DISTRICT COURT.

Lake Wakatip Mail, Issue 1056, 21 February 1878, Page 3

DISTRICT COURT.

Queenstown—Tuesday, 12th Februaky.

(Before His Honor Judge Harvey.)

.Beale v. Preston.—Council on both sides said the case was in course of settlement. Scheib v. Anderson—£2oo for wrongful conversion of oats. Mr Finn for plaintiff; Mr Turton for defendant. Pleas were filed that the oats in question were defendants ; that the

plaintiff had no right or title to the paddock ; and that payments had been made. This case lasted nearly two days aud presented some most peculiar features. ' The following is merely a condensation of a mass of evidence taken.

The defendant, called by. plaintifl, deposed that he was a butcher and had supplied plaintiffs hotel, Oibbstown; with meat to the extent of £BO. Plaintiff became ill and went to the Hospital. Witness was authorised by plaintiff to take possession of a paddock of 20 acres situate at Gibbstown, and obtained 650 bushels of oats from it. It was not 963 bushels. (Defendant was examined as to sales made by him, but gave so reluctant and contradictory evidence that he was censured by the Court for denying a thing one time and shortly after admitting it). He thought that plaintiff owed him in all i'l2o. Never borrowed £SO from plaintiff nor from Mrs Scheib, nor ever gave an I. O. U. for the amount. Did not think so. The document produced is in his hand-writing as follows : " Gibbstown, 23rd March, 1874. T. O. U. fifty pounds sterling.—D. M'Gregor." The authority by Scheib to take possession of the paddock was given in writing. Produce it as follows : "Frankton Hospital, 22nd June, 1876.—1, W. N. Scheib. authorise my wife, Elizabeth Scheib, to collect all debts and acts as my agent.—W. N. Scheib. Elizabeth Sheib."

" This is to certify to my sale in the paddocks. —Elizabeth Scheib. Initials, W. N. S." (Stamp.) Cross-examined—The body of the order is in my hand-writing. I gave it to Mrs Scheib. His Honor—lt is only an authority for the wife to act as agent in the body. Witness did not put any writing on the document. Supposed the initials were Scheib's. The stamp was there when signed. The words referring to sale of paddock he thought were put on next day initialed by Scheib. The rigures on the stamp are his. Saw him write them on the 23rd. Had bought the paddock a couple of days before from Mrs Scheib. It was a bona fide sale. His Honor—Why not then have got Scheib to sell direct to you ? Witness afterwards got a receipt for the purchase money. It was before the end of last year. It was signed before the execution issued by Turton against G. Scheib. Never agreed to hold the paddocks at the disposal of Mrs Scheib after that purchase. Allowed her to >ffer them for sale. The document produced is in my hand-writing—" Gibbstown, 24th August, 1876.—1 promise to be responsible to \lrs Scheib for the paddocks when Mrs Scheib wants them.—D. M'Gregor." His Honor—You said just now that you never gave any authority about selling the paddocks, yet you now acknowledge you gave .his one. Mr Finn said the witness prevaricated so auch that he must put in a letter written to .Ira Scheib, but it was of so disgraceful a nature Lhat he would ask the Court not to read it out. (A long letter was here put in, and it was professed among other things to cover a bill of <ale.) Witness—The letter is in my hand-writing. ' After repeated questions)—-Yes, I did send a second sale note. Believe it is torn up. Received it back signed. His Honor—Was the sale note used to put the bailiff out of possession ? Witness thought not. Witness received the following sale note from Mrs Scheib :—" 1 have this day sold to D. M'Gregor all the interest of W. N. Scheib in the paddocks for £l2o.—Elizabeth Scheib." It was not £l2O paid in cash. £BO was for meat and £4O was given in cash. His Honor—Why not have said so at first without so much fencing.

In reply to his Honor witness said he sent £2O to Mrs Scheib in Dunedin. Got no receipts tor any of the £4O cash paid. She wrote for the money, Gave her ilsin Gibbstown at the time of the sale of the paddocks. The contra account had been running for years. His Honor could not understand the defendant. He denied and then admitted things. Mr Tnrton would again examine witness and explain matters more clearly when he opened his defence.

Elizabeth Scheib deposed she knew the defendant. Considered he was acting as a friend when in May, 1876, her husband had to go to the Hospital. Put in one crop of oats in May or June, 1876, which was reaped in February last. M'Gregor took possession of this crop when growing in 1876. Mr Turton said he would have to apply for an adjournment te produce two other witnesses. Adjourned to 14th instant.

February 14. Scheib v. M'Gregor—E. Scheib continued— Before defendant interfered with the crop he gave me the document of " 24th August, 1876. Ipromise to be responsible for paddocks," &c. The addition to the authority for witness to collect debts was put in after it was signed at Frankton Hospital. Witness left a space when she signed her name. Was told by plaintiff to sign it. The words in reference to tjie sale of the paddock were not there then. Neither was the stamp or the initials, W. N. S., at bottom of document. The words," this is to certify sale of paddocks," over my name was not in then. Do not know who put them in. Do not think that the initials are Scheib's. Gave the document to M'Gregor. Witness—Letter produced came from the defendant and covered the sale note 18th February, 1877," I have this day sold all right, title and interest of W. N. Scheib in paddocks at Gibbstown. Received by cash .£l2O.—E. Scheib." It was probably used for the purpose stated in letter to get the bailiff out. Gave M'Gregor £SO which witness had been for years saving unknown to her husband to deposit in the Government Savings Bank, Arrow. He kept it himself and gave witness the 1.0. U., saying he would pay better interest than the Bank. Of the £l2O cash mentioned in the document only received two five pound notes in Dunedin. Had reoeived no other consideration for the money. To his Honor—Scheib could not have signed the document after the stamp was put on for it covered part of his signature. Cross-examination continued—Paid Hamilton for the work done and sowing crops. Also paid for fencing. Had no agreement with defendant to put in crops. All this was done with Scheib's money. Never received a single shilling from M'Gregor on account of the oats. Scheib always refused to sell the paddocks. To his Honor—Was in Cromwell when defendant took possession of the crop of oats. It was taken with her consent as she had left Gibbstown. Never intended by it to authorise sale of paddock. His Honor —It is perfectly clear the object was to defeat the bailiff's entry on two occasions, and that the defendant gave his assistance for that purpose. He was not, however, trying the question as to whether the agency disclosed was sufficient authority to sell the paddocks. The value of them was not at issue in the present action only the question of wrongful conversion of oats.

J. Hamilton, who was called, narrowly escaped a fine for non attandauce. He confirmed the evidence given as to ploughing, &c. P. Butel, who received the same caution as the previous witness, knew nothing about reap-

ing, threshing or purchasing the oats. Probably his brother knew the facts. Was not a member of the firm Butel Bros.

Witness rpplied for expenses, but was informed that lie should have made the claim before being sworn—thooe who summoned him were liable.

W. N. Scheib, who was accommodated with a seat in Court, deposed that in 1872 he obtained possession of the paddocks with permission oi the run-holders, Messrs Boyes Bros. On the 4th May, 1876, became very ill and was removed to the Hospital. He signed the document authorising his wife to collect debts and act as his agent. There was no stamp on the document then, nor did he ever afterwards put any writing or initials upon it. His wife and some patients were in the ward when he signed the document. Defendant was not there. Was willing his wife should sell oats but not the paddocks. An extended argument ensued as to the extent of the agency given by the document, but the Court held that it need not enter into any question which affected the actual title to the land.

Witness had a settlement of accounts in March, 1876. Did not owe defendant any money when he was taken to the Hospital, knew of the £SO given by his wife to defendant. Everything done in reference to the paddocks and fencing them was done by orders given to his wife.

Cross-examined—Remember seeing defendant at the Hospital on 12th January, 1877, at Race time. Was certain of this. Never put any stamp or initials upon any document except for sale of threshing machine. Never told either Harvey or Quinn that he had sold the paddocks. Had an understanding to sell the reaping machine to M'Gregor. Gave a receipt. This was to save Goodger, of Cromwell, sacrificing the property. The sale note was dated 6th May, 1876. Was then insensible. The signature was his. Had authorised his wife to settle with Goodger. Received £7l from that sale. Did sell to his brother George but the sale was never completed. To his Honor—Knew that his wife was putting in crops and fencing ground out of moneys received. Ordered her to do so.

After argument between the Court and counsel for the defence, His Honor expressed great doubt as to the correctness of the present form of action. If he had to prove a title to the land he must have something else before him. It was not a question of landlord and tenant.

Another legal argument ensued as to whether plaintiff was not entitled to costs for defendant's defects in pleading, and whether the Act or the Rules made thereunder should be adopted. His Honor thought that the present action was really one of wrong doing. The Rules under the Act making the filing of all defences compulsory five days before trial was, in his opinion, ultra vires. The Act had been introduced to do away with pleadings and yet the judges had decided that a defendant must put in a defence. He was bound to do so in certain cases but not in all. He should allow no costs on technical grounds. As to the case itself it was unprecedented in his remembrance. In the matter of fraud one side appeared as bad as the other. Other things would not bear publication. There was also quite a crop of fradulent bills of sale on both sides. The case was a disgraceful one. The plaintiff had better sue for the value of the oats and for the £SO cash. He had no sympathy with the defence. Mrs Scheib had an authority, he thought, to sell the oats, but not to deal with them as a matter of account; she had acted independently in the matter of Goodger, and was also left to exercise judgment as to cultivating and fencing the paddocks. There was no wrongful conversion. Plaintiff non-suited without costs.

Mr Finn applied for the issue of a fresh summons free of costs, and for the filing in Court of the documents produced. His Honor had no power to interfere with the Government fees, but would order that all papers produced be kept in safe custody. Same v. Enwright—Damages sustained by plaintiff's ejection from certain paddocks at Gibbstown and no use of same. Same counsel.

Mr Turton said that this question hinged upon previous case. The defendant had purchased from M'Gregor. Was Mrs Scheib's authority sufficient to deal with the paddocks, and did she sell them to M'Gregor; and did M'Gregor legally put Enwright into possession of them. His Honor had no doubt that in this case a question of land title would arise. Mr Finn was not of that opinion and referred to some authorities. They were swindled out of their oats and now they were to be swindled out of possession of their paddocks. Considerable legal argument ensued as to the documents produced ; the title of George Scheib under a registered bill of sale ; the facts of possession, and during which Mr Turton said that the defendant had the runholders' sanction to hold the ground. His Honor repeated that, giving the case the most favorable consideration and without going into evidence, the plaintiff must apparently prove a title to the land. The case of costs was again raised. His Honor refused to allow costs upon the technical grounds raised. Case adjourned till next sittings.

February 18th. Re George Barnett.—This case has been frequently before the Court during the last two years. Mr Finn again applied for an order re handing over books and cash in hands of trustees to Mr G. Ludemann, the compounding creditor, who settled with all the others except two.

The Court, as before, refused to grant the order until the other two creditors were paid their 12s 6d in the pound. It also stated that the deed of arrangement produced contained clauses that were likely to lead to much litigation. One of the clauses of the deed was to the effect that the creditors who had signed held themselves liable to pay any other outside creditor who might come in. Costs were given to the trustee (Mr M'Ardell) £5 ss; also professional fee.

Re Scheib and M'Gregor.—Mr Finn applied for a rule nisi to arrest the defendant and hold over in bail for his appearance at the next sittings of the Court to defend the suits taken out against him. The defendant by his counsel, Mr Turton, raised objections and the rule was refused.