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DISTRICT COURT., Ashburton Guardian, Volume 1, Issue 62, 17 February 1880
Monday, Feb. IG. (Before His Honor Judge Ward.) PATTON V. LAKE AND BEAKD. This was an action to recover L 142 2s. lid., amount due on a sub-contract on the Rakaia and Alford Forest Railway construction. Mr. Thomas, for defendant, applied for an adjournment, on the ground that an important witness for the defence could not be found, but there was reason to believe that he could be produced if the case were adjourned till next Court day. Mr. Purnell said ample notice had been given to defendants, and he would at any rate apply for plaintiff’s evidence to be taken, as there were other claims against the defendants, and his client’s claim might be prejudiced. His Honor questioned ail the witnesses in the case who were present in court, and allowed 10s. expenses for one witness; the other three wore not allowed anything, being in plaintiff’s employ, whoso solicitor had ample notice of the wish of the defendants to postpone the case.
HUGO FKIEDLANDER V. CAMERON.
Mr. Purnell for plaintiff; Mr. Thomas for defendant.
Claim L7O, value of i house illegally removed from land bjßlefcndant. The house had been purchased by Friedlander and sold again by him to Sir. Corsbie, on the understanding it was to be delivered at Alford Forest, but was reipoved by defendant during the night. ' Frederick Hyde, sworn—About four years ago I bought some land from Mr. Cameron at L 5 per acre, to pay interest at 10 per cent, until the purchase money was paid. My last settlement regarding payment of cash for interest was about April, 1878, and the next year’s interest I worked out. I put up a house on the land. It was built on stone piles. I left the place on June 23, 1870. Friedlander Bros, soldjme up,and seized the house and sold it. Mr. Hugo Friedlander bought it. When the house was sold it was standing on two heavy blocks of timber. I moved the . house from its original site, as there was too much land in the block for me. By Mr. Thomas —There was no agreement between Cameron and myself as to the purchase of the land. I was to pay him the purchase money when I could. Did not pay any of it, but paid the interest on it. I have fenced some' land there. There were no wooden piles. Cameron knew I was going to move the house to the fifteen acre block, but he would have preferred it put on the larger block. The house was built for myself and family to live in. There was no other building on the land. Had a conversation with Cameron when I got the summons, and asked him if he would make me an allowance for the house, and he said he would make none ; and he said if I shifted it I would do so at my own risk. I have never given the place up. The house was sold for Ll 3 or Ll 4. It cost me about LGO orL7O. It had two rooms, and was a weatherboard cottage 12 x 24, roofed with iron. When I left I locked the door and nailed the gate. I have never given Mr. Cameron an account of what he owes me for working on the place. It was understood that I was to work the interest out. Re-examined by Mr. Purnell Mr. Cameron never objected to me removing the house. , By the Court —Retiring was said about fencing the land. George Oates—l acted as bailiff in a case of a seizure of Hyde’s house. I seized horses, drays, and a house. By his Honor—l would seize the Town Hall if I had an execution against the owners of it. By Mr. Parnell—l think the house was on a sledge. I don’t know if the house was advertised for sale. I sold it on the ground at the date of the expiration of the warrant. Mr. Hugo Friedlander bought it, but I don’t know at what price. By Mr. Thomas—This was the only instance in which I have acted as an auctioneer. I was acting - bailiff at the time. I was in possession for Friedlander Brothers. There were about a dozen at the sale. Mr. Friedlander bought most of the things. There were other bidders, including a lady, not a <!widder.” She wasa married woman. The amount of the warrant was about LOO, and the sale did not realize that. I furnished account sales of the total aroint realised, but not of the not furnish Hyde with a sold. I only took the original warrant with me and no copy. After the sale I left the goods on the ground. There were three horses and two cows, a lot of harness, Ac. They were put up in separate lots, and Mr. Friedlander bought everything, and gave a cheque to me for the goods. I have no book to show the entries of the sale. I got the cheque from Mr. Hurrell. His Honor—This is an original way of transacting business. By Mr. Thomas—l took the cheque to the bank. I don’t know what 1 did with it, whether I left it at the bank or took it back to Mr. Hurrell. Hugo Friedlander, sworn-—I am plaintiff in this action. I was present at the sale of Hyde’s goods on June 6th or 7th. The sale was advertised. I bought several tilings, among others the house in question. I ]:aid Cates a cheque for it. I sold it again. The house was on two pieces of timber, a kind of sledge ; the chimney was on the outside leaning against the house. I sold the house to Mr. Corsbie for L 27 10s. I for it. I had to deliver it to him on Ihe Alford Forest road. He paid me for it at the time. I was not present when it was removed. I heard the house was removed, and had to give Mr. Corsbie the cheque back. By Mr. Thomas—l knew Cameron had a claim on the house before I shifted it. I produce a receipt for the payment of the house. Other persons bought goods at the sale besides myself, but not amounting to more than L 5. I gave a cheque to Cates for the goods, and the Clerk of the Court sent our firm a cheque for the proceeds of the sale. I have dealt entirely with this house myself, not as a member of the firm. The auction was an open one. Hyde’s place was about 12 miles from town. Rudolph Friedlander—l recollect going to Hyde’s land to remove a house, and took Compton with me. It was then fastened down to wooden piles. Skids were lying alongside of the house. There were about IS piles. We removed it to the public road. By Mr. Thomas—The house was spiked down to the piles. Two of Cameron’s ploughmen were there. We put skids under the house, and moved it. We took down part of the fence to get the house on to the road. Wo left it there that night. I told Mr. Corsbie where the house was, and he said he would take it away next morning. The bricks of the chimney did not come inside the house. I don’t know how the weather was kept out. Robert Burns and Wm. Bennett were called, but did not appear. L. E. Corsbie—l know the house in question. I saw it previous to seizure. Hyde owed mo money, and I went to see if the house could bo shifted, and found it was on two skids. I saw the house the day after it was seized. The chimney was not attached to the house. By Mr. Thomas—There was no attachment between the house and chimney, the bricks and mortar were close up to the weather hoards. I bought the house from Mr. Friedlander for Ll 7 10a. He was to put the house on the road, and give me delivery on the road. I saw Rudolf Friedlander the evening the house was shifted, and told him to send me up some one to give delivery. In the morning 1 sent men to shift the house, and they were told the house had been taken away again during the night. G. Compton, builder, sworn— The chimney came in flush with the studs, and inside the weather-boards. I had to-jjAy nails from the studs to remove the horSp, A few bricks were removed to detaclrWie house from the chimney, which was built close up to the house. A few loose bricks which were resting on the gable shifted. For the defence, Mr. Thomas argued that as the chimney being a fixture to tlid"" soil, and the house a fixture to the chimney, the house was necessarily a fixture, and therefore not removable. Mr. Purnell argued that if the house could be moved without damaging the chimney, it was removable by law. George Compton, recalled—Explained that flushings should have been provided, but were noi, and the brick work was built in close to the weatherboarding. When we lifted the building to remove it none of the brick work except a few loose bricks were removed. His Honor ruled that he could not consider the fixture point in the case. Had there been no chimney there would have been no dispute.
Mr. Thomas said if such was to be tin ruling he could only say that prnbabl] half the smell buildings in Canterbury 01 leasehold land removable, and as tin buildings erected/,n leasehold land wer< usually looked upon as a part of the land lord’s security there would be great con fusW BmPlonor said he know of no paralle case m English law. The defendant undoubtedly would have an action foi damaging the fences. John Cameron, sworn—l was the freeholder of the land in Hyde’s possession. He could not pay anything down, aiul J agreed that he should build a bouse Instead of paying a deposit. He did so, and the house remained on the ground fox about 3 years. It was built on stone piles. Hyde was not able to bold all the land, and I gave him permission to shift the house on to a 15 acre section. 1 did not give him permission to alter the foundations of the building. Before Friedlander Bros, seized, Hyde came tc me and asked if I would allow anything for the house. If not, he would go and take the house with him. I " Id him not to touch the house. I never a notice that the house would bS»ld. When the house was removed my men were occupying the house, and ploughing the land. Friedlander wanted me to buy the house from him. It told him it was my own. By Mr. Parnell—Hyde last paid me interest in July, 1878. I owe him money for work. I subsequently let tlxe house to a man named Jenkins for Is. per w r eek. I nailed the house to piles after the seizure. A. Munro deponed—l fixed wooden piles under the building. When I wont to it it had a double plate under it, resting on the ground. The house could not be removed without disturbing the soil. The plates were sunk in the ground about four indies. We could not shift the building without displacing the bricks in the chimney-. By Mr. Purnell—l had instructions from Mr. Cameron to fix the piles and fasten the plates to them. His Honor said the point he took m the case was that as the house could not be moved without disturbing the chimney, it must be looked upon as a fixture. Philip Tisch gave evidence that the house could not be moved without damage to chimney. When the house was removed half the arch fell down and some of the top. Counsel addressed the Court. Judgment was given for defendant with costs, L2 19s. Gd. JOSHUA TUCKER V. C. C. HURRELL. Claim LSO. Mr. Branson for plaintiff. Mr. O’Reilly for defendant. Mr. O’Reilly took preliminary objections. (Ist.) The notice was to the defendant as Clerk of the District Court for something done by him as Clerk of the R.M. Court, and quoted authorities. His honor over-ruled the objection. (2nd.) The particulars of the claim did not agree with the notice of action. The money was paid out of Court on the 12th December, and the plaintiff’s demand was not made till the 21th December. Ford’s declaration of insolvency was filed on the 12th, and the money was paid out of Court on the same day. His Honor ruled that the R.M. couldl3.pt of his own dictum allow money to bo of Court in defiance of law. Under -th e - jjCtli section, moneys held by the bailiff w once became the property of the trustee in the bankrupt’s estate. , Mr.*Branson said that the execution, by Orr and Co. i'v. Ford was taken out three and a half hours after the declaration of bankruptcy by Ford was filed. Mr. Branson opened the case and argued that the Magistrate had no right to sign an order for the payment of this money, except in open Court; the order for the payment of the money having been given by the R.M. otherwise. Defendant was called, as Clerk of the Court, to produce all papers relating to the bankrupty. B. G. Crisp, solicitor, acting for William Ford, recollected Ford filing his schedule. Witness handed in the declaration to Mr. Hurrell, and told him he would be responsible to the next trustee. He said “all right, old man.” By Mr. O’Reilly—l did not know there was an action against Ford for fraud and deceit. Joshua TucHjfc plaintiff, deponed —I made application to defendant for the LSO for'which I'am now suing. He said he had not got the money. He said I was too late. I served defendant with the notice of action (produced). I did not receive the money. By Mr. O’Reilly—Before I was elected trustee 1 was spoken to on the subject. There was nothing in the estate except this LSO, which I hoped to get. The Clerk here produced the record of aU the R. M. Court proceedings, Ford v. Bluett. Charles Branson, bailiff of the R.M. Court, deponed—On the 12th December, 1879. I received moneys upon an execution issued by Orr and Co. against Ford. I received the moneys by virtue of a special order and warrant. I received the warrant on the afternoon of the 12th December. It .was for signature ; I took it to the Magistrate’s private house, where he signed it. It was 3 o’clock. I can’t slate exactly. 1 made out the warrant on the 12th December. I took nothing but the warrant for the Magistrate’s signature. The Magistrate remained at his house. I went straight to the office immediately the warrant was signed. The Magistrate could not have got to the Court House before me without my seeing him. The document produced is one under which I got possession of the moneys. I had a warrant in execution against Ford. It was issued two or three days before. The assistant bailiff had this warrant. By Mr. O’Reilly—l was not reminded that I should levy Montgomery’s warrant first. I mentioned the fact that there was another warrant. J. E.. H. Harris, solicitor, deponed—l recollect Mr. O’Reilly and Mr. John Orr coming to the Court. Mr. O’Reilly asked whether the money in Ford v. Bluett had been paid into Court. Mr. Hurrell said “Yes.” Mr. O’Reilly or Mr. Onsaid we want it, and Mr. Hurrell asked whether they had a warrant. Mr. O’Reilly said “ No,” but tlxey would prepare one. Mr. Hurrell said “ You’ll have to get it signed by the Magistrate.” They went out and Mr. O’Reilly, Mr. Orr, and Mr. Guinness came back together in the course of five minutes, and Mr. Guinness signed the document which Mr. O'Reilly made out. Mr. Guinness did not sign any other document. It was 3.40 by my watch when Mr. Guinness came in. I saw Mr. C. Branson coming over to the Court about five, and Mr. Guinness said “ Oh, it’s all right now, Mr. Branson’s coming.” Just afterwards Mr. Hurrell said “ Oh, Ford and I volunteered the advice tifefc' it was not in accordance with the Act pay the money over after the declaration had been filed. By Mr. Branson—l don’t think the document signed by Mr. Guinness was a minted one. Mr. O’Reilly drew out a for Mr. Orr to sign. The one produced is the same. The document signed by Mr. Guinness had no stamp on it. By Mr. O’Reilly—l recollect all the circumstances which took place that day, as fhe proceedings somewhat opened my eyes, and I expected to learn a wrinkle. My mind was not in any way disordered that day. 0. B. M. Branson —The stamps were on the document when I took it from the Court. Mr. O’Reilly, for the defence, called Frank Guinness, Resident Magistrate— I recollect making the order produced. The signature is in my handwriting, and was made in court. I can’t say if it was
made in open court or in the office attached to the court. I have signed warrants at my house. His Honor—There is no harm in that, Mr. Guinness. Witness continued I cannot swear where I signed this one. By His Honor—When I signed this warrant I did not inquire if any other executions were out against Ford. His Honor—lt would be as well in future if you satisfied yourself ou such matters. By Mr. Branson I recollect Mr. O’Reilly and Mr. Orr coming to my house, and I think 1 wont witli them to the court. I think some transaction in connection with this case took place in the private room in the court. The doors of the court were not thrown open. I did not know that a warrant of execution had issued. I cannot contradict Mr. C. Bran son’s statement. I don’t think Mr. Harrell told me of Ford’s declaration till next day. 0. C. Hurrell, sworn—l am Clerk of the District Court and the R.M. Court. On December i2th last the order in question was signed—in the office I think. The money was seized by the bailin' under warrant, and he gave me a receipt in the usual way. I don’t recollect what time in the day it was paid By Mr. Branson—Mr. Guinness did not hold an open Court that afternoon. John Orr, merchant, said—On Dec. 12 I applied to the R.M. for an order of immediate execution against Ford. It was then about 2p. m. The magistrate came over te the Court afterwards, and I applied for a warrant. Mr, O’Reilly submitted that the money having been in possession of the bailiff, he was compelled to hand the money over to the first warrant issued against it, and the Clerk of the Court could not hold it. His Honor pointed out that the contention of Mr. O’Reidy was absurd, ns, if such was the law, the Magistrate could unde.i clause 131 order the Clex-k to pay money over, and then fine him LlO for doing it illegally. Mr. O’Reilly contended that although the wari-ant of execution issued after the filing of the declaration, there was no stay of execution until the “Gazette” notice appeared. That filing a declaration, filing a petition, and filing a deed of arrangement had the same effect. Proceedings ixxight by stayed on application to the Court. Section 4of the Debtor and Creditors Amendment Act, 1879, which was ex post facto as to this action, showed this contention to be right. His Honor said that this was no doubt correct, but section 4 sf the Amendment Act seemed to him meaningless. However, he was with Mr. O’Roiily as to this “ Gazette ” notice. Mr. O’Reilly then contended that execution having issued before the “Gazette” notice appeared, and tlxo Magistrate having ordered the money to bo paid to the bailiff pursuant to the order by the defendant as Clerk of the R.M. Court, ho could not bo liable in this action. He was a ministerial officer. (Dews v. E-yley, 20 L.J., C.P., 2G4). He could not review the work of the Magistrate. If he seized the money he would be acting with the powers of the Supremo Court and the District Court, as to seize property he would require leave of the District Court, section 57. He paid the money to the bailiff and lie was not responsible afterwards, as the bailiff never paid the money into Court. As long as the Magistrate’s order and the wax-rant existed they were axi answer to this action. This Court could not set aside the order or warrant, nor could the Supreme Court, except in the order provided by the R.M. Act. The Clerk had acted bona fide, and could not lie expected to dispute the order of the Magistrate and arrogate to himself judicial power. Mr. Branson, for the plaintiff, held the Clei’k was aware of all the facts of the case, as they occurred in the Courthouse, and that he was cleax-ly liable for the sum illegally paid. And the presumption was that Mr. Hurrell was aware of the declaration of insolvency when the warrant was made out. He held a triplicate position —first, as Clerk of the R.M. Court, second, as Clerk of the District Court, and third, as trustee in bankruptcy, and he chose to accept which would suit him best. C. B. M. Bx-aixson was here re-called hy the Judge, and said he was ordered by the Clerk of the Court to make out the warrant. Mr. Hurrell, re-called, said he had no recollection of having given Mr. C. Branson orders to make the warrant out. Judgment was deferred till this morning, and the Court adjourned.
DISTRICT COURT., Ashburton Guardian, Volume 1, Issue 62, 17 February 1880
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