RESIDENT MAGISTRATE'S COURT.

Westport Times, Volume II, Issue 287, 2 July 1868, Page 2

RESIDENT MAGISTRATE'S COURT.

(Before T. A. S. Esq, R.M.) Wednespat, July Ist. IS6S. There were no police cases on the sheet. CIVIL CASES. Goodwin v. Smith—Mr Campbell, on behalf of defendant, applied for a postponement, as the summons had only been served on the night previous. The plaintiff stated that he thought the defendant was leaving, but as he failed to substantiate this fact the case was postponed till Tuesday next. Pollock, trustee in the estate of H. L. Kennedy v. Johnston—Mr Tyler for the plaintiff, Mr Pitt for the defence. This was an action to recover the sum of £IOO paid, as was alleged, through the deceit of defendant under circumstances which will be found detailed in evidence. Mr Whiteford, agent of the trustee produced documents in the bankruptcy of H. L Kennedy. In reply to Mr Pitt the witness said, that at the only meeting held there were no creditors present, or that pi-oved their debts, neither were there any supervisors appointed. H. L. Kennedy deposed—l am a publican residing at Charleston, and know the defendant. On the 7th of last February he asked me to advance money to Mr Heighway. I refused to do so as long as he (Johnston) held a bill of sale over Heighway's property, and Johnston then left saying he would o-o and sell Heighway up. He returned next day with Mr Kirton, of the bank, and Mr Heighway. We had some conversation in which defendant said " if you will advance me £IOO on Heighway's account I will cnncel the bill of sale and if you will endorse the acceptances given by Heighway for the balance I will take them from you as the only security I will take over his share" I told him that if he would give Heighway two months to pay each bill of £SO in, I would do so, and advance the money, but on condition that ho held no bill of sale. Kirton recommended defendant to accept the offer, and he did so. Mr O'Neill was sent for, and took the necessary steps for cancelling the bill of sale. I then gave defendant a cheoue for £IOO. At this time Heighway owed me money, I am not certain as to the amount, but from £SO to £BO. At the the time I gave this cheque I asked Heighway for security, and in the presence of defendant Heighway authorised Mr O'Neill to draw up a document to that effect. I have never got any bill of sale or security, because I believed Heighway's position perfectly good. Nothing further transpired and I considered the business closed. I saw defendant about two months after when the first bill came due, about the Bth April, defendant said that a bill had been dishonored, and I told him that I had offered to pay it, but they refused to take the money but wanted the whole. Defendant said that he had a bill of sale, and that he would recover at once. I said he could have no bill of sale, and that he had better sue on the bill and if he was entitled to it, he could get the whole amount. Defendant then did foreclose on the bill of sale and sold Heighway's share for a trifling sum to Mr M'Carthy. This caused me to lose the money Heighway was owing to me, for it left him without a shilling or a shilling's worth of propery. I would not have advanced any money unless defendant had stated that he would hold no bill of sale. Cross-examined by Mr Pitt.—One hundred cash and bills at two, four, six, eight and ten months were given for the balance. The first bill became due in April, I believe it was about that time I filed my schedule, I think I filed the very day the bill fell due. The bank never asked me for the money but I tendered it when it was due, and the manager declined to take it. Johnston sold to M'Carthy on the 17th of April, after I had filed my schedule. The bills were not paid for they were not due. I did not put John ston's name in my list of liabilities, for I did not expect

to have to pay the bills. I should ne\ r er have had need to pay a shilling of them if defendant had left Heighway alone. After my insolvency defendant sold to M'Carthy. I was owner of onehalf of the hotel. I may say that I am making a deal with M'Carthy for the whole hotel. I had a half interest when the first bill became due, and after the fraudulent representation. I was pressed for expenses of a law suit in Marlborough, and this loss compelled me to file my schedule. I had parted with mv interest to Mr M'Carthy before I filed my schedule. At the time of filing my schedule I had no interest whatever in the hotel. I did not return defendant as a creditor in mv schedule, neither did I place this £IOO, but I told Mr Tyler, and wished it recovered for the creditors. I never asked Heighway for a bill of sale, for I believed him perfectly honest, and do now. I can prove that Mr O'Neill drew up a document authorising the cancelling of a bill of sale, and Mr Johnston signed it. It was signed, though what became of it I do not know. I never authorised Mr O'Neill to prepare a bill of sale from me to Mr M'Carthy. Re-examined by Mr Tyler—The reason of my insolvency was the loss of this £IOO, and an action brought against me in Maryborough.

By the Bench —I discovered that this bill of sale had been given just before the first bill was due. I did not discover for a month after I paid the £IOO that defendant held a bill of sale. Samuel Heigoway, said—l am a publican, residing at Charleston, In February last defendant held a bill of sale over my share in an hotel there, and I made default on a bill had given in payment. I was present when an arrangement was made about that time. Just before the .£IOO was paid I made a bill of sale over to Mr Johnston, on the undertaking that it should never be made use of or made known. Defendant, at the time, said it should never be made use of, that it was more to secure me than him. "We went to Mr Kennedy and defendant told him if he would give the £IOO and endorse the balance of the bills he would hold no bill of sale over his interest. Mr Kennedy said that he would advance the money on those conditions and no other. If Mr Johnston had any lien on my property he would not advance a shilling. An hour before that Mr Johnston had £ot me t"> sign a bill of sale on condition that it should never be made use of nor ever mentioned. If I had known it wou'd, 1 would rather have cut my hand off than signed it. I offered security to Mr Kennedy for the money he advanced. If I had been let alone the bills wonld have been paid, and the money for the first bill was ready. Defendant would not wait but sold my share for £2OO that is worth £IOOO. I am left penniless and am not in a position to pay £IOO. By Mr Pitt—l signed a bill of sale about an hour before this took place. M'Carthy has my share now. The sale of the share took place after the first bill was not paid. Mr Kennedy has been in possession of the place since, as manager for Mr M'Carthy. I never told Mr Kennedy anything about the bill of sale before the money was paid. At that time I thought the bill of sale was destroyed. I told Kennedy when he was going through the Insolvency Court that I had given the bill of sale. He was very vexed at it. He did not tell me he knew it, for he did not know it. If he knew I should have heard of it. This was before the first bill came due. Kennedy never asked me to give security and he never asked me to give a bill of sale to M'Carthy. Kennedy assigned to M'Carthy before the insolvency. The bill produced is a bill for board due to M'Carthy and Co., and is dated xVlarch 30th

Re-examined by Mr Tyler—"When I told Kennedy that I had given the bill of sale he went to the bank and spoke to the manager about it. Edward A. Drury examined—Tn the month of February last 1 saw Mr Johnston with Mr Dwan, and that time I was managing for Mr Dodd. Defendant asked me to prepare a bill of sale, aid I did so. He told me not to allow any one to know of the existence of this bill of sale.

Mr Pitt objected to the witness giving evidence which revealed the secrets of a client-

Mr Tyler argued that such communication was not privileged, and that as a clerk the witness had a perfect right to give such evidence, for this was foreign to the contents of the bill of sale.

The Bench agreed with Mr Pitt that these communications were privileged. Examination continued —After the bill of sale had been completed I saw Johnston, when he told me he had got

£IOO from Kennedy, and that he had Heigh way to rights, or words to that effect. He said he had bested Kennedy and got Heighway to rights. The bill of sale was executed by Heighway. I received instructions in the afternoon, and wrote the bill of sale at once. I believe I was paid by Mr Dwan, as for Mr Johnston. Mr Allen O'jSTeil], barrister, proved that he received certain instructions, defendant and Mr Kirtori being present. He understood that Heighway owed Johnston £350, and held a bill of sale for it. The bill of sale was to be cancelled, and Mr Johnston was to bold no bill of sale, on condition of Kennedy paying £IOO, and endorsing bills of Heighway's. Mr Pitt submitted that the real plaintiff was Mr Kennedy, and that it was not competent for bini to sue • even if the creditors were really suing,' the suit could not be sustained. By the 12th part of the Bankruptcy Act, even the trustee could only bring actions by the consent of the supervisor. When there was no trustee or supervisor no action could be brought. He read an extract from the Act in support of this argument. The trustee could not sue unless supervisors were appointed. If the Act was defective in this respect that was no fault of his, but so the law stood. As the creditors had not appointed any trustee or supervisors the provisional trustee could not sue. Mr Tyler did not see much to answer, and thought it would have been more creditable if they had gone into the merits of the case, instead of . raising a technical objection. The Magistrate sai'd that the 102 nd section met the objection completely, and the case proceeded. Mr Pitt said that he did not intend to call witnesses but the defendant insisted on being examined. After corrobborating the evidence of Kennedy as to the earlier portions of the transaction he said, Mr Tyler was acting as my agent and told me in reference to the bill first due, that it was not worth suing Kennedy for he had filed bis schedule, and he was not worth powder and shot! I subsequently sold the half to Mr M'Carthy. _By Mr Tyler.—l sold it under the . bill of sale given the same day that I received the £IOO. I got the second bill of sale to protect myself, for I knew Kennedy was about to file his schedule. I did not tell Kennedy when he was advancing the £IOO that I had a bill of sale. I never told M'Carthy that I had sold Kennedy at last. When the first bill came due, 1 was not Offered a single shilling of it, Mr M'Kowen never me that £3O had been offered. ' I received the letter produced dated Feb 29. from Mr Kirton in reference ; to this matter. (This contained conditions in which Kennedy offered to pay the bills if the second bili of sale was cancelled.) By Mr Pitt.—lf the bills had been paid I should have taken no action on the bill of sale.

By the Bench.—Kennedy agreed to advance the £IOO on condition of my destroying the original bill of sale for £6OO. When he gave me the money there was no mention of any second, bill of sale. I saw Mr Dwan and Mr Drury after the agreement was made. There were actually at the time of receiving the money two bills in existance. I did not tell Heighway the second bill was a mere matter of form, neither did I tell him I did not want anyone to know anything about it, Heighway himself wished nothing known about it.

Mr Pitt addressed the Bench for the defence, arguing that the whole conditions of tho agreement had been complied with by the destruction of the original bill of sale, and that the defendant was perfectly justified in securing himself in the manner he had done. Mr Kennedy never intended to pay the bills, as shown by the fact of his filing his schedule on the day the first bill was due, and defendant was only a little too smart for him. The action was brought for the benefit of Mr Kennedy alone. Mr Tyler in reply, denied that the money would in the least degree benefit Mr Kennedy, for if a verdict was received it would go to beuefit the creditors. He then went through the case and concluded by saying that the claim had been fully made out, and that- MrKon i dy had paid the money by a false representation on the part of defendant.

The Magistrate remarked that a great deal of extraneous matter had been imported into the case, which, when discarded of what was irrevalent was very simple. The question was first, what were the conditions under which the £IOO was paid, and second were they fulfilled. After carefully reviewing the evidence he said he was of opinion that these condition.".

Intel not been fulfilled, lie wou'.d not make any remarks on the general complexion of the ail'air, but would give judgment for the plantiff for the full amount claimed and costs.