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THE ALLEGED FORCIBLE ENTRY CASE., Ashburton Guardian, Volume VII, Issue 2079, 5 March 1889
THE ALLEGED FORCIBLE ENTRY CASE.
, ASHBURTON— MONDAY. j (Before Mr 0. A. Wray R.M ) j Following ia tbe conclusion of our report of the prooeedluga m thia o_se : — Mr Makeig's o?oss-ex4mluation con- \ tlnued : — Witness was at tbe offioa overy j day, and wis In and out of the storo. On . November 1, when their lease should h^ve , terminated, there was a large quantity of wool and grain belonging to Friedlander ' Bros. In the store. — Witness, through his ' boy, took tallies of the grain and wool ' He kept on taking the tallies for about a ' month. He did not have the tally book ; I there was no tally book,, on this oooaolon tho boy kept the tally on a rough sheet of ' paper. Witness wos only keeping a quiet memo, as he thought he would have t<> ' oharge so cnaoh a bale. Witness did not ' enter the tally from the boy's rough notes into any papi-r or book. The boy never ' gave witness his rongh note 3. Witness aaked the boy each day how many bales oame In that day — Mr Fisher did not sao tha bearing of all this ovldenoe on the case. — The Magistrate said that a graat deil of uvldenoj had been taken, which he did not Eec tbe use of. — Mr Joynt maintained tint it had the strongest possible bearing on tbe oase, which would bo plainly evident before be had finished. — When tho boy told blm the number of bales that'oame ln witness made no entries Witness did uot take any tally of the quantity of wool and grain that was ln the store on Njvambar Ist. He did not at any time after November Ist render any acoount to Frlediander Bro*. for b tor Age. Witness got £50 from F ledlander Bros, on February 7th for another qaarter's rent, owing by tht-m to witness, according to the agreement. On February 7ih witness went with Hugo Friedlander to the bank, and arranged there tbat witness's cheque should ba passed to the credit of tha Loaa and Mercantile Company for the rent he owed the Oompiny, aud that Friedlander's cheque should be passed to his oredit to cover that given by witness to the Company. In December witness told the Friedlanders that he wanted to sell his interest m the store to the Farmers' Co-operative Association, and that he expeoted he would get something considerable for it If he oould sell it. Told Hugo that his time of occupancy was up ; he said that it wasn't aud to witness's astonishment produced the altered agreement. Witness took uo steps to turn htmout, exoept on February 9th Wltnesß did nothing to turn the Friedlanders out on tbe 9th of February, but the Company did. He handed it over to the Oompiny, and they took up the whole ooocern. On February 9ch witness went to Hugo about the store. Told him that Mr Oooke had told witness that unless he gave up tho store he (Oooke) might put witness through the Bankruptcy (hurt. Witness proceeded to say he did not want to be put through the Court as it would ruin his business during tha ooming . grain season. Told Hugo that he was going to surrender his lease to the Company. Hugo said that his firm would not give up the store. Witness surrendered tbe lease on February 9th, Friedlander Bros, had at tbat time seven or eight ttnusapd saoks of grain, and a few lots of wool m the store. From the beginning of August till the time when witness gave up the store Friedlanders always used it for storage of grain and wool. At the time witness gave up the store he told Seoretan that Friedlanders had a lease of the store wh : ch they would not surrender, and that it was their grain whioh was m the store. Witness tjld Mr Oooke In Ohristchuroh that he h.d leased the store to Friedlander Bron. Witness told Mr Oooke all tha oiroumstanoes, and told him they would not surrender it, Never saw Oooke lv the store ; Saoretan cama there occasionally. _ Witness was ln tbe store on February 11. He" saw" HOgO Frtcdionclo. there. Did not think Hugo told witness tbat he had aoted Improperly In giving up possession during tha Friedlander! tenacoy. Witness told Hago he would have to fight it out with Mr Oooke, and that witness had told Oooke all about the affair. Witness knew all along there was a key for the large door ; it was kept hanging In the offioe. Witness only used the latoh key. Did not remember Friedlanders when they oame m asking for the big key ; witness gave them a latoh key. Did not tell Rudolph Fri. dlander that there never i was a key for tbe large look. At the time of tbe agreement being signed, Hugo promised wltneaa that he would p*y him the rent on tbe same dates tba f . witness's rent was doe to the Company; When witness was negotiating with the Cooperative Association, end Friedlanders refused to give up possession, he and the representative of the Qj-operat'.ve A aoolatlou consulted a lawyer, Mr Crisp, who went to Friedlanders' to see the agreement. There was no arrangement made about witness opening and closing she store for Friedlander Bros , but he had always done it for them. — By Mr Wilding: The whole of the rent duo by Friedlanders was according to the agreement payable lo one sum. The first quarter's rent was paid m one sum. When the agreement was signed witness was willing to let to them for either 6 months or 3 mouths, bat not longer than the former time. Finally witness agreed that Friedlanders should have the store for three months, whioh would make tho term expire In November, 18§3. Witness told Hugo to make the alteration, and he signed the agreement uade/stnndlng the alteration had been made. Witness told Mr Oooki, also Mr Seoretan when he believed Friedlanders' term expired. He told them the olrcumstanoas attending the alteration of data ln the document. Timothy Kelly, storeman, stated that on Saturday, Feb. 9th, he was put In oharge of tbe New Zealand Loan and Mercantile Agenoy Company's Store at Ashburton by Mr Seoretan for the Company. Witness went into the store about eleven o'clock on the 9th. Makelg and Seoretan were tfyere a t the time. Saw none of the Friedlanders during the morning. When he wont to dinner at twelve he locked the store with the large key. He put the key m his pooket. Tn the afternoon witness saw Rudolph Friedlander. He did not ask witness why ho ' was there. Ia the evening witness looked tht door with the large key. Witness had been employed about the store for five years. He only knew of one key to the big look. On Monday, Feb. 11th, Huso Friedlander oame to tbe store about half-past nioe In the morning. He ssked witness what be was doing there. Witness * replied that he was m oharge for the : Ootopany. He asked witness who put < hint In oharge, and witness replied that ' Mi Seoretan did so. Hugo thon said he ' would hava to pat witness oot, and asked j hluo If bo would go out. Witneeg refused tv go out, saying he was ln oharge for the * Company, and meant to stay. Witness * also said tbat he oould not go without ' Instructions from the Company or Secretan. Hugo then said he wonld have I to put wltneaa oot by foroe ; that he t woild get somebody to do it. Witness < believed Makeig was about the offioe at t this time. Hugo went away, and oame < baok about twenty minutes or half au honr afterwards accompanied, by five men I —Townshend, Morgan, Halsall. Stlgley, t and Maudsley. Hogp again asked witness 1 to go oot, and witness again refuted. \ Hugo said In that ease he would have to t get tbe men to turn wltnets out.! Witness « aald it was a mean way to get possession 1 of the stftre, and told Hugo that If he had • any right Ahere was a Court across c the, road, and ii proper and legal way to t get poßsesalon wlth« a t taking the law s Into hid own bands m th»t way. Witness t addfd that there were policemen and o ballJffj to do eaoh woik. Hugo told the r ins) to catch bold of wltupsi by tbe hand ' t
md lead him out, and aaked witness tc mflfei himself to be so led out, saying ihat suoh was sufficient for witness to Bay -a was put out by force. Witness did aot consent, saying that he was put In jharga and meant to retain oharge. Hugo ;old the men two or three tlmas to put witness cut before they attempted to 3»toh hold of blm. Stlgley aod Hawaii jaught bold of wltneaa, one on eaoh aide 3ome of the men oaught him from behind, inf. he did not know who thiy wero. !Thay draegod him a ytird or two. Witness straggled to gat clear, and maniged to break away. Told them not tc I'tovnpt to put a hand on witness again or they would find things very different. Mr Purnell waa not there then, but witness beard Hugo sending somaone for aim. Subsequently Purnell arrived and o»me into the store. Hugo said that witness wouM not go ont, and Purnell replied, •• Oh, put him out." Purnell advised witness to allow himself to be led out, a» that would be suffioient t show he had been pat oat by foroa. Witness declined, and told Purnell there were means cf putting him out without taking the lsw Into the'r own hands. The men then made a second attempt to pat witness out, but did not oatoh him. He did not know by whose dlrcotion they acted this time i o the best oi witness's recollection Parnell urged twice that he should be put out. After tho seoond attempt heard Hugo give the men instructions to oloce the store doors, Trie men closed the doors. Witness went into the offioa aud found J. L 4 Brown taking tbe latoh rff the offioe door. Witness believed Makelg was la the Inner office at this time Witness asked the oarpenter what he was dolug, and Brown said he was taking the look off. Hugo Friedlander was not then m the office, but witness believed he mu9t have heard witness tell Brown to clear out and leave the look alone. While witness was talking to Brown, Friedlander, Purnell, and the other men oame Into the offioe. Witness heard someone Bay, "Put him out," and Immediately afterwards witness was pushed out of the offioe on to the footpath. He was pushed out by force and against his will. Witness oould not say who pushed him out, but it was some of the party who were aoting against him m the store. Witness did not try to get baok again beoause he thought he would have no show against suoh aorowd. Direotly witness picked himself up be looked round aud saw Parnell, Friedlander, Halsall and Townshend olose to the door. AH the doors of the store open from the inside, except the offioe door. When witness went away on the Saturday he looked all the doors, looking the frontons with the big key. JNo one oould have got Into the store without witness's big key, or a duplicate.— -By Mr Joynt: When witness went into the store on the Saturday there were a number of saoks of oorn, somesaoksofs.lt, some wool, and oom j tools belonging to the Company. Secretin told witness that he thought tbe grain and wool belonged to Friedlander Bros. There were a few thousand saoks of grain. Witness tried to take a tally on tbe Saturday, but oould not do so on acoount of the stacks being irregular. If Rudolph Friedlander on the Saturday afternoon had asked witness why he was there, he would have told him that he was put there by the Company ; he, witness, thought he knew It. When witness was storeman for Makelg he tallied everything tbat oame In and went out, and put the tallies In the store book. Witness believed Makelg also had a book. Makelg had acoess to the store book. The whole of the occurrence that morning 'coupled about three-quarters of an hour. Purnell might have aald *■ you have done your duty to the Company by trying to keep possession, and it Is no use making any disturbance. " Witness never Baid before a hand was laid on him, (> Well give me my coat and I'll go." After ha bad been poshed out he asked for his coat, ~-rblob--„. B U. __i__. Witness -hadr stilt possession of tho large key. Ha had never tried to get into the stole since. He would not swear that be had not tried tbe key m the look since • he did not remember. ! Samuel Boyle, a youth ln the employ of Mr Makeig when m oooupation of the store, said that on Monday, February 11, he was at the store. Ha went to help M*kelg to move hla books. Remembered Hago Friedlander ooming to the store about half.paßt nine. Witness rooounted the conversation that took plaoe and deaoribed what he saw of the subsequent scrimmage, his evidenoe being oorrobora- ! tive of that previously given. — By Mr Joynt : Witness aoted as storeman for Makeig for about six months. Witness's duties consisted of opening the store In the morning and closing It m the evening He also had to take notes of what oame In and went out. Took tbe notes on slips of paper, told Makelg about them, and then sometimes tore them up. Did not know If Makelg entered up these tallies In aoy book ; never saw him enter them when witness told him of them. This was the oase for the proseoutlon. Mr Joynt addressed the Benoh, submitting that the oase should be dismissed. He submitted that the lease held by Friedlander Bros, was perfectly good. No matter how strong the clause In regard to underleasing might have beeu ln the lease from the Company to Makelg, if the laUer leased to Friedlander Bros., the mere fact of the Company walking m would not determine the lease, they would bave to go through the proper procedure to rendoc the lease void. Bat the olause was qualified, It set forth that a sub-lease was not to be made without the consent of the Company, but It was stated that were the sub-tenanta responsible and respeotable persons this consent would not be withheld. Makelg asked the oonsent of the Company to a sub-lease to Friedlanders ; tha Company refused, a thing they had no pawer to do, aooordlng to the clause on whioh they withheld their consent. Bfakelg had accordingly a perfeqt right to give the sub-lesee, the Company themselves having broken through the olau»e. As to what had been said about the lease terminating m .November last, he would ask if any sensible man would believe that the Friedlanders would oontraot to pay rent to that date when they had previously paid for storage to the following February. He maintained that it was evident the agreement waa on the face of It porreot, ?_?*i b . at _.l* V* \° November, 1&89, that the Friedlanders' had contracted to lease the store. It was nonsense to argue that the mere faot of the Company putting Kelly m charge was an effectual transfer of the rights of possession from Friedlander Bros, to the Company. He maintained that Friedlanders' bad a right to occupy till November next, or at the very loasb it would be necessary under the Property Laws Consolidation Aot of 1888 to give a month's notice of termination of the lease. If the Company felt aggrieved their remedy lay m a olvll aotlon. MrFsher said that Mr Joynt asked the Court to affirm Friedlander Bros, ln » possession gamed by a breaoh of the Jrlralnal law. He proppeded to quote )ases In support of the view of the prosemtlon. The Magistrate said it was quite olear hat the oase was due to a straggle beween the Mercantile Company and Fried- ' ander Bros, aa to who should gain possession of the store. It seemed to him ' hat it would have' been b^ter if the ■ tase had been brought as a civil aotlon. ' Phe question for him to determine was vhether a prima facto oase of forolble I mtry had been made out, and whether * ] here had been that amount of vlolenee J ] ihown that would justify him m commit- 1 ' Ing tbe aocused for trial on a criminal | ' iharge. He was of oplnioß this had ' i lot beenehown. He had looked through _ hoQ.i6soarefqlly,and be was pf opinion
— " i " 1 ' », "■ 1 "- ,mi - ■ ■'■'■■- a oase had not been mad. out. The oharge was dismissed. The oharge of detainer was withdrawn and the Court rose.
THE ALLEGED FORCIBLE ENTRY CASE., Ashburton Guardian, Volume VII, Issue 2079, 5 March 1889
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