Messrs Matson, Cox and Co„ as he had not received the money front them. I told him we knew nothing of Messrs Matson, Cox and Co. in the matter, and that we looked to him, Ha promised to get the money for ns. Two days afterwards we asked him if he had a reply from Messrs Matson. Cox and Co. He said it was not satisfactory He afterwards Offered to pay £52, being for pigs and cattle sold, and Slid he would leave the balance until lie heard further from Messrs Matson, Cox and Co. H • afterwards declined to pay anything. He (witness) had served not ices on h'm At a creditors meeting in Temuka, Mr Thomas a<kid Leach, * What about the pigs 1’ He said ‘ You know 1 could baybad those pigs, but you sold them to Mr Brown.’ 1 would have given £SO fur them, Mr Brown admitted having sold the pigs to McCallura for £2O, and that he did not see them. The proof of debt produced was sworn to by Mr Brown in tho estate, 1 gave notice of rejection of the claim.

To Mr Hamersley : 1 did not see the p : gs, and do not know how many of them were there. Messrs Matson, Cox and Co. when they sold the cattle for Brown stuck to the money, as they were creditors in the estate of David Leach. Mr Thomas said he would be ready to disgorge, and Mr Brown said 'he same. I am making inquiries as to Wildie, Allan and Stumbles, hut we have not taken action thereaint.il Brown’s case is settled We have got £42 hook debts and £73 for the land, but it wap only lately we got it We also got £4O for cattle, and it is spent, (Witness recounted the number of actions taken against them, and His Honor remarked ‘\ou have had lively times.’) There was £BO or £93 damage done to the land, and no one would care to buy because of the disturbance, A portion of the crop was green when cut. To Mr White : Tills is the first dine I have been in the position of plaintiff. In all the others I . was defendant. Mr McCann gave notice Shat he would bring an action against us for £75. Now. he has withdrawn that and given notice that ho will bring an action in the Supreme Court for £SOO. W. Ackroyd : 1 accompanied Messrs Bolton and Brown to a paddock of Mr Brown’s and Mr Brown asked me if I would buy the 42 head of cattle that were there. Could not value them. When I went down a second time McCann and

others were there. I believe some of thorn had their tails cut, in the event of my buying the' cattle 1 was to pay Upriohard.

| l’o Mr HamersLy : Mr Brown asked me to make him an offer for them, j McG inn claimed 25 head, j W, P, Uprichard : I received an ! authority from Mr Brown to act as his i b ililf, and seize the butcher’s cart and | horse, belonging to Leach. I did sciza it, ; At Brown’s request I asked Quinn and j Ackroyd to come and see some cattle he had in his paddock. While tho cattle were in the paddock McCann claimed some of them. Tho cattle were offered for sale to Ackroyd and Quinn. The cart was put in Brown’s shed, and the horse in the stables. The meat in the cart was offered for sale, 1 do not know what became of the cattle. To Mr Hamersley : The meat was given back to Leach's man G. Battie : On Saturday, 11th Nov., was gent to the Lays farm with ten head of cattle by Mr Brown, The cattle were taken to Ashburton the following Monday by me and given to Messrs Matson, C»x and Co. for sale. Tho cattle were not soil on that day. They were left in Ashburton. A letter from Messrs Ma'son, Cox and Co, stating that they would sell 13 head of outdo, and also a butcher’s cart and harness was read. Witness : I Took the butcher’s cart to Geraldine. The boards on the cart bearing Leach’s name on it had been taken off. James Harrison ; I am a storeman employed by Mr Brown, and brother-in-law to Mr Brown Remembered going to Mr Brngden’s to tell him to bring the cattle down to the railway station to send them to Ashburton to be sold there, He would not swear that the message was not ‘ that Mr Brogdeu was to take the cattle to Ashburton and sell them there. I went wi'h Me.tda to see that the cattle were nob taken away from Leach’s. Leach brought them to Brown’s pad loc' ; Francis MeMe : I went at Brown’s instructions to Leach’s place. Mr Harrison, myself, the sergeant of police, and Leach, took ‘he catil-i to Brown’s paddock- Ido not know whether McCann was there or

William Brngrlen : 1 am manager for Mr John Hayhurst Mr Harrison came and asked whether I had received 13 head of cattle, and I told him ‘ Yes.’ He asked if 1 would take them to th* railway station on Monday morning. He asked me to consign them in my name to Ashburton. Ho did not tell me why they were to be co; - 1 to Matson, Cox and Co.

fieoige si until des : I remember Leach booming a bankrupt. Wis at his place ihree days before mid saw pigs there which I valued at £65 to £7O. Mr Brown took some of them to Dunedin. Saw 35 or 40 of them in railway trucks. To Mr Ham-rsiey : I could not swear they were the same pigs, 1 seized £lO9 worth of Leach’s goods before he ti ed. 1 had neither bill of sale nor judgment. The trustees have made ao demand on me for what I have seized.

To Mr White : While I had possession of the goods Mr Brown fried to take them under bill of sale. Mr Brown took out a summons against me, and afterwards withdrew it.

James Blyth :I am one of the trustees. Made a claim on Brown for the property sued for. Was present at the creditors meeting on tho 10ih of January, and heard he had things belonging to the estate; he offered to give them up. I am not sine, but I think it was said theie were 50 of the pigs, and Mr T. omas said they were worth at least £SO. Mr Brown said lie had never seen the pigs. To Mr Ham rsley : Mr Thomas said he wou d pay over what he had. Brown said he would give up everything he had, and mentioned the c irl, horse, cattle and pigs We got nothing from tho other credi o.’S who se zed.

William Budd : I bought a plough from Job Brown, and produce the receipt. I got the plough for £4. Ludwig Bass ; 1 made a butcher’s cart for David Laach on the 23rd of March. Leach was in possession of tho cart until he became bankrupt. The cost of it was £32. it was sold to a man in Geraldine. It was as good as new. To Mr Hamersley : I did not see what state it was in when sold.

W. Brodgpn, re called : So far as I could guess, the value of the cattle was £3los each.

D ivid Leach : The letter produced is not in ray hand-writing. About ten days before J filed I took some cattle to Mr Brown’s ; I do not know how many, but they were under 40 head. L look nli m because Allan and Stumbles had a -nt about 40 armed men to take them. [ look those that did not belong to me there for safety, and those that belonged to me I gave to Mr Brown. I sent Mr 8.-own word to send me some men to take the cattle, because 1 1 knew he had a paddock there. Some of them belonged to Mr Brown, Two of them belonged to Brown, and the majority of them belonged to McCann. McCann was doing certain work for me ; kept the butcher’s book, and lived with mo Ho had been two months with mo, He was doing the book-keeping for me for the run of his horses and his board. 1 gave him no wages. He used ro buy and sell stock, which used to run < n the place. There were about 25 head of the cattle belonging to McCann amongst che cattle I took to Brown’s. I mui ot say whether X told McCann anything abou the n. The cattle 1 were worth about £3 each. I did not

say (hey w*r-.* worth £3 15s, I did not seo Brown in the (Mddock with Ackrovd. I did not s■■o Ackr.-yd ami BAton there. I had abmtr. GJ p ; gs, Alton! 53 of t mm were delive'cd to McGVlmn, M ■ Br >wu having sold them to him for U2H. I had had not offered them to Mr Thomas at Messrs Matson, Cox ami Co.’s. Ha said at a meeting they wore worth £7O. Ho

is an auctioneer. My cart and horse got into Mr Brown’s possession. Mr Brown asked could he have it, and I said ‘ Yos. I paid £8 10s for the horso. The harness

cost £B. Mr Brown told mo he had sold the cart in Geraldine. I had a plough belonging to Mr Br own. It was lent to me by Mr Browo. I had it two or three years. 1 had another trap ;it belonged lo Mr Brown ; I had the loan of it for abon* !i couple of years. It was worth about £lO or £ls. It was taken from me about the same time as the otuer things before I filed. I had hired this trap out lo Mrs Gibbs at Is 6d per week. Brown was « creditor of mine, and had been troubling me for money. J was to pay him interest on a bill of sale. To Mr Hmnersley : I am not sure whether Thomas said tho pigs were worth £7O or £SO. I valued the pigs at £2O They were from throe months upwards. They had been running on grass

To Mr Hamersley : 1 think I owed Mr Brown about £3OO at the time ho made the demand on me. It was then that ho took the pigs, horse and trap. Allan and Stumbles had neither bill of sale nor judgment against me when they seized. Harrison and Meade came to me when Allan and Stumbles’ men were there to help in taking the cattle away.

To Mr White : That bill of sale was given in 1879. I was sold out under that bill of sale; Mr Gray was auctioneer. Mr Brown never gave the bill of sale up. I believe I had it in my hand to look at, but never had it in ray house, nor in my pocket while in my house. It was in November, 1879, I was sold up under riie bill of sale, Mr Brown gave me the bill of sale to take to Mr Austin’s.

The lease of the reserve having be- □ put into Court, Mr White aske i that the trustees should be assure! of b.)ing able to regain possession of the docurna it if it were used in Court. They had a goo I deal of trouble to get it, His Honor said documents put in in evidence must be returned to the party producing them. Mr Hamersley thought it rather amusing that such an applicition should be made. He hoped Mr White did not suspect him of su -lx conduct as his (Mr White's) clients had been guilty of —they had taken possession of the transfer in a vexy barefaced manner. The plainn'iu case having concluded, Mr Hanxinersley submitted tint the plaint ffs must be nonsuited, and argued in support at some length, the chief grounds being—(l) That this Court could not properly hear the case ; it ought to have been taken before the Bankrutcy Cuiirt or the Supreme Court, (2) That supposing tiis delivery of the goods by the debtor was a fraudelant preference, as far as the trustees and the defendant weie concerned, there could be no wrongful conversion until demand and refusal had been made, and it was shown that before these were made the defendant had sold the goods, so that it was out of his power to restore them. That being the case, tire action should have taken the form of an action to recover money had and received. This objection he considered fatal to the claim. He also pointed out that the value of the property seizsd, as fir as the evidence went, did not amount to £2OO. Mr White asked for time to consider thepoin s raised by Mr Hamersley, an! the Court adjourned at half-past four til! yesterday morning. On resuming' yesterday morning, Mr White said : The two points are that the bill of sale shows a title ; and second, that the action should have been brought for money had and received, because the goods were sold before demand was made fo* them, Ha contended that the bill of sale had been satisfied by everything in the schedule having been sold, In proof of that the bill of sale was no good, Mr Brown offered to return the money, and had sworn in his proof of debt that he held no security over the debtor’s pro* perty. He also withdrew his action against Wildie, Allan and Stumbles, showing that he did not rely on his hill of sale. And yet he seized under this bill of sale, sold under it, an! gave no credit for it in his proof of debt. The bill of sale was extinct, in 1879. The very last clause in the bill of sale stated that ho should sue for any amount which shou d remain due after having sold under the bill’ of sale. He, then, must have seized without having any authori y to do so, and was liable for tho value of the goods. There was evidence of surreptiousuess in seizing the cattle ; but it appeared that he did not seize the pigs at all, and yet sold them. And, then, can it be contended that because lie sold these things under their value, tin trn-tees cm recover only the amount had and received for them 1

Mr Hamersloy submitted that the plaurifi' hal ad mi. tod his point. He urged that lie was entitled to a nonsuit, because the g >o:ls had been taken with Mr Leach’s coas m £«r a prior debt as well asiu satisfaction of a bill of sale,

j ilis Honor Hiiid the seizure of the horse i aii'l carl, was iuJficicnl to refuse a nonsuit. He would hear the evilence, Jo’) Brown : J Indeonsi lon') 1 ■ I -alines | wir.ii Leach, who has been al -v iys in my debt since i took from hi u a biil of sale 'produced). A sale was etfjcfed under it because a man took p issession of Mr | Leach’s property under a distress warrant, J I paid the distress warrant. Snne of the j goods were bought at auction by me and j handed over to Mr Leach. I nevar gave lup the bill of sale to Leach. 1 have been advancing to Leach since on this bill of sale. Ho owed me £320 before he filed I demanded payment, but he did not pay me. He gave me the lease of the place I asked him to let me have what goods he possessed and he said he wo ild. This was about the 9tli Nov. He was quite wih'ng that I should have the whole of his goods I got mast of the goods. 1 seized 1 lie butcher’s cart, harness, horse and 10 head of cattle. Tlie trap and plough are my own stock. I seized no pigs btU I received £2O for fiO pigs on account of tie debt. The morning I seized the cart Leach said I could have the cart and horse. I received a three mornhs promissory note for £35 for the cart and harness. I received nothing from Messrs Matson, Cox and Co., for the cattle. About sof the cat tie were sold, anil the rest withdrawn from sale as they did not realize sufficient money. The goods wore transferr-d to me by Leach ton days bafore ha filed. To Mr White : Leach was L 320 in my debt when I seized these goods. I did not know then how ranch he owed me. The books were then produced. Mr White: When were those alterations, erasures and marks made ? Witness : At tiie time. Mr White ; When was this £IOO alter’d ?

Mr Brown ; 1 bought a house and land from Leach for £IOO. I crossed out £IOO and gave Leach credit for it, The other items were for rents recived. I sold some sections to different individuals and gave Leach credit for it.

His Honor: You brought the land. Well, then, what had Loach to do with ihe sale ?

Mr White : You crossed out £IOO credit and gave him credit for £l6. Mr Brown ; I gave him credit far £l3O Mr White ; Did you make £l3O out of the land ?

Mr Brown : I did not, but I gave him credit for £IOO.

Mr White : Did you te'l the trns’ees you made these erasures after Leach filed? Mr Brown : I admit that I made this erasure because I (bought it right to give credit to Leach for £IOO. I realised £126 by the bill of sale in 1879. I rea’ised £54 6s by what I took before L»acb filed, and there was between £3OO and £4OO due to me. I did not limit the auctioneer to the goods in the schedule. The sale realised £197 ; that is including what I bought myself, I did not give credit because I handed them over to him again. 1 received no money as interest on the bill of sale. I have asked for interest and principil. but did not get it. The hill of sale was transferred from Jonas. Hart md Wildie to mo. I sai 1 I would pay over the amount I received in order to settle this matter. I considered my hill of sale good when I seized, hut was told afterwards that it was not. I made a remark at the meeting in Tiinarn that the bill of sale was no good. Leach sent mo word that Wildie, Adlao and Stumbles were taking the cattle, and asked me to sand men to prevent it. lam not aware (hat I gave the men any instructions. X was surprised when the cattle were brought to my paddock. I sent them at 10 o’clock at night to Mr Brogd.m’s, Mr Hayhurst said he was not going to be mixtd up in any thing about Leach's business. I say my messenger had no instructions to tell Brogdeu to consign them in his own name. The cattle were sent in Battle’s name to Ashburton. Leach deposits 1 the lease nf the Maori reserve with me as collateral security to the bill of sale. I got £SO from McGann for it. I had promissory no'es, and I waited till they were matured. His Honor : And you swore in your proof of debt you had no security.

Mr Brown : Yes I see it now but that was unintentional.

Mr White : If yon seized under the bill of sale why did you leave it out of that (proof of debt). Mr Brown : I can’t say, Mr White : Did yon over give credit for the promissory notes you received from McCann ? Mr Bmwe : 1 can’t say [ did.

Mr White : Did I not ask you in Temnka if you had not been paid the amount of the £SO promissory note, and on said not a penny ?

Mr Brown ; I do not remember. Mr White : Weil not a shilling then ? Mr Biown ; I recollect saying I re ceivod £l7.

Mr While ; But was not that after I pro iuced the receipt for £l7 15s ‘ on account of a dishonored promissory note.’ You then pointed out you had given credit for £l7, Mr Brown ; Yes.

Mr White ; The receipt was given in July for £l7 15s, an 1 tlie credit given in October for £J7 only ?

Mr Brown : That is another mistake.

Mr White ; Do yon remember the reason you gave me for selling the lease to McCann was that you wanted money ? Mr Brown: Yes,

. M White ; Did you discount the note.-? I J | Mr B own ;N -. The bill .f sab; was j was given m J-.n 2tf! i 1879 ami I vavc. ' pr.i.uissmy r..c s f S-j... 9 ; ; '72 -■!«

j 9 i £2O and tfio. L* .-.cb n-rl no ,> .y ■. c . j Mr White :li appear* urn -a'cc urged ' interest twice over for these sums W.mt does that mean 1

Mr Brown ; When I gave the promissory notes I charged 2J percent interest, and when I had to pay 1 charged 2A per cent. Mr White ; I see you charged £99 6s interest for £3OO at 10 per cent for 2j years. What does that mean 1 Mr Brown : That was n.y arrangement with Mr Leach that I was to charge him interest.

Mr White : Hew is it you make it £3OO for years. Was it ever not more nor less, and how do yon make out that £99 6s is the interest on £300? It is £24 more than it ought to be. Mr Brown : I pointed out to the trustees that that was a mist ke. His Honor : But you swore to it.

Mr White : Yon point-d i' out to the trustees after they gave notice of disallow, ing your proof of debt. You bought a house from Mi Leach 1 Mr Brown : Yes.

Mr White ; Did anything happen to it?

Mr Brown: It was burned. It was insured for £3OO in Mr Jonas’s office, j received none of the insurance money, because it was insured in the name of David Leachj and the po icy had not been transferred to me There was an inquiry into the tire. I was not the first at tne fire that morning. Mr Hamersley objected to this evidence, and this concluded Mr White’s ex animation.

N. Dunlop, auctioneer at Geraldine, sold the horse aid trap for £37. He considered tout a good price, Oanie l M "Calum, p'g 'ha'er; Bought, pgs from Brown f r £3 • It, wis plenty 'or the n. I sent, them to Dmeli i. t g n £ 8 10s for them in Dublin, not initialing trainege. I sent 5) oig* t> Dn' ii i

To Mr Wnite; I bo ight them b f >re fc e B'h of N vmber. [ wn a bao>> core , Kis fc non. 1 f tnem f>rmy owo use. Divid Leach: I owe i a ou'. £3OO 'n Brown about tli • end of Oct oner [tit M Brown he omM 'aka the hors: and etcfc [ drove ab)ut 10 cattle to B‘own's p d I >ek 1 toll Bf-.wn lie cou d sell then. To Mr Whi'e: I told him to mil them to give him money. The strongest request he ever made on me wis that lie m ufc have money. I gave Mr Stumbles some cattle and sheep, ar.d he stole soma rao• [ dil n»t. s,y to him I s'i ill h ire non » r o •ny elf

Mr Hame shey thin urged hs nm-id'. point, nn I, 'ifrer s "ne a-g ime it, V£r Wor•* a*feed to withdraw all Mi* tern* in • li-* a'count except f O' '.he ho-ae m I 'rap. G unsal hav ng ad dre-sed the Cou-t H's Honor said : Hid ibis a ton b an brought in another form I wonld have lit le di-fculfc to d> al with if. The action was onver-oi of certain properties, consent has been positively sworn fc •, aat in the ibs nco o' counter evidence I do not fed justified in deciding that there was no such consent Under the circumstances, judgment will go for defendant. Th* conduct of fc <e d f e id ant howev r, w 8 such as -o j iv.i'y t’o- tar* tees in taking action. His proof of deb wis clearly wrong, inasmuch as the s ounties -re not xnen'hned, and, above a'l, there w-'e errors in his books, and tin re was the fact that he seize! by warrant under a v.i ue’ess bill of sale, the seizure being cloulati'd to deceive the trustees. Judgment w : ll be given without costs, as it was Mr Brown’s own fault. He had admitted owing the money end refused t < nay ii.