RESIDENT MAGISTRATE'S COURT REEFTON.

Inangahua Times, Volume IV, Issue 21, 28 May 1877, Page 2

RESIDENT MAGISTRATE'S COURT REEFTON.

Fbiday, May, 25, 1877. [Before Edward Shaw., Esq.*R.M.] NEILSON V. FLETCHER BROTHERS. This was a case of disputed partnership account. The parties had been partners in a saw-mill undertaking, the , venture turning out unprofitably. Ultimately arbitrators were called in to adjust differences between tho parties, but the issue of the arbitration was disputed by Neilson and hence the present action. Plaintiff claimed £30, which sum was disputed with the exception of ono small item. Mr Pitt and M.r Staite appeared for the plaintiff. Defendants conducted their caae in person. The following evidenco was called :— William Davidson— l was appointed with Mr John Dick to arbitrate in a matter of disputed accou.nl between the parties. Wo found according to the documents placed before us that the liabilities of the firm tyere something like £10. Neilson having originally paid less iq,tothe partnership th nn tho Fletchers, we found that he was indebted to the estate in a sum of £32— that was his proportion of the liabilities due. Fletchers had also to pay in something like £14. Under the. settlement arrived at, Neilson would be entitled to receive his share of all book debts, collected subsequent to the date of the arbitration. Neilson mado no claim at the time in relation to Flu toy. There was a good deal of barney about Flutey at the time. Neilson seemed to wish that Fletcher should take up Flutey's share of the partnership liability, and allow him (Neilson) to go free. Ke« collect the sum of £20 being mentioned, as having been advanced to Flutey aspersonal expenses on an expedition to purchase an engine for the company. Neilson had a perfect right to pay his proportion of that account. Originally Flutey was to go, to Melbourne to buy the engine, but he did not go beyond G-roymouth. He, however, spent the money. Csoss-examined— The deed of partnership produced was not shown to us at the tin;e of arbitrating. Lawson was originally a partner in the undertaking. *I know this because goods were purchased by Flutey and Lawson in the namn of the partnership. I cannot say the date of the advance to Flutey. Fluty appeared to have had no money of his own to put into tho partnership, Fletcher advanoed £20 in cash, but I cannot say whether he did so out of his private funds or out of the partneship money. The partnership was an extraordinary affair; all the parties were to have an equal share in the business, but they did not all put in an equal amount of capital— some in fact put in no capital at all. Flutey had no money whatever. Neither did Lawson. It was represented to us that Lawson was an old mate of Nelson's, aad that the latter had advanced £23 on Lawson's ac account. But Neilson denied to us in an equivocal kind of way that he had advanced the money on Lawson's account. He was a partner in the undertaking originally, bnt he was heavily in debt and acting upon ad vice,» Fletchers got rid of him. by purchasing bis interc&t in the. venture. Neilson did not deny to us that Lawson was a partner. In the settlement we wont upon the assumption that Neilson was indebted to the amount of his advance to Lawson. The undertaking was not a prosperous one* About £400 was j put into the business originally, which sum was all sunk. The assets of the partnership were only about £19. We went through the book debts, and found they were of very little good. There was one debt due by M. French which we re- j garded as problematical. It was arranged that cacb of the partners wexc to

pay off certain debts. Lawson having left the partnership, his share of the liabilities and asset? fell upon the remain' 1 ing partners. By the Court— How I came to be selected to arbitrate was as follows: The parties and Mr John Dick all came together to my place and asked me if I would act, and I consented. My acting was therefore with the concurrence of all parties. I certainly did not understand that I was to guard the interest of any particular partner, but all alike. John Dick— l was appointed an arbitrator in a matter of disputed account between the parties. Went through the accounts with Mr Davidson, and arrived at the conclusion already stated. I fully endorse all Mr Davidson has said. We found that Neilson had paid certain moneys on Lawson's account. This closed the plaintiff's case. George Fletcher— When we broke up the partnership certain accounts were outstanding, and Neilson eaid that he would not risk the cost of summoning the parties as it would only be tbrowing*gaod money after bad, and that if myself and my brother liked to go to the expense, if we got anything we might keep it ourselves. We thereupon took certain proceedings, and recovered a sum of money, and plaintiff now charges us with the amount so recovered, which I do no consider be is entitled to. He also charging us with his proportion of £10 10a recovered from Frond. I am willing to allow him his proportion of that amount. He his also charging a sum of £2 for paid for a bond executed relative to Flutey's share. He is not entitled to that amount, ai it was agreed that that sum should only be paid upon the return of Flutey, and Flutey did not return. Eegarding the sum of £20 for Flutey's expenses to Melbourne, it was agreed by the firm that both Flutey and myself should have £20 each to pay our expenses to Melbourna to purchase machinery. That was an allowance out of the company's funds for doing the company's work. Neilson was present when that arrangement was made and was a party to it. It is true that we only went as far as Greymouth, but Flutey had the £20 and appropriated it to his own use as if he had gone to Melbourne, but I only ehargod the company with my actual coach fare Jo and from Greymoutb, Plaintiff is thercforo justly entitled to pay his proportion of that £20. The item of £2 17s charged by Neilaon is absurd, because we would be quite as much justified in turning round and suing him for that sum, as we suffered equally with him through Fluety's abience for which that sum. U charged. the cash receipts of the partnership up, to the time of arbitration were duly regarded in the settlement. The amount now owing to the firm is £9 7s 6d. Eegarding the sura of £20 charged, I will swear positively that that sum was advanced by Neilson on account of Lawson. I was present with the ofh«?r partners when Neilson paid in £92 on account of t' c portnersbip. He then said that £72 was on his own account, and £20 on Lawsons account. We each had to pay in £fb, and it was agreed that Neilson should pny in Iho balance of his amount in the course of a day or so afterwards, but as a fact he never did. Lawson was an old mate of JNeilsons and that is the reason he paid for him. Lawson never put more than £20 into the business, and the reason was that be left the partnership before it was -necessary for him to pay the balance. Lawson made himself so disagreeable that to get rid of him my brother bought him out. The only right of partnership he had was in reference to the £20 he had paid in. My brother paid Lawson £27 for the interest. I believe Neilson got uoth» ing from Lawson who cleared out without saying anything to anybody. I was not in Eeofton at the time my brother bought Lawson's interest. It is a fact that Lawson let Neiison in for the £20. Did not re. gard it as any special business of mine to see that Lawson returned the money to Neilson. By the Court— And your brother did not think it worth while to inform Neilaon. Witness— lt was Neilsons own fault if he was let in through lending his money to a dishonest man. I lent money to a dishonest man and was let in the same way. Neilson had the offer to buy Lawson's share if he thought proper to take it, but be refused to have anything to do with it. I concealed nothing from the arbitrators, but explained everything. Cross-examined— l gave no receipt to Lawson for the £20. At the time Neilson advanced that amount to Lawson, I was j agreeable to advance him the balance of £55. Latterly Neilaon became dissatisfied with the undertaking. The £30. now charged by Neilson was the amount advanced out of the partnership funds to pay Flutey'a expenses in Greymouth. A$ the time it was agreed to allow Flutey that sum, Neilson was a consenting party to the transaction. By the Court — We purchased, the required machinery in Greymouth cheaper than it could hare been purchased in Melbourne, so it was unnecessary to go further, but Flutey had received the travelling allowance and stuck to it all the same. As the undertaking never paid any dividends, we had no opportunity of deducting any money from Flutey. I only admit two of the items charged in plaintiffs' bill of particulars. James Fletcher— l am quite certain

that Neilson advanced the £20 on Law- , son's account; Neilsona reason for paying the £20 was that Lawson was an old mate of his, and as he (Lawson) was acquainted with the saw»mill business Neilson was anxious to have him in tho undertaking as he himself knew nothing about the business. Am quite certain that this waa the reason Neilson advanoed the money, and am sure it was said at the time by Neilson that the money was paid on Lawson 's account. It was said that Lawson would get money up from his friends at Kanieri or Hokitika. I know that since I bought the share Neilson disputed that he paid any money on Lawsons account, bat he did not dispute it until then. Neilson often recommended me to buy Lawson out, and said that he would not work any longer with him. Neilson was a very disagreeable fellow altogether. At the time of the arbitration, I was working at Baiay Creek, and did not attend. This closed the case for the defendant, and Me Pitt baring summed up upon the law of the case. His Worship intimated that he would deliver judgment on Monday next. The Court then adjourned until 3 p.m.

At 3 p.m. the Court resumed upon an inquiry into the conduct of Mr John Temperley, bailiff of the Court, in connection with a recent seizure of property at the suit of the Back of New Zealand v. Davies. In connection with that seizure, the bailiff had been charged with misconduct, and hence the present inquiry, which was conducted upon oath, before Mr £. Shaw, 11. M. Mr Pitt appeared to watch the case for the Bank of New Zealand, and Mr! Staite acted for Mr Temperley. . Colin Campbell— l am agent of the Bank of New Zealand, at Keefton. The bank obtained judgment against Mr L. Davies for £100, and a distress warrant having been obtained, it was placed in the hands of the bailiff for execution. The bailiff was instructed to levy upon the defendant's office, furniture, and effects. In company with the bailiff, and the bank solicitor, I went to the defendant's office, and assisted in placing a seal upon the safe. The bailiff was strictly in« structed not to permit the safe to be opened without acquainting either the bank solicitor or myself. On calling at the office, on tiie evening of the 11th, I found the safe open, the contents gone, and the bailiff asleep in a chair. I awoke him and asked him who opened the safe, when he became very abusive and threatened to throw me through the window of the office. I did not use any abusivo language towards him. He was very faounceable and wanted me to fight. He was very violent. I had to shake him for some time before I could get him awake. I did net use unnecessary violence. Early in the day referred to, the bailiff called at the bank and asked me if I had any objections to allow Davies to open the safe. I then told him I did sot wish the safe opened, except in the presence of either myself or the solicitor for the bank. [The remain* ing portion of Mr Campbell's evidence was a repetition of that reported by us on a former occasion.] Peter Johnston-*-! live at Ahaura. On the 7th April last I was in Bcefton. In consequence of what Mr Campbell told me, I went with Mr Tumporley to Mr Davies' office, and I was placed in possession, giving me at tho time the written document produced. Subsequently a duplicate of the warrant was banded to me, aod upon that authority I remained in possession until the 13th of April. Mr Temperley was absent from Eeefton for a feyr days and upon his re* turn on the 11th, he came to the office by himself and then left and $hortlj after returned with Mr Paries. This was between six and seven o'clock. There is two rooms to. the offi.ee and they are connected by a passage. Temperley end Davies were in the front room, while I remained with the clerk in the back room. I heard tho sound of the safe being opened and the noise of silver being counted. I made the remark to Mr D' Tourette that I thought it was all settled. Daries then went out and shortly after Temperley called me into the front room when I saw that the seals bad been broken off the safe and the door was open. Temperley was sitting alongside the safe. He wrote a letter to Davies and sent me with it to Dawson's. I went across and after waiting some time saw Davies and gave him the letter and re* turned to the office. Davies gave me no answer for Temperley. He merely opened the letter, read it and laughed. Temperley then showed me the safe and I could see nothing in it but some papers and documents. There was no money in it. The safe was not opened in my presence. Some time after Mr Campbell, called at the office and found Temperley asleep on a chair beside tho safe. Mr Campbell took bold of him by the shoulders and shook him until he awoke up, Mr Campbell then said " who broke the seals and opened the safe without my permission ?'* Temperley said " 1 did. and as an officer of the Court I had a perfect right to do so." He then, rose and challenged Mr Campbell to fight and said he would break his d— h«ad, if it was not that he was acting in his official capacity, even though he (Campbell) was a manager or agent of a bauk, and that he had better miud his own business. Mr Campbell did not use any abusive lau-

guage to Temperlej that I heard of. H» (Campbell) took it very cool— much cooler than I would hare taken it. This was on the evening of the 11th. Tern* perloy also said that I had better doge the doors and he would throw Campbell through the window into the creek below. Soreral other words passed bat I do not recollect them. I made a note of most ot what took place on the occasion. Shortly after Campbell left the office, and Temperley fell asleep again. On the 13th I received the letter produced from Mr Davies when I at once retired from th» office. This was between four and fire. p.m. Cross-examined— Know nothing what* erer about the opening of the safe be* yond what I hare already stated to the Court. When I heard it being unlocked I thought they had settled everything. It was not until two days after that the money was paid, Mr Campbell did' seem very much annoyed at the safe having been opened, but he used no ab« usive language. He said that he had no right to allow the safe to tw opened after getting such positive instructions to the contrary. Temperley seemed irritated at having been disturbed from his sleep. He did make the remark that he wood! do certain things were it not that he was acting in his official capacity. Campbell told Temperley that he had better not i attempt anything of the kind. I hare no particular reason why i made a note of what occurred. I had not acted at a bailiff before and I thought it advisable to make a note of it. I don't think that Mr Campbell said anything about subsequent proceedings being taken, but it struck me as being rery likely. By the Court— l did not see the se*k put on the safe, and cannot say who poi them in. This closed the evidence in support of the complaint. ■ Mr Staite said that before calling eydence for the defence, he would refer to, the section of the. Act under which the." complaint had been hid. Be contended that the whole- scope, of the- section in. question was to afford relief to person* who had been placed out of pocket through the carelessness or negteet of tii» bailiff. In this case the judgment hai* been fully satisfied, and, consequently,, there could be no ground of complain}: under the section. * J His Worship sa^ that the word M mis*, f conduct " was mentioned in the section, * and he presumed by the evidence that V it was that charge the bailiff had beJb V called upon Jo answer* A. bailiff acting under color of a process of the Court was,,, • in his official capacity, and a* such wasamenable to a cha g? of mi& oiduet. Mr Staite— But wh*re the judgment. ' creditor suffers no pecuniary loss? The* : . bailiff executed the process of the Court- ' to the full satisfaction of the judgment,. * and if he otherwise erred he was answera')!e as any other person, bat not he submitted in the manner charged. His Worship— But a distinction is to be drawn between the conduct of the bailiff as an officer of the Court and th; fc in his private capacity. Mr Staite— The bailiff is appointed to levy moneys under distress warrants, and what misconduct can he be guilty of if he > obtains full satisfaction of the wasraot and returns the money ?. Hi* Worship— That is what the plaintiff* are here to make oat. The bailiff w charged with misconduct and that mis* conduct is alleged to bare, been committed by him while in. the performance of his official duties, and I am sitting here to. find out how far the charge ii substantiated. The bailiff in short » charged, with, improperly discharging his duties— with, exceeding his duty. Mr Staite— ln the first plaefr what righfr had Mr Campbell to place seals, upon. the. safeP His Worship— But have I got to. try. that ? Mr Staite— Mr Campbell bad no rigb> i whatever. He was in fact interfering with the bailiff in the discharge of his, duty. His Worship— Aa a matter of law, there is no doubt it was very improper, unless the. seals, were put on with the consent of the bailiff. It seems that *Tr Campbell thought it advisable to. place seals upon the sals, and thereupon tug-* gested that course to the bailiff, and it was therefore to be assumed that the, sealing was dona with the consent of the bailiff, and may have, been, done for joint protection. Mr Staite— lt Was certainly a most; rediculons farce. His Worship— lt would not hate been, ridiculous if done by the bailiff. Mr Staite— l fail to, see the distinction. His Worship— Suppose a. box. wew left in your custody, and you, were, led to, believe that it contained valuables would; you. not consider it a justifiable precaution, to place, a seal upon it, particularly if you. left it in the charge of another person. Mr Staite— What wa,» it the bailiff seized- Surely not the contents of the safe, bnt the safe itself. The bailiff could not seise that which he. coujd not get hold of. His Worship-»Tbat is a question, o£ law. Mr Staite— lt is contended thai the. bailiff acted illegally by placing seal* upon the safe. What was it that an* noyed Mr Campbell* The mere breaking of the Back seal which had no right ia the world to hare been placed on to,©.

Mfe. 'The bailiff was perfectly justified in opening the safe. Hii Worship— lf the owner had reqnested the safe to be opened the bailiff eotild not refuse to open it, but directly it Was opened tbe bailiff could seize the contents. Mr Staite — It is quite clear that the bailiff did take that course, but what did be find in the safe ? His Worship— But ifc is not the opening of the safe that ia comphiined of. Mr Staite—What right had Mr Campbellthe** at all? He had the bailiffs in possession, and must needs go himself occasionally and take with him the Bank •olioitor to do the night watchman busi* ness. He would admit that under certain provocation the bailiff had made use of some strong language to Mr Campbell, but no man likes to be accused of negligence. Particularly as Temperley had only « just retnrned from a long journey on the business of the Bank, "and was greatly fatigued by what he bad gone through. The complaint at the most was a most trifling one. The fact was that the bailiff performed his duty as between debtor and judgment creditor, and that in the discharge of that duty he had been interfered with by Mr Campbell, who was nothing more than- a trespasser on the premises. John Temperley— l am bailiff of the Resident Magistrate's Court at Reefton. A distress warrant was placed- in my hands at the suit of the Bank of New Zealand v, Davies, and I was instructed . to levy upon the defendant's office furoi* tare. There Bad been no levy previous to this. I was also instructed, to telegraph to Greymouth and instruct a person there to attach certain scrip belonging to the defendant in the Crushing Company. His Worship suggested that the line of examination should be confined as closely as possible to the charge. Examination continued— Campbell told me to levy upon the safe and office furni* ture, &c. X levied upon the safe. I then proceeded tS Grey mouth. I returned at twelve or one o clock on Wednesday morning* If was on that day the scene took place. Heard Campbell say just now that I went to him and told him that Davies wanted to open the safe, and that he instructed me under no circumstances to allow Pavies to open the safe. That statement is not correct. I should not consider myself an officer of this Court if I wont to Campbell for in« Sanctions as to the performance of my duties. Davies never asked me to go to Campbell, nor did I go. I was in the Bank on that day and told Campbell that DatfieS had returned from the Ahaura, where he had been for a few days pre-

previous, and he (Campbell) did not tell < fflfi not to open the safe or allow it to be / opened unless he was present. Had be directed me what to do I should not have paid say attention to him. I tried at first to seal the safe, and as I did not at - first succeed, Campbell tried it with my permission and did it. Campbell told me heiwas certain there was jewellery in the ffftfe to the value of £200. I heard him «£y jqst now be was doubtful whether he would be able to recover his judgment. The sealing was done in toy presence, and with my consent. I did not allow Davies to go to the safe. As I was returning from CJ-reymouth I saw Davies at Ahaura, and the next day at 12 o'clock I heard that Davies had arrived in Reeftoo, I subsequently met him and he said lie had seen the seals on the safe, and that were it not for me would break them, I with him to allow the seals to remain. He refused to give me the key of the safe, and it was arranged that he should open the safe in my presence and give me the key. Before I consented to tufa he assured me that there was not* more than £10 or £12 and some papers belonging to other people in the safe. The safe was then opened in my presence, and the cash box taken out, and it was found to contain £14 in single notes and two coins. Previous to the spfe being opened Davies told me that had it not been for the matter of sealing the safe he would have paid the amount at once, and showed me a roll of notes which if all single would represent about £100. He said he intended to pay the amount. The contents of the safe turned out as he had said. By the Court— l did not seize the con* ■ tents of the safe when the door was opened. After the safe had been opened Paries said that he would go to tea and come back after and pay me— this was on the day the safe was opened. The reason I did not seize the contents of the safe was that I was thorougly certain upon good faith that the money would be paid within an hour. The money was not paid Ibat night, but on the following Friday. Another of the reasons why I opened the safe was because I saw enough money in Davies' hands to satisfy tb« judgment. When Campbell came into the room X was asleep, and he shook me violently. He came in in an excited manner and knocked me about a good deal and asked me what I meant by breaking the bank seal. I said that I wonld Break the bank, much less the seal. I made those remarks in the heat of the moment and owing to Campbell's behaviour. He spoke in an insulting way and handled me rather roughly. It was at hit conduct, particularly in the face of the fact that I bad been riding for two days and two nights on the business of the bank and had crippled myself, and then (o be accused of drunkenness. I was suffering* wholly from exhaustion, I belief* I did tell him that if ho did not go ont the door I would throw him out of the window into the creek. He had no Hocnj standi there at all. Campbell used threats towards me. When I said that I would throw him out the window he said something about my not being able, I believe he did use threats towards me. He did not say he complained of my condnof. I did not touch him. Were it not for my position as an officer of the Court, I would have touched him. Cross-examined—! commenced to put the sealt on the safe and Campbell and Pitt afterwards completed it. Each of us had different opinions as to the propriety of sealing the safe, and how it should be done. It was at my suggestion that the tape round the safe wa9 ssalscl to the floor,

His Worship— When Mr Campbell came in in the evening did he ask you if yon had seised the property taken out , of the safe? Witness—No. He merely said { What > do you mean by allowing tny seals tc be i broken." I then told him tbafc I had got the key of the safe. I also told him to mind his own business, and tbafc be ' had no right there whatever. ' Louis Davies — It was in my office that the seizure in question was made. . The bank had obtained judgment against me for £90 or £100. 1 did not satisfy the Judgment at the time as I was going to ' Ahaura, and there were some other i parties interested in the judgment with , me. On the day before I left I saw Campbell and told him that I sboull return on Saturday or Monday, when I 1 would settle the claim, and he said " all i right." On the Saturday night Campf bell put the bailiff in my office, and I j came up on the following Wednesday. ' Saw Temperley at Ahaura, and he in' ! formed me of what had been done- I 1 first heard that the Bank had siezed my r safe in order to get certain papers. It was i the common topic in town that I had , certain documents and letters in my safe ' from Mr Lapham relative to the ease of Mace v. Lapham. I saw Temperley ; and saw tape round the safe with seals, i I did not then know that the tape and seals had been placed there by the Bank of New Zealand. An oilskin coat was 1 thrown over the safe. There being only i a sub-bailiff in possession I said nothing i but found Temperley and told him I was prepared to pay the claim, but as I was about to take the money out of my 1 pocket somebody called me and I went to tea, telling Temperley that I would call over after tea and pay the money. In the meantime I heard a good deal of talk, and from what I beard I was determined that I should not pay the money until the vory last moment. I paid the money on Friday. The sealing of the safe was my reason for withholding the "money. I heard that Campbell had sealed the safe, and I was about to remove the seal when Temperley asked me as a favor to allow it to remain. He asked me if there was anything in the safe that I wanted, and I said no. Subsequently I took the seals off and sent them up to Mr Campbell, telling him to keep them, as be might want them again. I also sent him word that if be came into the office again, I would kiok him out. Ultimately I opened the safe. I also gave notice to Campbell that unless my safe was repainted within two hours I should take proceedings against him. The safe was repakted and paid for by the bank I suppose. Cross-examined — There was some jewellery in the safe. The conversation with Campbell alluded to passed in the street. I told him I would settle tbe matter on my return, and he sail " ill riyht." I was not much surprised at his breaking faith with me, as I am used to that from him.

By the Court — There was some jewellery in the safe and I left it there. I took some papers out of the safe and stuck them in one of the pigeon holes in the room, I did not take them out of the office. I gave Temperly one key of the safe and kept the other. The jewellery in tb* safe was not of any very great value, perhaps £20 or £30 perhaps more. This closed the defence. Mr Pitt required the permission of the Court to recall Mr Campbell. His Worship— For what purpose ? Mr Pitt— To contradict a statement made in the box by Mr Davies. Colin Campbell, recalled — I heard Davies swear just now that he had a conversation with me before going to Ahaura relative to the judgment. It is totally untrae. Had no conversation with him whatever. Never told him that it would be " All right " if be paid on his return. By the Court— Ho told me ho would confess judgment. I could not make any arrangement with him about staying judgment, as I had specific instructions to obtain the money at once. Cross-examined—The debt was allowed to stand over for a considerable time up to the date of summoning him, but there was to be no further delay after judgment was obtained. The reason assigned by Davies foe my annoyance at the safe being opened ~ namely, that he had certain documents in the case of Mace v. Lapham if quite untrue, I never had the slightest idea that he any documents relative to that case— it was quite immaterial whether he had or not. I felt annoyed after giving the bailiff strict instruction as to the opening of the safe, and knowing the slippery nature of the customer I had to deal with, that the seals should have been removed without acquainting me or the bank solicitor. This closed the evidence, and his Worship reserved judgment until Monday (this) morning.

t»rtJUi." „"■■■' — ■ — : -"*~ -.------ Wwtport • J# *'" Mwson orevn>ouln ... ••• i 1 ** '" ' A ■»«■„.- kelboume | | t Oordon wfl o?tcb by I^st, 21s. p<* Quarter, xvoen plated to all parts of the Celonj? AdfCTtiwmepta intencicd for insertion tone jtft at tia Offlco of the Paper, not later than 0 «?COC» on the night of publication. Jfotice ftf irithdrayral of Adyertisement or puhamption to ha sent in in writing* no yeroab orders attended to.