RESIDENT MAGISTRATE COURT.

Westport Times, Volume III, Issue 532, 20 July 1869, Page 2

RESIDENT MAGISTRATE COURT.

(Before J. Giles Esq., E. M.) Mondat, July 19. disorderly conduct. John Kirwan was charged with disorderly conduct in the public street, on Sunday afternoon. He was further charged with resisting and assaulting the police. He admitted the first charge, and denied the second. It was stated in evidence by the police that, after being arrested for threatening to fight in the street, and when being taken to a cell in the lock-up, be resisted and kicked Sergeant Kiely. He was fined 40s, with the alternative of 48 hours' imprisonment.

Peter Heron and Patrick White were also charged with disorderly conduct, which the police admitted had been induced by the behaviour of the other defendant. The charge against Heron was dismissed, and that against White the Magistrate considered suffi cient to come under the Act, and he was fined ss. Whilo the cases were being heard, a person in the body of the Court-room created a disturbance, and was taken into custody until the rising of the Court. The person who had been taken into custody, and who gave his name as Thomas Daly, was, before the rising of the Court, brought up for contempt. When asked what lie had to say, he said (in rather a blustering manner) that he merely asked the police constable if he could not speak to Mr Tyler, and that, on doing so, he was ordered away and c;iven in charge. " He had always thought a man could be allowed to speak to another mau in a civilized country;" and it was fortunate that they had not often to come to the Buller.

The Magistrate regretted that the prisoner had not taken the opportunity of making an apology, in consideration of which he would have allowed him to go, after his being detained in custody, as be had been, for a few hours. Instead of that he had spoken in a manner even worse than the manner in which he had acted on the first occasion, when he had put his hat on, and marched out of the court in a very improper way. He was always willing to overlook an inadvertance, but in the prisoner's case there was no excuse. He ordered him to be fined £3, or to be imprisoned for three days. The fine was paid. FOUL CHIMNEY. John Sheldon was charged with " that he did neglect to keep the chimney of the house occupied by him, so that it took fire." John Walker and Patrick Smyth were called bv the police to prove the fact of the chimney having been on fire. The defendant stated that ths chimney had been cleaned three weeks previously. There was a good fire on, and by a light box, containing some tissue paper, being thrown on it, an extra draught was caused, and the little soot there was in the chimney took fire. The flue was nine inches from the building, and could easily have been removed.

Tho Magistrate said lie had no doubt defendant could account satisfactorily for the way in which the fire occurred, but there must have been some soot to support a blaze, and the words of the Act were explicit—if a chimney caught fire from an accumulation of soot, it came within the Act. The defendant was fined 10s and costs. Citil Cases. Bailie and Humphrey v. Cunningham and Nicholson.—An action to recover the amount due on three dishonored acceptances on which £67 14s 6d had been paid. The three acceptances amounted to £193 14s 3d, and the balance left was £125 19s 9d, which amount had been reduced to £IOO, to bring it within the jurisdiction of the Court. Mr Tyler and Mr Pitt appeared for the plaintiffs. The defendants explained that, owing to all the legal

counsel in Westport being engaged, they were obliged to defend themselves, trusting to the guidance and correction of the Court.

J. H. Humphrey, one of the plaintiffs, examined by Mr Tyler, identified the acceptances. Examined by one of the defendants, J. Cunningham, he said: —l remember you explaining to our firm that you had been heavy losers in business, and found yourselves in difficulties. I went to Charleston, not on account of any arrangement, but on account of a bill of yours to Mr Mowat, of Anderson and Mowat, of Dunedin and Hokitika. I had correspondence with Mr Mowat on your affairs, by telegram. I did not enter into any compromise. Mr Mowat telegraphed to me that he would accept a composition of 7a in the pound. The 7s were not to be taken on my firm and Mr M'Farlane agreeing to do the same. I never signified my intention of taking the same composition in full. I may have agreed to return the dishonored acceptances if it were a general thing with the creditors. You paid us £ r o7 lis Gd, which is at the rate of 7s in the pound. lam aware that you asked for the dishonored acceptances. I said I hadn't them with me. I may have said I would return them as soon as the 7s were paid, but I do not remember having done so. I told you I would send you Anderson and Mowat's acceptances, but I do not remember saying that I would send my own. There were two amounts paid by bills. The first amount represents 5s in the pound, and the other 7s in the pound. There was no agreement that Audeson and Mowat would accept the amount if Mr M'Earlane and I would take the same amount.

Re-examined by Mr Tyler: The defendants were indebted to John Duff, to Gasquoine, and to Shaw and Co. of Hokitika. We agreed to accept 7s on the understanding that the others would be paid the same. The 7s we have been paid. We are now suing for the full amount. "We have every reason to believe that they paid other people 20s in the pound. When I went to Charleston, in consequence of the telegram I received Irom Mr Mowat, there were no other creditors present. I did not agree with any of the creditors to accept any composition in the pound. J. Cunningham, defendant, called by counsel for the plaintiffs: We have been carrying on business in Charleston for the last sixteen or seventeen months. A few months ago we represented that we had got into difficulties. Mr Humphrey had an interview with us, and ho agreed to accept a composition. The interview took place after the dishonored acceptances were due. I think there were no other creditors present. I made the same arrangement with the other creditors. I paid them all. I paid some of them more than 7s in the pound—a small amount to Shaw and Co., at the rate of 20s. I also paid Duff 20s, and Gasquoine 20s in the pound. They were all small amounts. We paid several small amounts at 20s in the pound. These wore only a few small accounts which we paid in full in consequence of an arrangement with the parties. We paid our Charleston creditors in full, but that was before the arrangement with the others was entered into. We did not pay Gasquoine since that arrangement. It was before the arrangement. It might have been a week before. Wo paid Mr MTarlanc, Hokitika, 7s in the pound, but no more. We have given him acceptances, but these are for goods received since. We have not promised to pay more than 7s in the pound. Duff did not refuse to take 7s. Ido not remember the amount of Duff's account. It was a trilling amount. It might have been £4O. 1 call that a trifling amount. Shaw's account, I think, was about £l9. At the time we made this arrangement, another party —Parsons and Co—had sent ussome goods, which we had just received. The goods were landed only a few days before the arrangement, and we had not got them in stock. We bad ordered the goods, but stored them at ourowh risk. We did not consider ourselves indebted to Parsons and Co., and did not include the goods in the list of stock, because we intended to return them. I do not think we told Mr Humphrey that we were indebted to Parsons and Co. We have since paid for these goods in full. Their value was about £4O. These were the only three amounts that I remember of having paid. I recollect, receiving a letter from you (Mr Tyler) about this aniount, on Saturday week. We have since sold out. Wc did so on Tuesday. We _ did not give instructions to the auctioneer before wc received the letter. The property was sold, and realised £9O. Wc have no other goods or chattels in Charleston or in this district. We did not collect all our book debts, and have not sold them to anyone. We sold off so suddenly for the benefit of our creditors. I do not think it was to protect ourselves from those claims.

This completed the plaintiffs' case. Thomas Bailie, called for the defendants, and examined by Cunningham: I remember you coming in January, and stating that you had lost heavily. Tou showed me a list of your assets at the time. I do not remember the amount. I cannot say that they showed 10s in the pound. I took very little notice of the document. I did not put credence in what you were telling us. I cannot say that the amount did not exceed 8s in the

pound. You had a list of your stock, and a list of your book-debts, a great many of which you put down as bad. Tou made some calculation, but I cannot say what it was. Ido not think you offered the estate to Mr M'Farlane or to me. Tou did make an offer. Tou made an offer of 5s in the pound, and M'Farlane and I agreed to take 5s if Mowat would do so, but I never intended 5s to be in full payment of our account. We had communication with Mr Mowat, but he did not leave the matter in our hands, tie telegraphed saying that he would not take less than 7s. Then you agreed to pay 7s. I believe we got an acceptance from you. The arrangement with Mr M'Farlane and me fell through. I do not think Mr Mowat authorised me to act in conjunction with Mr M'Farlane and myself. We got the acceptances, and sent them to Mr Mowat. You had us in your power at the time. I do not know what Anderson and Mowat understood. I know what we understood, and that was that we accepted 7s in part payment. I always intended to make you pay the balance if we could. Ido not remember of you offering us your estate. I do not remember telling you to keep the estate, and to realise on it, as you would turn it to better advantage. I did not agree to take 7s and allow you to keep the estate. By the Bench : I never intended to take part payment in full —not even if all the other creditors agreed to it — not if I could make them pay it. I may have said I would return them the acceptances on receiving the 7s, but I never intended to do it if 1 could help it. I was not present at the arrangement with Mr Humphrey. The arrangement for 5s fell through, and we had agreed only to take that amount if it was a general thing. At the time that these bills of ours were dishonored they were due other £6O, and this they promised to pay in full, which they have done. We were almost forced into an arrangement of some kind, to get that amount paid in full, but there never was an agreement made with Mr M'Farlane and me. If a proper deed of agreement had been drawn up, releasing them at ss, I expect I would have agreed to that. My impression all the time was, and now is, that they were able to pay 20s in the pound, and, in consequence of them paying 20s in the pound to many who were indebted to thein, we sued them.

William Nicholson, one of tlie defendants : Mr Humphrey told us that he had a telegram from Mr Mowat, and that he would accept 7s in the pound. We asked for his own dishonored acceptances. He said ho had not got them with him, but that lie would send them when we met the dividends. We first asked him for a written agreement, but he aaid that the return of the acceptances would be tantamount to an agreement. Tou (Cunningham) at first objected, in consequence of him not giving fresh acceptances, and Mr Humphrey said you were rather sharp —that if we had acted as sharply with our customers, we might not have got into difficulties, and that we must take his word for it. You wrote asking for a release, and there was no answer returned.

By the Bench : There were only three creditors who were mentioned, or to whom wc owed large amounts. \V r e had got goods from others, but did not acknowledge them as creditors. By Mr Tyler: We paid Dull' in full, in the same manner as Parsons and Co. The goods were in the store, but were not taken into stock. Wo paid Shaw because it was a trilling amount. These were the only three that I am aware of. We paid the small accounts at Charleston before we entered into any arrangement. They were trifling amounts, and our reason for paying them was that if it got abroad that we were paying so much in the pound our customers would demur to paying their full amounts, and Mr Bailie and Mr Macfarlane thought it better not to let it be known. The accounts were usually what are paid on a Monday morning. I do not remember anything of Guisquoine's account.

Mr Cunningham put in evidence Mr Mowat's acceptances, which contained a sentence as to their being subject to a deed of agreement with Messrs Bailie and Humphrey and others ; and, in addressing the Court, he said it would be seen that there was a distinct agreement entered into by the three principal creditors, one of whom had since enabled them to carry on. Mr Tyler, in addressing the Court on the evidence for the plaintiff, quoted several cases, but relied chiefly upon Reay v. Richardson, 2 C, M. and E 412 ; s.c. 1 L. J. Ex. 23G, and more esDOcially upon expressions of the Judge in the judgment given in that case. But even assuming that the agreement would stand, ho contended that if there was an agreement at all, there had been such representations made and fraudulent preference given, as vitiated any agreement. The Magistrate thought there could not be much doubt either as to the law or the merits of the case. The action was upon dishonored acceptances, and the defendants pleaded that they had entered into a subsequent arrangement for a composition. The answer was that the other creditors were not included, and that some of them had since been paid 20s in the pound. The case which had been relied upon by the counsel for the defence seemed to be very much in point. If that were taken alone, the defence would be absolutely bad, simply because the other creditors

were not included. The case quoted was somewhat an old one, and might now be subject to some modification, but it seemed to him to be unnecessary to go even so far as that case to show that the defence was bad, because they had it in evidence that several creditors had been paid 20s in the pound, three of them since the arrangement spoken of. It appeared probable that some other sums had also been paid. That was quite sufficient to upset the defence, because, if any agreement had beenenteredinto', it must necessarily have implied that the defendants should not pay more than 7s. But the evidence showed clearly that the defendants did pay more, and, if there was any agreement, it must have been obtained under, he would not say fraud, but misrepresentation as to the ability of the defendants. There the defence failed, and the plaintiffs were entitled to the amount claimed and costs. Mr Tyler applied for immediate execution. The Magistrate thought there was sufficient to justify the application being granted, unless the defendants could show anything to the contrary. There was one point to which he thought it right to refer. He thought the action should have been brought before the Court in Charleston. There was no actual legal necessity for this being done, but the contract had been made in Charleston, and the defendants resided there. It was true that it was one district. Still, in such a case, he thought they should be considered separate districts. It was the usual rule adopted, and the rule which he always intended to adopt.