RESIDENT MAGISTRATE'S COURT.

Grey River Argus, Volume XXIII, Issue 3844, 21 December 1880, Page 2

RESIDENT MAGISTRATE'S COURT.

Monday, 20th December, (Before H. A. Stratford, Esq., R.M.) M'LEAN V. WILLCOCK.S, IN RE HARRISON. This wa3 an interpleader summons in which Mra Harrison, the landlady of the Melbourne Hotel sued that the bailiff in the case of M'Lean v. Willcocks, in which the former claimed the sum of LSO 10a 6d for goods supplied to Will-

cocks, should be instructed to withdraw, i It was also urged that the Bank of New 1 Zealand joined issue with Mrs Harrison i in the interpleader. t Mr Perkins apbeared for Mra Harmon, 1 and Mr Warner appeared for the judge- { ment creditor, Mr M'Lean. ' ? I c Perkins called : — ( William Bishop Evans — Was bailiff of the Court. By virtue of a warrant of ' distress he seized certain goods in the j Melbourne Hotel, at tho instance of ' Duncan M'Lean v. George Willcocks. i [Warrant produced.] Seized the gooda ' on Saturday, aboi t half past 11 o'clock in the forenoon. Am in possession still. When he seized them the goods were claimed by Mrs Harrison, a3 having been purchased from the Bank of New Zealand. She told him so. Mrs Harrison was in possession. Mr Willcocks was not on the premises when he seized. On Saturday morning previous to the seizure he saw a bill of sale. It was about half past Bor a quarter to 9. The bill of sale shown to him was the same as now in Court. Saw another bill of sale. It was the agreement of sale with Mrs Harrison. Was then informed that Mrs Harrison had hona fide purchased the property. Mrs Harrison was selling drink. By Mr Warner— Knew that George Henry Willcocks was in possession previously. Saw no advertisement in the Argus stating that he had left the house. Saw Willcocks in the house on Saturday evening. Did not see him there in the afternoon. He informed witness between 8 and 9 o'clock in the evening that the Bank had turned him out. Re-examined ~ Was of opiniou that Willcocks only came in in the evening out of curiosity— not as the owner of the house. Mr Warner admitted the execution of the bill of sale, the filing of the same, but not its validity. Bernard Murray Lietchfield — Was manager of the Bank of New Zealand, Greymouth. Knew George Henry Willcocks, (late of the Melbourne H0.e1.) Remembered his purchasing it from F. and J. Hamilton. The bank advanced LBOO. The money was to be repaid, LIOO cash, for which he took a bank draft, and the balance by half-yearly instalments. Produced the cheque given by Willcocks on the purchase. The bank cashed the cheque for LIOO. The other L7OO was secured by bill of sale. Willcocks was also to pay the ground rent of LSO due on the property. The bill of sale was the bank's bill of sale and mortgage. Last Saturday week ho told Willcocks something mu3t be done in regard to the payment of the ground rent. With segard to the ground rent being unpaid the landlord's solicitor, Mr Perkins, threatened to distrain. Saiv Willcocks and asked him to pay the rent and ho said he could not. WiJlcocks also told him that M'Lean had summoned him for LSO. Said he could not pay it, and that M'Lean must take possession. Witness then told him on Wednesday last that he must take possession under the bill of sale. Willcocks then handed him the keys, and promised ' to transfer the license on next day, Thursday. Gave the transfer of the license on Thursday afternoon 16th. Witness put a bailiff, Mr Russell, in possession on Thursday afternoon. On Friday witness sold to Mrs Harrison. (Sale vote proi duccd.) The sale to Mra Harrison was a hoiia fide one. She was put in possession on Friday afternoon. Willcocks finally left on Thursday. He told witness that he had removed hia things. Mrs Harrison was in undisturbed possession on Saturday morning. 1 ' By Mr Warner— Signed the bill of sale. ', Was appointed manager of the bank, but had no authority to show. From his appointment he had power to sign. He had no other written or verbal authority. ■ Mra Harrison held under the sale note, i Tho bill of sale and the cheque bore date 6th November. Could not tell which was signed by first. The cheque w<is presented first. Should think the bill of • sale was prepared before the cheque was presented. Had not made any advances I to Willcocks before the presentation of the cheque. Hamilton presented the cheque, and it was debited to Hamilton's credit. Could not say whether it was presented on the 6th, or following day. The amount of tho cheque was for LBOO, „ to be repaid by a cheque for LIOO, and , remainder by monthly instalments. There was no other security except the 1 bill of sale. No firm in Christchurch had • guaranteed advances to Willcock?, or he should have known it. Wa3 certain that it; was so or he would have known it. Did not see the bill of sale, Was not present 1 when the assignment was made from i Hamilton to Willcock3. Told Hamilton i that on the comp^tion of the necessary security the cheque would be paid. Told him that as soon as the property wa3 properly transferred the cheque would bo all i riu;ht. Till the cheque was signed, the bill of sale was valueless. Mr Perkins told witness that if the ground rent was not paid he should distrain. Mr Perkins was also the bank' 3 solicitor. Willcocks handed him the keys on the 15th (Wed" nesday) Willcocks did not transfer the license till the next day. Left on the Thursday. Mrs Harrison had not yet executed a bill of sale to the bank. By Mr Perkins — The property had to be tranferred to Mrs Harrison before she could re-mortgage it to the bank. Willcocks gave witness the keys on Wednesday, and witness handed them back to him to get a Alascmc diploma out of the safe. Willcocks then gave up the key to Russell. By Mr Warner (through Court)— Understood that Willcocks had limited means. Was not aware that Willcocks was in debt. Thought Willcocks had a hundred or two. Prudence Harrison — Was a widow residing in Greymouth. Purchased the Melbourne Hotel and contenta from the bank on Thursday. On Friday morning signed the agreement, and took possession between 2 and 3 o'clock on Friday afternoon of all that was in the house. Wil» cocks was not there at the time. She had been in possession since. Willcocks had been in the house since, and she requested him to transfer hia patronago to another house. Had never been in the house as owner. Had been in legal possession. Was in possession when the bailiff came on Saturday. By Mr Warner— Mr Leitohfield told Mr Russell that the property belonged to her. She took possession by walking in, and commenced to do business in the house. She had the keys of the safe and the drawers. Did not know who gave them to her. Had not a Hat of the furniture in the house, but all thatfcwas in it belonged to her. Willcocks only went

into the bar not into any of the bedrooms. Had given a cheque for L5O for the house and paid the ground rent. Never asked the Bank of New Zealand to arrange for payments of the cheques, as she paid the cheque with her own money. She banked with the Bank of New Zealand. Paid L 45 for ground rent to Perkins. L 5 wa3 deducted because she paid cash. ! - By Mr Perkins — The goods seized by the •bailiff were in her possession on Saturday. Remembered Mr Laitchfield going behind the bar, and pointing to the safe, and taking the key out of it gave it to her. Francis Hamilton— Was a merchant, esiding in Greymouth. The Melbourae Hotel stood in his name. James Hamilton had an interest in it. Remembered the sale with Willcocks. It waß arranged in Ohriatchurch, but the furniture was valued in Greymouth. Was present when the cheque was signed in his (Mr Perkins's) office. Received the cheque for LBOO, and paid it into his credit. Willcocks was to pay the ground rent from the Ist November. It was understood that 10 per cent would be remitted of the ground rent if it was paid promptly. On Thursday afternoon knew the bailiff was in possession. By Mr Warner — Paid the cheque into the bank the same day he received it. Had no guarantee from the bank that the cheque would be paid. Mr Litchfield said the cheque would be all right. The property was sold through the bank. The property was not under mortgage at the time. The deeds were deposited with the bank. Robert William Russell — Wa3 a commission agenfy residing in Greymouth. Took possession of the Melbourne Hotel on Thursday on behalf of the bank. Retained possession till Friday, when he handed it over to Mrs Harmon. Coald not say when Willcocks left. Mrs Willcocks left on the 16 th. Understood from Willcocks that he was going, to stop at Jones's. Had luncheon in the hotel on Friday. By Mr Warner — Could not say whether Willcocks's things were in the house. Would not aay for certain that Willcocks was in the house when he left. Came to the bar and had drinks. This closed the plaintiff's case. Mr Warner raised an objection to Mrs Harrison's title. The only evidence was the written evidence. Mrs Harrison was only a tenant at will, under clause 6 of the sale note. The bank was the real owner, and she could not be such. They had it in evidence that she was not the true owner, and therefore she had no power over the goods seized. The sale note conferred no title on Mrs Harrison. Mr Leitchfield's position as manager did not give him power to dispose of any bank property, but only to conduct the ordinary business of a bank. Though Mrs Harrison might be de facto in possession, she must be able to show a good title, and this was not shown. The bill of sale from WilL cocks to the bank was bad, on the ground that it was executed without consideration. Some discussion ensued, in the course of which Mr Warner urged that he had been taken by surprise, inasmuch that the Bank of New Zealand claimed to be joined in the interpleader case B and argued thai the case of Mrs Harrison should b 9 treated separately from the Bank of New Zea land. Ultimately his Worship agreed to the course proposed by Mr Warner, and the case proceeded. Mr Warner called, George Henry Willcocks — Was an hotelkeeper residing ab Greymouth. Remembered purchasing the Melbourne Hotel from Hamilton. Paid LBOO for it. Remembered the circumstances of signing the deed. It was signed at Mr Perkins's office. Gave a cheque drawn on the Bank of New Zealand for the property. Had no funds to his credit when he gave' the cheque, lh had not been arranged that ho should give the cheque for the money. There was an arrangement made that Thoma3 and Burgess, solicitors, of Christchurch, should advance the money. They should pay it into the bankat Christchurcli for him. They had no funds of hia in hand, but were going to make the advance, The cheque was on the Christchurch branch. The cheque produced was the same. [The Court . It's on the Greymoutt Bank.] Tt wa3 supposed to be presented in Christchurch. Did not know whethei the cheque was paid. Did not see Mi Leitchfied prior to giving the cheque, After giving the cheque he entered, and took possession of the premises. Executed the bill of sale previously. It was done at the same time as he signed the cheque. Signed the deed first, and the cheque subsequently. Gave the cheque immediately afterwards. Remained in possession till Thursday last. Left on Friday morning for Kumara. Had been about the premises since, but had no connection with the ptemises. Had had a glass of beer at the bar occasionally since. Ho was accustomed to be in and out of the promises, and on the footpath, both before and since giving up possession. Had had an advertisement in the newspaper, which had been withdrawn. Did not give up possession voluntarily to the Bank of New Zealand. They forced him to do ao. They came in to him for rent. Mr Leitchfield came in, and Mr Perkins also, on behalf of Mr Bradshaw, on Thursday. A demand had been made three or four days previously for ground reut. That was subsequent to receiving M'Laan's summons. Had signed two transfer of licenses' forms, but they were not filled in. Whßn he said he was forced to give up, he meant the bank had a claim on him for rent. When M'Laan summoned him, he considered he was a tenant of the bank. He gave up possession to Mr Russell, because he considered he was bound to. Had signed other papers besides the license forms. Signed them in Perkins's office. When he signed the transfer papers, Hamilton wa3 with him. Did not know what the other papers were, as he had a bad memory. Signed them on the Thursday after he gave up possession. By Mr Perkins — Did not remember him coming to him for rent previously to M'Lean summoning him. Mi^ht have done so. Remembered going with Frank Hamilton to ' the bank to arrange for obtaining the raouey on the 6th November. Did not remember Mr Leitchfield saying "If you give your cheque for the amount, it will be paid." He might have said so. He was to pay for it by instalments. A party in Christchurch was to pay LlOO— R. D. Thomas, Esq This was all he was to get from Christ-chui-ch, and the other money had to be repaid by instalments. Remembered asking who the license was to be transferred to, and was told Mr Russell. Was

certain that Mr Rusaell'j name was not struck out and Prudence Harrison's name inserted instead. Came back from Kumara on Saturday morning. Slept at Noonan's Hotel on Friday night. Was all over the town. On Thursday night, sent a note down to the Argus to stop his advertisement. His wife went with her box. B 3 Mr Warner— R. D. Thomas waa a solicitor belonging to a firm. They were not responsible to the bank for any amount he might withdraw. "Was under the impression that they advanced him LIOO. They did not advance the LIOO, and failed in the agreement. Mr Perkins wished to call rebutting testimony as to the signing of the transfer— and went into the box himself. William H. Perkins — Was a solicitor of the Supreme Court. The two transfers of the license of the Melbourne Hotel were signed in his presence by George Henry Willcocks (transfers produced), on Thursday afternoon, and at that time the name of Prudence Harrison was ou the transfers. Previously to that the name of Geor s e William Russell waa struck out and Prudence Harrison wrote over it. The date had also been altered from 15th to 16th. Willcocks must forget if he said the name was not in, as he wrote it in himself. With regard to the execution of the documents, the cheque was in his handwriting, signed by Willcocks, handed to Frank Hamilton on the understanding that the cheque waa to be paid by the bank as cash. Hamilton walked out of the room, and Willcocks executed the bill of sale. Not a minute elapsed between. Between 6th and 16th December, and before, he knew about M'Lean's summons, as attorney for Charles Bradshaw, ground landlord, he frequently saw Willcocks, and endeavored to obtain payment of the rent without success. On the 11 th December, witness threatened to sue for ground rent. Had warrants made out, but did not employ a bailiff. By Mr Warner — Mr Russell took possession on Thursday by direction. Cannot say if Willcocks sold liquor after that date. Was not aware that Ruasell was selling without a license. The cheque was treated as cash. The whole of the affair of signatures did not occupy three minutes. There was a conversation between Willcocks and Hamilton at the time of handing over the cheque. Frank Hamilton re-called — The license was transferred to Mrs Harrison on Thursday. Saw Mrs Harrison's name filled in before Willcocks signed the transfer. By Mr Warner-i-Kuew nothing about the Bigning of the bill of sale. The cheque waa signed in his presence, a&d handed over to him. Mr Leitchfield (recalled)— Had special authority to dispose of the property to the best advantage. By Mr Warner— The letter was not in his possession. It was in Greymouth. Did not remember this morning that he had the letter, but remembered it since. Produced the letter. " Willcocks get rid _ jof him by all means. Do your best to prevent unavoidable loss." He regarded B this as an authority to sell. y Mr Warner reiterated his defence only in regard to Mrs Haraison. She had no , authority. The paragraph in the letter t did not give Mr Leitchfield any authority , to sell. The only authority to sell must be under the seal of the bank. Willcocks was in apparent possession, and the goods , were on the same p-emiaes as when the sale was made to him. There was no break in the apparent possession so far as the outside public was concerned. * Mr Perkins addressed the Court at some length, contending that the goods ' y seized were not the goods of George j> Henry Willcocks, but of Mrs Harrison, and quoted various authorities in support , of his argument. He urged that in« Btructions fhould be given for the bailiff . to withraw from possession^ ' His Worship reserved jndgment till j. 7.30 p.m. On reassembling his Worship said that " during the adjournment he had aseea- ' tamed that hn waa remotely interested as a private individual in the issue of this action Such being the case he would leave ' it to the counsel to say whether he should continue to sit as a magistrate in the caae. If there was any objection he would not j give hia decision. r Mr Perkins had no objection to hia Worship's deciding the case, and Mr Warner on behalf of his client expressed j a similar opinion. , Hia Worship said there wa3 not the" c slightest doubt but that the counsel on } both sides had not left any matter untouched in the interests of their clients. The caae seemed to be bristling with law points from begining to end. In giving judgement he was guided by section 72 of tha Resident Magistrates Courts Act;, j 1867. He found that Prudence Harrison 1 was in possession of the goods by purT chase, and that thft goods did not belong to George Henry Willcock. He found that Willcocks had not given any fraudulent preference to any particular creditor, and ( that the property was fairly and legally purchased by Prudence Harrison. His \ decision was that the goods belonged to , Prudence Harrison, and [that the bailiff be ordered to withdraw. ; Mr Perkins applied for costs. Mr Warner having showed cause against the application. His Worship' said he was with Mr Warner aud would simply make the order.