ACTION AC,A INST A BAILIFF.

New Zealand Herald, Volume XXVI, Issue 9370, 21 May 1889, Page 6

ACTION AC, A INST A BAILIFF.

WATSON V. MILLS. At the R.M. Court yesterday afternoon, before Dr. Giles, R.M., a case Watson v. Bell was called, and it is one which possessed a good deal of interest. It was in reality a case brought by the defendant, in tho above action, S. Mills, against Mr. James Burke, the head bailiff of tho R.M. Court, for wrongful execution of a distress warrant. Dr. Luishley appeared for Samuel Mills, the plaintiff in this action, and Mr. Clendon appeared for Mr. Burke. Dr. Laishley, in opening the case, submitted a quantity of correspondence, copies of which were before His Worship. The subject of the inquiry was in a letter addressed to His Worship by Mr. Napier. it appears that Mills' goods were seized in execution of a distress warrant, and sold before the live days allowed by law had expired. The defendant had tendered the money in satisfaction of tho judgment and costs within the prescribed time, and was informed by Burke that the goods had been sold. He applied for the warrant, but was informed that it had not been returned ; and then he wrote a letter to the Minister of Justice and received a reply. There was one preliminary matter to which he (Dr. Laishley) had to refer. According to the letter from the Minister of J ustiee Mr. Clendon said that could not be evidence. Dr. Laishley said that he only claimed an enquiry. His Worship said that he could only hold the enquiry under the 131 st section of tho R.M. Act. There was no delegation of powers in this matter, it was an enquiry held under the R.M. Act. Dr. Laishley said that the main point was that the goods were removed and sold within live days of the seizure, although the money had been tendered, and the second point was that the applicant said that the warrant under which the goods were seized was signed not only by His Worship, Dr. Giles, but by his predecessor Mr. Serb Smith. Assuming that to be true the warrant under which Burke seized was bad. in other words, he said that the warrant was distinct from the warrant now before the Court. His Worship said that the question seemed to be about the warrant. This was a question of complaint against the bailiff. Dr. Laishley said that the contention was that the warrant under which the goods were seized was a bogus warrant. The complainant had been at a loss and damnified by his goods being illegally sold under their value. His Worship said that as the applicant had interviewed Cabinet Ministers and others he should like to hear evidence. Dr. Laishley then called Samuel Mills, the applicant, who deposed that he was defendant in the case of Watson v. Mills. On the 13th November last, after seven in the evening, he returned to his house, and found Mr. Hargraves there in possession. He said he was a bailiff, and read a warrant to witness. It purported to be a warrant of distress, and witness saw the warrant in the presence of his wife. The signature to the warrant was that of Dr. Giles. He also saw alterations on the warrant, a signature erased, and a date altered. The signature erased was that of Mr. Seth Smith, but he could not speak as to the exact alteration of the date. The alteration of the signature was to the left of and slightly above that of Dr. Giles. The amount of the warrant was for £4 odd. Witness drew the bailiiFs attention to tho alteration in the name on the warrant, and asked was it legal that they could come in again to distrain on the same warrant as altered. The bailiff said he had previously noticed the alterations of the signature and the date, but he believed it to be a legal warrant, as, where there was no satisfaction in the first instance, if signed by another magistrate it would come in again. The warrant produced now he swore positively was not that then shown to him, and he pointed out on the warrant several other reasons to show that the warrant was not the same which had been produced to him. The bailiff said he had taken an inventory, and witness looked over it, but the inventory produced was not it. The bailiff sent him with a letter to Mr. Burke. He asked Mr. Burke if he was going to remain in possession, atid Mr. Burke said yes, that there were plenty of things to levy on. He saw Burke and Walsh next day in Queenstreet, at two o'clock, and spoke to Burke, and gave him a note from Hargraves. Burke told him he had better try and pay the money, and Burke told Walsh he had better get a cart and go up to the house and take the things away. Walsh went away and got a cart, and at four o'clock he started to take the things away, and before they were removed Hargraves told Walsh that as he had come in possession he had better take the warrant, and he handed it to him. Witness did not know where the goods were removed to, but next day, after looking for them, he saw them in Cochrane'** auction mart. On Monday, the 19th of November, he and his father saw Mr. Burke at his office. Witness asked Burke for the things, as his father would pay the money for them, and his father produced the money to pay the debt and costs. He tendered £5 notes out of which the amount (£4 7s) was to be taken, but Burke would not accept it, and said he believed the things were sold. The witness produced an inventory of what had been taken out of his house, and his valuation of them was £17

Is. By Mr. Clendon : He could not swear whether the warrant was written or printed. The only thing he knew of it was the erasures. He was quite certain the names Watson and Mills were on it. He did not complain to Mr. Sboney or any officer of the Court of illegal seizure, and when he brought his action against Burke in January it was allowed to lapse. Some of the goods belonged to his wife. The witness was cross-examined at considerable length. By His Worship : He did not mention the subject of the warrant to Mr. Napier until they found the warrant had not been returned, as they thought up to that time it was legal. When he wrote to the Minister of Justice in February, nothing was said as to the legality of the warrant, and when Mr. Napior came to look for the warrant he found it was mislaid, and he could iiot find it. Win. P. Hargraves deposed to acting as assistant bailiff in November in respect of an execution in a case Watson v. Mills, and entered on the house of Samuel Mills on the lHbli of November. Mr. Mills was rubber astonished, and asked to be allowed to read the warrant. Witness produced the warrant he got from Mr. J as. Burke, and read it to Mills, and ho believed Mills read it also. Mills drew witness's attention to two signatures on tho warrant in the presence of Mrs. Mills, and said it was the old warrant; it could not be right as two magistrates' signatures were to it, and it was a warrant winch had beon in possession before. It was pointed out to him that the signature " Seth Smith" was erased. A warrant was placed in witness's hands, and he was asked whether that was the warrant under which he entered Mills' house. He said he did not think so; it was not the warrant on which he entered Samuel Mills' house. Mr. Burke spoko to him one day in Queenstroet after tho goods had been removed, and asked him whether he was sure as to the two signatures to the warrant. Witness said he was positive. Mr. Burke said "it was impossible, it could not be ;" but witness said, " Vos, there were;" but Mr. Burke suid that Dr. Gilea would never sign another warrant where another Magistrate had signed it. Witness entered into possession on the Tuesday, and on Wednesday the deputy-bailiff (Walsh) came with a cart .v> take the goods away to be sold, and they were taken away. In crossexamination, he swore that he was quite clear that the document produced was not that on which he took possession of Mills' house, and which ho handed to Walsh. Epliraim Mills, father of the defendant in the case Watson v. Mills, deposed to seeing Burke on Saturday morning, with his son, after being at Cochrane's mart, and found that some of the furniture had been sold. Witness placed £6 in his son's hands, and asked him to tondor that to Mr. Burke, to pay the judgment and costs, and asked Mr. Burke to withdraw the bailiff from the goods. Burke said he could not take the money, and asked whose money was that? He declined to take it. Witness warned Mr. Burke to act carefully, and within the law. and .Mr. Burke replied that it waa Walsh's fault, and that he should square it with witness's son. That was after witness had written to the Minister of Justice. When he inquired about the warrant, Mr. Stoney, Clerk of the Court, told him that it could not be found, that it had been abstracted from the pigeon-hole, and the auctioneers admitted not having received the warrant to sell tho goods. At this stage the further hearing of the inquiry wad adjourned until two o'clock today. _____^___