DISTRICT COURT.

Temuka Leader, Issue 2438, 15 December 1892, Page 4

DISTRICT COURT.

TlMAßU — Tuesday, December, 13th.

[Before His Honor Judge Ward.] BANKRUPTCY CASES.

Be Lewis Grant, Mr White, for the creditors, stated he did not propose going any further with the public examination; Mr Raymond, for bankrupt, thereupon asked His Honor to declare the examination closed, and His Honor did so. The further public examination of T. E. E. Jefcoate was adjourned till the January sitting on the application of Mr Raymond for opposing creditors; and the further examination of J. Maberley was similarly-postponed on the application of Mr White.

Orders of discharge were granted to J. McCabe (Mr White), J. J. Deeley (Mr Hay), and F. Drake (Mr Salmond). The application of J. Streeter (Mr Hay) for discharge was opposed by Mr Kinnerney for a creditor, and by consent was ordered to stand over till vV ednesday.

A motion to set aside a memorandum of mortgage from D. M. Ross to Mary E. Ross was adjourned to January ; as was also a motion to declare valid against the Assignee an agreement between D. M. Ross and Mrs J. 0. Bower. Mr Kinnerney for the Assignee, Mr Hay contra. An application to fix ownership of property as between the assignee, in the estate of William Collins and Mrs E. Smith was adjourned till January, Mr Hay, for the assignee, stating that there was a probability of an amicable settlement. Mr C. Berry, for Mrs Smith, consenting. Application for payment of costs out of estates was granted in the cases of J. J. Deeley and F. Drake. Orders were made releasing the assignee from further responsibility in respect of twenty-two bankruptcies which have been worked out. PROBATE, ETC. On the application of Mr Raymond probate was granted of the wills of William Couch, and James Macdonald, and letters of administration of the intestate estate of Harriet Lamer. CIVIL SUIT. William Joseph Gambling v. Job Brown, claim £SO damages for slander and £SO for malicious prosecution. Mr White for plaintiff', Mr Salmond for defendant. AH witnesses were ordered out of court. The defence filed was a general denial; further, that the alleged slanderous words were substantially true, and that plaintiff had been seen taking timber. W. J. Gambling, plaintiff, stated that when he took the shop (or rather his sister for him) it was littered up with timber and “ horses,” and he had to shift a quantity of stuff to make room to work. There was timber lying about the yard, and at different times he put pieces of this out of the weather in different places. A fortnight after taking the shop he had to clear up for painting, and at that time he put under the floor some strips that were in his way in the shop. A youth named Rowe was assisting him in clearing up, but he could not say if Rowe saw him put the strips under the floor. On the 12th November defendant came to the shop for the rent. Mrs Stanton was there. The defendant called him aside, and asked him if he had planted two pieces of timber that had been lying on the ground. Said, “ 1 don’t understand you,” and defendant replied, “ Now that will do, you planted that timber.” Told him he had not “ planted ” it, only put it out of the weather. Defendant asked, “Is there any more planted ? ” Said, “ No, there was none planted, but there was some put in other places.” Defendant asked him to pull it all out, and he did so. Also pulled a crowbar and a pulley from uuder the shop, that were not put there by him. After pulling out the timber defendant said “ I’ve got you.” Said “ If you think I stole your timber, why not have me arrested 1 ” Brown said, “I would if it were not for Mrs Stanton, your sister.” Replied, “ You need not study my sister; she will not uphold me in doing wrong.” Defendant then said, “ Look here, if you give me £5 I’ll let the matter go. You know God saw you put those pieces of timber out of the way.” Replied “ And God saw you trying to extract £5 from a man that has to work hard for all he gets.” Brown said that “ whatever was to be done would have to he done at once.” Took that to mean that the £5 would have to be paid at once. Defendant then got the key and locked up the shop. That was on a Saturday afternoon. On Monday afternoon Mrs Stanton, plaintiff and Mr Surridge, who went with them as a witness, went to defendant’s office and demanded the key. Defendant refused to give it up, saying he would not allow plaintiff on the premises again. Asked him for his reason, and defendant said “You are a thief, and not to be trusted.” Mrs Stanton cautioned him that she was acting under legal advice, and told him she was going to take possession. Defendant said to her, “ I’ll go with yon to the shop, and let you take your things out; but I will not allow that man in the place.” Instructed- by Mrs Stanton witness entered the shop by force, and had held possession since. Next day defendant made an offer, if plaintiff would clear up all the work he had in hand and give up the shop he would not ask a penny for anything. Declined the offer saying that they had taken the shop for six months and they would keep it. On the ICth instructed Mr White to demand reparation from defondant for his slanderous statement, and on the 17th received a summons for larceny. The case was heard on the 22ud and dismissed on merits. As a matter of fact ho had not stolen any timber of Brown’s He could not tay how much expense ho had been put to, but gave items running up to seven or eight pounds. After the plaintiff's examination in chief the court adjourned for lunch. Plaintiff, further examined, stated that after the commencement of the present proceedings Brown came to him and asked if they could not settle the matter. He said: “You have been led into this case by Mr White, because he is hard up for a job. He will only get a picking out of it; there is nothing in it for yon at all.” Told Brown if he could settle with Mr White it would be all right. Reported this conversation to Mr White. Defendant had Sheen with him at the time.

Cross-examined by Mr Salmoiul, plaintiff described in detail how he had found pieics of weed lying about the yard, and others on the floor of the shop, and to save the former from the weather, and to get the latter out of the way, ho had pushed them under the building, or, two pieces only, under the roof of a loan-to coal-shed, and in each case the ends of the piece* were visible. He had no thought of hiding, still less of stealing the timber; had no thought of anything but saving it from the weather. Did not toll Brown what ho had done simply because he did not think of it. The first time the slanderous words were used to himself only. He then got his sister to write to Brown for an explanation of why he closed the shop, hoping lie would repeat the words cm paper. The words wore

afterwards used, to his sister, and then | again in the presence of Surridge. In the conversation before Sheen, defendant did not offer anything, but witness understood that he would give something to settle the case. Told him he would not interfere ; ho must see Mr White. Did not get his costs in the lI.M. Court. Mr Salmond said that was an indication of wiiat the magistrate thought of the case.

Mr White said the costs were not asked for.

Annie Stanton, sister of, and assistant to plaintiff, gave evidence, corroborating that of her brother in respect of conversations with defendant when they had been together, and added other statements of which she knew independently. When she wrote to defendant, at her brother’s request, for an explanation of his closing the shop, defendant came to her house to explain, and said that he did not care to put his reason in writing. He said that there had been a wholesale pilfering going on. He had plenty of evidence; he knew all about it. He said “ I made him an offer on Saturday, that if he liked to give me £5 I would say no more about it.” Witness said : “ Suppose he is not in a position to give you £5 '! ” Defendant said that if he did not get it that afternoon they should not go into the shop again. Witness said that the business was suffering, work had come on Saturday, and had to be sent away. Defendant said the business might go to Hong Kong, he did not care about it; he would not have a pilferer about the place. In the interview when Surridge was present, defendant said that he would not have them in the shop again, and when her brother asked why, defendant said “ Because yon are a thief, and untrustworthy.”

To Mr Salmond ; Wrote to defendant for an explanation in the hope that he would put in writing what he bad spoken against her brother. Defendant told her that he had offered to take £5, to keep quiet Jabout the theft. No ;he did not say that he would allow them to stay if they bought the timber for £5. Surridge was taken as a witness if defendant said anything against her brother. A. W. Surridge, painter, gave evidence corroborating previous witnesses as to the interview with defendant. Under crossexamination the witness admitted that he had had a great row with defendant a couple of months ago —before that interview. If he had been in defendant’s place would not have suspected theft, but either that plaintiff had put the timber out of his way, or out of the way of the weather.

L. Rowe, a lad of 14, employed by plaintiff, saw him put some of the timber away, and heard him say it was to save it from cracking. Told Mr Brown this before the case came on at Temuka. This concluded plaintiff’s case.

Mr Salmond stated he would show that the defendant had reasonable and probable cause for believing that plaintiff had stolen his timber.

Job Brown, defendant, stated that he let a wheelwright’s shop to plaintiff. There was a quantity of timber and other material about which ho intended to sell by auction, and plaintiff knew that. About the Bth of November he received information which led him to suspect that Gambling was stealing timber, hiding it till after the sale, and he went to the shop and looked about for timber in places where he was told timber had been placed, but could see none except in the lean-to roof. When he asked how that came there plaintiff said he knew nothing about it. Said “ It’s no use your saying that, you were seen to put it there.” Plaintiff then acknowledged that he did put it there, and said it was two pieces he found lying about, and he put them there out of the weather. Witness, however, believed these two pieces were one long piece sawn in two. They showed recent sawing, and the sawn ends matched exactly. Using the information he had been given he compelled plaintiff to admit that he had put two lots of timber under the shop, and made him pull it out, about 40 pieces in all. Subsequently he found a few other pieces cleverly planted in the blacksmith’s shop adjoining, rented by Rowe. Plaintiff said he hoped witness would not take any action, and ho offered to say no more about it, on condition that plaintiff bought all the timber for £5, his object being to leave no timber for him to steal. Plaintiff said that was good enough, and he would go and see if he could get the money, and went away as if for that purpose, leaving witness to lock the door. Did not tell Mrs Stanton that that he would take £5 to say no more about it but for the timber. In the conversation with plaintiff in Sheen’s presence, said to plaintiff, “ What is this you have been saying to Sheen about settling the matter I ” Plaintiff said, “ I was only telling Sheen that I would like the matter settled as it has been a great trouble to me, and I should not have taken the action at all if it had not been for Mr White.” Said to him, “ Well 1 want you to understand that whether you settle the case or not, you arc not to expect a farthing from me.” Plaintiff said he would go and see Mr White. Defendant was cross-examined at considerable length. He was given information by Mr Barr and Mr Cruickshank. The defendant quite contradicted the evidence iff the plaintiff as to the quantify of the stock in the place and of timber lying about. Plaintiff and his sister had sworn quite untruly as to his offer to take £5. Believed the timber he offered was good value for £5. Would not swo ir he did not use strong words in speaking to M s Stanton, and when Si ir ridge was by. Mary McCalhnn, domestic servant at Mr Barr’s, next door to the shop, swore she saw Gambling take timber from a rack and plant it under the building at the back of the rack, where it could not i be seen. That was between 6.30 and 7 o’clock one morning. She told Mr Barr at breakfast time. Charles Cruickshank, also employed by Mr Barr, saw plantiff take a long scantling from the rack, saw it in two, and put the pieces under the coal-shed roof. The boy Rowe was with plaintiff at the time. Told Mr Barr what he had seen. Thomas Barr, baker, next door to the shop, on information from Cruickahank, pulled the two pieces from wuler the roof and left them in the yard. Tire girl McCallum showed him whore timber was 1 planted behind the rack. Observed that the opening under the floor (where the timber was stowed) was jammed fnjl of shavings. J. L. Rowe, blacksmith, authorised no one to place timber in his shop, and was not aware it was done till the enquiry commenced.

T. Bourke, constable at Temuka, gave evidence as to the preparation of the case .at Temuka.

T. B. Sheen, sailmakor, had conversations with plaintiff on Friday last, and subsequently brought plaintiff and defendant together. This witness corroborated defendant’s account of that conversation, not plaintiff’s. This closed defendant’s case. Mr White asked leave to call so me rebutting

evidence, and at 0.40 puli, the court adjourned till 10 o’clock on Wednesday morning. Wednesday, Dec. 14. The court resumed at 10 a.m.

Mr White applied for permission to recall plaintiff and his sister and another witness, to rebut the evidence of the girl McCallum, that she saw plaintiff “ planting ” timber on the morning of the 7th November, between G. 30 and 7 o’clock, and that she saw him there about 25 minutes. Mr Salmond objected to this rebutting evidence being given, as the other side knew that Miss McCallum must be called. Rebutting evidence was only for cases of surprise. His Honour permitted only the new witnesses to be called. R. Wood stated that he was owner or the house where plaintiff and his sister and her children lived, and he boarded with them. Plaintiff was accustomed to leave the house for the shop shortly before 8. He remembered Nov. 7th as a Monday during the time Mrs Stanton was ill. That morning witness was up first as usual, at 6 o’clock. He was away about half an hour between six and seven fetching his horse, (rambling was at the house when he went away and when ho came back, and did not go to the shop till nearly eight. It was simply impossible for anyone to go from the house to the shop, spend 25 minutes there (as Miss McCallum stated plaintiff did) and return to the house, a quarter of a mile away, in the half hour witness was away. Mr Salmond then addressed the Court for defendant and Mr White followed for plaintiff. His Honour said it would be difficult to find a case in which a prosecutor had not some private vengeance of his own to compass, as well as regard for tli3 nublic interests. In this case the plaintiff had been exceedingly ill advised; he would have been much wiser to leave the case where it was when it left the Resident Magistrate’s Court. According to his own account plaintiff had been in the habit of putting timber in various places, where according to the weight of evidence, it could not be seen. Surridge said he could see some of it, but his evidence could not be taken against that of the police constable and others. As to the timber behind the rack, the girl might be mistaken as to the time, but there was evidence of Barr who examined the place first, and then Brown who caused plaintiff himself to go and fish out the timber, and be had to go under the rack to get it out, as the girl stated he got under the rack and put it there. He could not but think that this case would not have been brought had it not been for the folly of the defendant, who ought to have let the slander case go on, or else have laid an information for larceny at once. But he shuffled the case with Stanton, waited till he got notice of action for slander, and then he laid an information. He had no choice but to give judgment in his favour, but he must say that it was an exhibition of extreme folly on his part. Mr Salmond asked for costs, but His Honor said he did not think it was a case for costs, as the action would not have been brought but for the action of Mr Salmond’s client. IN BANKRUTTCY. Mr White, on behalf of the Official Assignee, moved for a return of a reaper and binder removed by Mr M. Gray from the assets in the estate of Lewis Grant. Mr Tripp appeared for Mr Gray. In this caoe the bankrupt Grant bought from Mr Gray a Brantford binder on the time-payment syatom, and when the bankruptcy took place Mr Gray took possession of the binder. The grounds Mr Gray had for taking this action was that the machine was never the property of the bankrupt—that he had it only on line— but His Honor said he was sorry to have to decide against Mr Tripp in his first case before him. But the law was perfectly clear. This was a bill of sale, and the transaction was a purchase. Within three months of the bankruptcy the goods were handed back to the vendor, and not in the ordinary way of business, but simply in order to protect or prefer that particular creditor. He had no doubt that the preference was intended to be perfectly honest—that the debtor believed Mr Gray had a perfect right to the machine, and that Mr Gray believed so too. But the law would infer their intentions from their acts, and not from their words. The order would be granted, with costs—solicitor’s fee £3 3s, and disbursements.

Mr Hay appeared for James Streeter, who applied for an order of discharge, Mr Kinnerney, on behalf of Mr W. R. Border, opposed it. Evidence was given to the effect that Streeter took to Border his engine to repair. The cost came to over £6O, and when the job was finished Streeter said he could not pay because he had not his cheque book on him. He would, however, send the money. He afterwards gave Border a promissory note for the amount. At that time he had 25 acres of wheat and 15 acres of oats, and he thought he could pay, but the wet weather destroyed his crop, and also his season’s threshing, and he had to file. Mr Brown held a bailment over the threshing plant, and seized, and Border had to go in with the other creditors.

Mr Hay argued that Streeter did not know at the time ho incurred the liabi ity that the weather would turn out bad, and Mr Blown would seize the plant. There iv.is no evidence of fraud on the part of Streeter, Mr Kinnerney held that Streeter promised to pay cash, that he took the engine away m the absence of Mr Border, and urged that his conduct pointed to fraud.

His Ifo<»<;r s-iid it \var» not quite clear that Streeter had a faille expectation of being able to pay when he fvuiifractc.l the liability, and suspended the order of discharge f<»r three mouths. Mr Hay pj.oved for an order to transfer to Mr A. J. id. Sower 115 shares in the Timaru Gas Company now in f lie possession of the Deputy Official Assignee in the estate of D. M. Doss. Mr f lay stated the facts of the case. When Mr Bower wont Home in 1888 he left D. M. Ross to manage his business. Amongst other property Mr Bower had 115 shares in the G s Company, and these he transto Russ so ; s to (juiiify him him for a director of the company. Ho produced the transfer form, on the back of which WftS written a memorandum signed by Ross .stating Unit the shares were the property of Mr Bower, and that he (Roas) would be ready to transfer them back io Bower on his order or demand. This was dated February 8,1888, On the following day Ross made a list of the properties ho was to manage for the Bowers, and in it the gas shares wore mentioned. The dividends wore always paid to the credit of Bower, although the shares v/cro in Ross’s name. Ross mortgaged the shares to the bank for £1)00, and when the directors of the company heard this they warned the banker, who wrote to Ross demanding an explanation, and intimating he would dishonor Ross’s cheques until he had otherwise provided for paying hack the £ ( JUO, Boas also executed a deed of trust

in which ho left a record of the fact that the shares belonged to Bower. Evidence was then taken, and the case lasted all the afternoon. It was not finished when our reporter left.