LAW AND POLICE.

New Zealand Herald, Volume XIV, Issue 4747, 2 February 1877, Page 3

LAW AND POLICE.

- -SUPREME COURT.—iKrEquity. Thursday, February 1. [Before Bis Honor Mr. Justice Gillie!.] A special sitting of the Court was held yesterday. His Honor took his seat on the Bench at 11 o'clock. • Me ARTHUR, SHERA, AND CO. . In the matter of John McEffar Shera, plaintiff, and Alexander MoArthur, William MoArthur, and Charles Cookman McMillan, defendants. '"" ■ His Honor, at a-special'sitting of the Court, whioh took place on Friday last, made an order for the'' appointment of a receiver of the partnership estate. The _ names of suitable persons were, by direction of the Court, handed in to the ■Registrar of the Court on Wednesday, who reported the next day that all the names submitted—eight on each side—were names of persons of trust and character,and eligible _ by;.reason.of. their capacity and knowledge. The present,proceeding was -to nominate either by consent of parties or by selection of tho Judge to the office. .:....... . The Attorney-General and Mr. Alexander, instructed by Mr. Buddie, appeared for the plaintiff; Mr. Tyler, instructed by Mr. Devore, for Messrs. W. and A. MoArthur; and Mr. J. B. Russell for Mr. McMillan.

The discussion turned chiefly upon the duties which the receiver would have to discharge, and whether the Court would not, in making the appointment, carry out to the fullest extent possible the terms of the partnership deed—" that the estate ' and interest of the parties in the premises, together with the stock-in-trade, book debts, should be valued and ascertained, and offered in the first place to Alexander McArthur, at the amount of auch valuation; in the event of his declining, to .William McArthur ; next to J. M. Shera; and next to C. C. McMillan on the eame terms."

The Attorney-General: Having gone so far by consent, I presume, your Honor, we may go still further by consent. The names of the persons, any one of whom is fit to be appointed receiver, are now before the Court

His Honor : The Registrar has reported that any one of the persons suggested by the parties would be a fit andproper person, to be appointed as receiver. Unless both.sides should consent to the appointment, it would devolve oh the Court to select one 6f tie names and appoint to the office. The Attorney-General: We might object to some of the names submitted by the defendants.

His Honor : I have gone over the names, and there are a considerable number to which, objections might bo taken. Not, indeed, objections to the, persons themselves, for they are all men of such position that no such objection could be made to them.. But ,1, think in a matter of this kind the person who might be receiver should be acquainted, .with the nature of the business with which, as receiver, he would have to do. For that reason I have reduced the number from sixteen to about three, which, so far as I can see, are entirely unobjectionable. There are several gentlemen named who. may be excellent accountants and men of business generally, but not acquainted with this, particular kind of business. The three gentlemen who appear to me niost eligible are William Graham (who is, I believe, aj partner of Cosgrave and Company), James Chambers (who is sworn to have had a large experience in Manchester warehouses, but who ;is not in that business now, being in an extensive ironmongery establishment). The third name is that of Robert Carr, auctioneer, who is sworn to have had considerable experience in this particular department of trade. In respect to the appointment of eithar of these parties, I should be glad to have the assistance of those who represent the parties. The Attorney-General: I take it that the most fit person if proposed by the party having the conduct of. the proceedings would be appointed.

Mr. J. B. Russell: You will find that Mr. Graham is a draper. It makes a material difference whether the receiver should be in the retail or wholesale trade ; whether such a person has been accustomed to deal in large transactions. Besides, as a retail trader he would have an opportunity, which I think ought not to be afforded, of becoming acquainted with the business of other retail traders who dealt with a large firm like this. Mr. Robert Carr is a Manchester warehouseman. I may euggest to the Court whether it would not be most effectually carryingout the partnership deed to appoint three persons, the third to act in case of difference between the other two. His Honor: The receiver will not be required to value, but having a knowledge of the trade, to supervise such valuation. The Attorney-General: I should object to that. ..••■:■ Mr. Russell i. As a matter of fact, we would prefer one who would be a guardian of the estate. As to. qualification, Mr. Robert Carr has been 13 years a wholesale draper. Mr. Chambers is nominated by Messrs. McArthur. His Honor: And assented to by Mn McMillan. ■ . - The Attorney-General: And we know that Messrs. McArthur and McMillan are acting tqgether._ .... ..._„- —, ' Mr. "Russell: So far as _Mr.. McMillan is concerned his interests in" the matter are identical with those of Mr. Shera. They are both interested: in' obtaining the ! highestj price from Messrs. McArthur, to whom the* , estate under the partnership deed would be first offered. So far as the evidence goes, failing the appointment of Mr. Chambers, Mr. Carr would be the fittest person. Mr. Tyler : So far as the'affidavits go Mr. Chambers has .experience of over 20 years as an accountant.' He' has many times appraised and valued important business estates, and is well qualified to perform the duties of the office. He is at present a member of the firm of Edward Porterand Co.

His Honor : There is nothing in the affidavits to show that Mr. Chambers has any experience of this special kind of business.

Mr. Tyler: Your Honor said just now that the receiver would not have'to" value' himself, but rather to supervise the valuation. That would suggest the inference that the receiver would not have to carry on the business of draper, but to "value and .appraise," to "ascertain ".the interests of the parties, a work' for which Mr. Chambers would appear to be specially competent. The interests of Mr. McMillan as against the defendents were identical with those of the plaintiff (Mr. Shera). ItnMefc, therefore, be obvious that the higher the valuation, the greater would be the interest of Shera and McMillan in the estate. I believe Mr. Graham was before us as third arbitrator in this case, which might have been an objeetion, but he has already been objected to upon the ground of Ms being in the retail trade.

His Honor: Mr. Graham has been until somewhat recently a buyer of this kind of goods in the London market. A buyer would appear to be especially qualified to value the stock-in-trade of such a business as this. As a large buyer, he would certainly know the value of such goods. Mr. Tyler: Mr. Chambers has appraised and valued large and important business estates in London and elsewhere. But, your Honor, I think there is one person, not in business, to whom both sides would assent. The gentleman to whom I refer has been nominated by the other aide. I allude to Mr. Thomas Macffarlane. He holds a perfectly disinterested position. Mr. J. B. Eussell: I would rather press for the appointment of Mr. Carr. 1 think that the office would give the receiver knowledge of the position of every draper in Auckland, and for that reason there was a strong objection to Mr. Grahaia. His Honor : We cannot assrime that any one of the gentlemen suggested would take an unfair advantage of his position. The Attorney-General: We would, on behalf of the plaintiff, consent to the appointment of Mr. Thomas Macffarlane;_ in point of fact, he was nominated by our side. His Honor : In that case let Mr. Thomas Macffarlane be appointed receiver. The Attorney-General: Then I apprehend we can do no more until the hearing. The receiver would proceed at once to collect debts, &c. Mr. Tyler : I apprehend the Court would consider what directions should be given to the receiver, and what security should be given by him,

Mr. Russell; All that appears to us to be something more than a etcp in advance. If your Honor recollects, I suggested on the last day, that the appointment of receiver was not the proper course, but that of valuer according to the partnership deed ; and the receiver was appointed for the purpose of

" winding up the estate in the terms of the deed." I apprehend the receiver would have to value the estate ; no money would pass, and the eetate would be offered at the Valuation to the parties in the order provided by the deed. .. j .-..,.; i -, --. : \ ';,- -, The Attorney-General: Would your Honor think it competent to order the sale of the 'estate before making a decree ? ' ■ Mr. Tyler : y What the learned. AttorneyGeneral now says takes mo somewhat by surprise. I could never have consented to the appointment of receiver, except upon the conditions just, stated by my learned friend Mr. Russell, that the estate would'be offered at the ascertained value to the several partners in the order mentioned. I would, therefore, ask the Court to give directions as to the mode of winding up. His Honor: Upon the appointment of a receiver directions are usually given by the Court—directions to get in debts, to bring actions, too. I think this order should be, "That Mr. ThomasMacffarianebe appointed receiver, with directions to have the goods, property, credits valued at a fair and equitable value, and thereupon to offer the same at such value to the several partners in the order contemplated by the deed of. partnership, and upon the acceptance of the same by any of the said partners, such partner to have the accounts made up, showing the respective interests of the partner after payment of the liabilities of the said partnership, the said receiver to give security for the discharge of his duties.". : The Attorney-General: Your Honor will please to remember that the defendants have sworn th»t the estate is insolvent. The directions you propose would be very proper upon making the decree, but I think not until the cause came to hearing. ■

Hie Honor: I think it is competent for the Court to give_ directions as to the conduct of the- receiver in the meantime, for otherwise he would be placed in a position as a mere protector ; everything would come to a stand. He could do nothing, or if he could he might act in such a way as to injure the estate. He might act with great indiscretion. What security, would you deem sufficient ' for' the' receiver to give ? Would security to the extent of £1000 be sufficient ? Mr. Tyler: That might be left to the Registrar. .4. . .. . , -• .. . N . ■■ ■ Mr.' Alexander: We make' a claim for dealings with' the estate subsequent to the loth December. ;

Mr. Tyler : I presume the business ie to go on. The appointment, no doubt, operates as an injunction against all and each of the partners. ■ ■ ' '''''■ '" : His .Honor: Here.the .partnership has been actually dissolved; there is an end of it. To give the receiver power to carry on the business in "the ordinary way might enable him to do all sorts of things. He might, to suppose a case, take bad bills, for instauce, and do other things not to the' advantage of the concern. The paramount idea should be the winding up of the estate to the best advantage of all the partners, having a due regard to the interests of each one. Mr. J. B. Russell: The interests of Mr. McMillaß;are the same .as those of [Mr. Shera in this case.

His Honor : Not necessarily so. It were possible that Mr. McMillan might make his' own arrangements and go in with the defendants. ... _..

Mr. Rnesell: That is possible, but not probable. It would be great loss to have a large business like this shut up for six weeks. His Honor : Nine or ten days onght to be sufficient to do everything necessary. The public interest shall not suffer by my absence. I shall be" within reach when required. If the books are in anything like good, keeping the position of .the - estate should be ascertained within a day or' two. i

Mr. Russell': I am informed that they have been so well kept that any., accountant could go in and ascertain the position of the affair in even a day. His Honor: I should have expected nothing else from so respectable a firm. Let the order go as I have suggested. Ordered accordingly. THE TRUSTEE ACT, 1850.

In the matter of the petition of J. S. Macfarlane, Patrick Comisky, and C. E. K. Ferguson. This was a petition to be appointed the trustees of certain partnership lands, and included the interest of Patrick Joseph Kelly, -deceased, for the devisee (an infant) under his will. Mr. Hesketh made the application at a previous sitting. His Honor said he had looked through the authorities, and found ho had the power to make the order, but it was usual to do so upon the declaration of a trustee.' Ordered accordingly. . ■ •' . ; ' . ♦ ■■■ RESIDENT MAGISTRATE'S COURT.— Thursday. [Before E. C. Barstow, Esq., E.M.I ■ ..; Judgment for Plaintiffs, david port v. Hugh reid. , ,' Claim, goods, £1 9s ; costs, 14s. JAMES E. GILBERT V. JOHN C. WOOD. Claim, rent, £4 10i ; costs, 14s. AUCKLAND HARBOUR; BOARD, V. OWEN' COMMONS. Claim, rent, £5153; costs, £1 4s 6d. Mr. Devore for plaintiff. AUCKLAND HAKBOUR . BOARD V. ROBT. CASHMORE. ' Claim, rent, £8 10»; coets, £1 19s. AUCKLAND HARBOUR BOARD V. EDWARD I ;.> . • ,' combes. ■ '■ - " •■ Claim, rent, £10 ; costs, £1 19s. • Defended Cases. :•• > William olliver v. ryan bell and co. \ Claim, troTer, £14_7s 6d. Mr. Dufaur for the plaintiff. Mr. Rees for the defendants. The particulars of this case have already been published, when the plaintiff had been nonsuited. , : ::' ■' ■ ':■ . • : ■.' ''■■■ -'•■■■■ •'

Fred. Bolton deposed to the goods of Mr. Olliver having been seized'uuler instructions from the defendants. Tan gopda had been sent to witness to' be sold on commission. The commission had not been agreed upon. No invoice had been sent with the goods. The money for them was. to be sent to plaintiff. • Witness purchased gum ' with money which he had received for some tobacco belonging to "plaintiff. The gum would have been the property, of . witness, but witness 'w'ould'have been that plaintiff was paid.. His Worship said the. fact was that in all these cases no money passed between the parties. All transactions were by barter. The witness said that with the tobacco he had purchased native produce for his.. own., consumption. ; Defendants had, popped on witness like a cat on a mouse. Witness had not told plaintiff that there was a bill of sale over his goods. He did not suppose that Mr. Oliver would have sent the goods if he had. -~-,■:. ~1 George Bennett, who had taken possession of the property of the last witness, was examined, and deposed, that' Bolton had informed him that the goods, the subject of the_ present action,' were the property of plaintiff. Witness ' .had mentioned the matter to defendants. Defendants had instructed witness to take possession of everything in the place. Chief Paul, of Orakci, was examined (Mr. Richard De Thierry acting as interpreter).The witness deposed to. having sold to defendants the land upon which the hotel stands, in which the goods were. He had asked £100, but: had accepted £25, because he had been told by plaintiff that he" (witness) would get into trouble if he did not sell it.

William Gregory Clark, surveyor,, deposed that he had heard Air. Bel], one of the defendants, say that he would return the plaintiff his goods. Mr. Rees applied for: a nonsuit at the close of plaintiff s case.

His Worship nonsuited the plaintiff, with costs, £1 lls..

THOMAS FENTON V. ANDREW LARDER. Claim,.damages, £2, Mr. Bees appeared for defendant. The claim was for cutting off a number of-branches from peach trees, aijd destroying cabbages by throwing thobranehes upon them. This had been done by defendant's wife and son.

Plaintiff's landlord deposed that the trees had been cut some time ago to prevent them from overhanging the defendant's land. The trees had now been cut inside his fence. Ahundred peaches must have been destroyed. The cabbages were lit for cutting. The defendant deposed that the branches had been cut only whero they where overhanging his placo. Mrs. Larder gave similar evidence. William Edwards, a neighbour, deposed that no more had been cut than was necessary. The cabbages were only sprouts. His Worship gave judgment for defondant, with costs, £1 3s 6d. Judgment Summonses. 7bancis shepherd v. Theodore o. walker. In this paso an order was made for pavment, by monthly instalments of 20s oaoh. In default, imprisonment for four weeks. Mr. Devore appeared for plaintiff.

WILLIAM M. MOYLE V. JOHN H. LEERY. The defendant was ordered to pay 30s per month. In default, two months impruon..ment. Mr. Devore appeared for plaintiff. Cases Adjourned. ' "", George hulme v. William runston. Claim, goods, £2 7s 6d. Adjourned till the 15th inst. - Mr. Rees for plaintiff. RICHARD DICKSON V. AUCKLAND HARBOUR BOARD. Claim, work, £16 16s;' Mr. Rees appeared for plaintiff. In the absence of Mr. Hesketh, the case was adjourned till next Court day. POLICE COURT.—Wednesday. [Before A. Beetham and J. Newman, Fsqs., Jnaticw.] "Dru2»ken>-ess.—One' inebriate was disposed of in the ordinary manner. Vagrant Act.—George Martin (a man of colour) and John Black, were charged with a breach of this Act, by creating a disturbance in Queen-street. Black pleaded guilty and' Martin 'not guilty.'' The evidence of Constable Moulden having been taken, his Worshiji considered the charge proved and each delinquent was ordered to pay a fine of 20s and costs, or in default to undergo 48 hours' imprisonment with hard labour. Robert Sullivan for a similar breach of the same Act, was punished in a like manner. Alleged FRAUD.—John Thos. W. Dyson was charged with that he did on the 30th day of December, 1876, Albert, unlawfully and knowingly by certain false pretences obtain the signature of the said Wright Lindsey to a certain valuation security, to wit, a receipt for the payment of the sum of £400 with intent to cheat anddefraud thereby the said Wright Lind sey contrary to the form of law' and statute provided. Sub-Inspector Pardy stated thefacts of the case, which were • essentially the same as those published in our last issue. The horse, saddle, and bridle obtained from Mr. Quick had hot yet been recovered and therefore a remand until Wednesday next was applied for and granted. Assault.—William Egerton, who presented to the Court a countenance bearing evidence of recent disfiguration, was charged.with assaulting William Patua (a Maori) by striking him on the head with "a tin billy." Mr. Joy appeared for the prisoner and asked that the case might be withdrawn. The complainant's consent to this course of action had been gained and the prisoner was willing to bear the costs' of the case. The evidence of Constable Sampson having been taken, the case was dismissed, Egerton paying the costs. 1 - ■' ■'' - This was all the business. Thursday. (Before G. S. Graham and J. Wlllcox, Esqs., Jus- ■ ■*. •.; ... .-. tlcea.) ■ ■ • ;: ■ . ■: ■ Drunkenness.—One person was punished in the ordinary way. Drunk and Disorderly.—Samuel Butcher and Kichard Hartley pleaded guilty to having acted in a disorderly manner while under the influence of drink, nnd were each ordered to pay a fine of 10s and costs,. or undergo a' sentence of 48 hours imprisonment with hard labour.

Alleged Burglary.—-Aubrey Fitzgerald was charged with feloniously breaking and entering the dwelling house of Joseph Woods ; in the Cabbage Tree Swamp Road with intent to commit a felony. On the application, of Sub-Inspector Tardy the case was re- : rnanded till Tuesday next. Obtaining Money . Under False Pretbncbs.— William Rose was charged .on remand with, obtaining by false - pretences on the 18th January the sum of £10 from. L. D. ;Nathan, and, Co. Edward Lewis was called and deposed he was in the employ of Messrs. L. D. Nathan and Co. and knew the prisoner who came to the store on, the 12th inst. and introduced- himself to witness as a servant of Mr. John Gibson, of Patea, and referred to L. D. Nathan and Co. not having executed an order of Mr. Gibson's for ono case of tobacco. ■ The prisoner selected a a number of goods on Mr. Gibson's account to the value 61 about £250. After this transaction he called one day and asked if the firm-would cash an orderof his on Mr. Gibson for £10. Witness referred him to the cashier and recommended Mr. Nathan to pay the money on that gentleman asking him if it would be right to do so. Witness had truly believed the prisoner's statement that he was a confidential servant of Mr. Gibson. Lawrence David Nathan, partner in the firm of L. D. Nathan and Co., also gave evidence. Henry William Sinell, bookkeeper at Messrs L. D. Nathan and Co.'s deposed as to filling out the cheque (produced) at Mr. Nathan's direction and giving it to' the prisoner in ex-. change' for'an order for £10 on Mr. Gibson of Patea. Goorge Augnstns Burgess, ledgerkeeper at the Bank of New Zealand, Auckland, deposed that the cheque (produced) was presented to him in the course of business and duly honoured. John Gibson deposed that be carried, on the business of a general storekeeper at Patea in the provincial district ' of Taranaki. He knew the prisoner who had had been in his employ as bookkeeper for 19 weeks the connection terminating on the 23rd December without witness having received any notice whatever. He had no authority from witness to purchase goods from Messrs. L, D. Nathan and Co., or any one else, neither had he any authority to issue orders on witness f,>r money. To prisoner: There is a balance of £16 to your credit in my books. The depositions having been read dyer to the prisoner, he reserved his defence. He was then charged with having obtained by false pretences goods to the value of £10212s 5d from C.C. McMillan, of the firm of Wm. McArthur and Co. Alexander Campbell, a salesman in the employ of Win. McArthur.and Co., deposed that he knew the prisoner by sight.. He came; to the warehouse oh Friday, the 12fch . January, and introduced himself to witness as" having been deputed by Mr. Gibson,' of Pateaji, to purchase goods for him. ■ The firm hadbeen in the habit of doing business with Mr. Gibson. ' The prisoner said that having learnt that a change had taken place in the firm he was.not at liberty to do business with them until he had first telegraphed to Mr. Gibson. He then wentr He returned the next morning, opened his book and commenced business. No reference being made to Mr. Gibson witness presumed that he had telegraphed and received a favourable reply.. Prisoner selected goods in Witness's' department—the Manchester department—to the value of £350 or £360. t With the exception of a piece of silk which was to be sent to the,' Albert Hotel for him, the whole of the goods iwere sent to the packing department of the firm. The black silk produced is the piece alluded to. Charles Orokman McMillan, member of the firm of WinrMcArthnr and Co., deposed that the prisoner -was introduced to .him by tiie Inst witness on or about the 12th January. Ho said he was a buyer for Mr. Gibson of Patea. Iβ consequence of the representations made to him witness ordered the prisoner to be supplied with whatever he "■wanted. John. Banbury, a salesman in the employ of William McArthur and Co., deposed that the prisoner was introduced to him, at the warehouse, on the 17th January, aa a_ ' purchaser for Mr. Gibflo-n, "~bf "Patea, and selected a quantity of goods for that gentleman. The pair of boots (produced) he ordered to be sent direct to the Albert Hotel for hie personal use. William Caley, check clerk in '.the employ of William McArthur and Co., deposed that the invoico, (produced) witness had made out. The prisoner purchased about £367 worth of goods, which were checked over by witness previous to being packed by the packer. A portion of them 1 were actually packed—three cases. With the exception of three items, all the articles enumerated in the invoice (produced) were packed in three cases. The three unpacked articles—a coat and vest, a pair of boots, and a piece of silk, were sent to the Albert Hotel, at prisoner's direction. The cases were handed over to a carter, who said he was to take them to the ketch Wild Duck,' at Onehunga. Their value, inclusive of those sent to the hotel, was £162 12s sd. The other goods were to be packed and sent to the same place. James Walter Waller,' member of the firm of Waller and Garlick, shipping agents, Onehunga, deposed that the prisoner came to his residence one Sunday in January for the purpose of making arrangements for the shipping of some goods to Patea, Wanganui, where, ho said, he was going to start in business. At witness's request, the arrangements were deferred to the following day—Monday, on which occasion the matter was merely talked over. On Thursday witness engaged to have goods conveyed for the prisoner by tho Wild Duck direct to Wanganui. Prisoner gave witness a list of the goods. They were to come from Clark and Sons, Brown, Barrett, and Co.; Barnett and Levy, Balliu Brothers, Lewis Brothers, Close Brothers, L. D. Nathan and Co., and Wm, McArthur and Co. Prisoner gave witness an order for the removal of the goods, which was handed to the carter, who was instructed to convey

them to Onehunga. The three cases were subsequently returned to Wm. McArthnr and Co. Robert Patrick Purcell, carter, in the employ of Waller and Garlick, gave evidence as to carting three .cases from Wm. -McArthnr and Co.'e- , warehouse, at Auckland, to Onehunga. Fanny Wnite deposed that (the resided with her mother at the Scotia Hotel, Hobson-street. She knew the prisoner, who had occasionally visited their houso. About -the middle of last month the prisoner presented her .with a piece of black suk similar to that produced. A_few days afterwards she heard that it had not been come by honestly, and she accordingly sent it : back to McArthnr and Co.'b warehouse. John Gibson r-ive evidence similar to that he had given in the previous case. Detective Jeffrey deposed aa to arresting the prisoner. This being the case for the prosecution, the whole of the evidence was read over to the prisoner. He reserved his defence.—Rose was then further charged with having obtained, on the 18th January, from O. C. McMillan, by false pretences, the sum of £12.. Charles Cookman McMillan deposed that about the middle of last month, and some time alter prisoner had been introduced to witness, he came to the warehouse in Queenstreet, and saying he was short of money, asked for an advance of £12. Prisoner ottered to give an order on Mr. Gibson, of Patea, for the money, but witness said it did not matter, he •ould debit the amount to Mr. Gibson. Witness then gave him a cheque for £12. William John Caverhill, teller at the Bank of Australasia at Auckland, deposed as to cashing the cheque (produced) on its being presented' to him. John Gibson also gave evidence. The depositions were read' over to the prisoner, and as in the previous cases he reservedhia defence. Their worships duly committed the prisoner on each of the three charges, to take his trial at the next criminal sessions of the Supreme Court. • ONEHUNGAR.M. COURT.—Wednesday. . ; IBefore R: C. BarstoW; Esq.', B.M.J : Wharf Regulations.—Mr. Hayres pleaded guilty to a charge of not dismounting and leading his horse down the wharf, and was Sned 2s. Gd., and ss. 6d. costs. Damage to Fencing.— McKenzie v. Potterton.—This was an action for four chains of fencing, alleged to have been destroyed by defendant, who was, the occupier of the property/' Mr: Dufaur appeared for the defendant—plaintiff being only agent and having no authority, was nonsuited, and ordered to pay £2 7s. costs. - ■..••■:;..-•