RESIDENT MAGISTRATE'S COURT.

Otago Daily Times, Issue 1168, 29 September 1865, Page 5

RESIDENT MAGISTRATE'S COURT.

. > /Thbssdat, 28th September. (Before A. C. Strode, Esq., R.M., and James Fulton, Esq, R.M.) BavsKAu^p.— Tboma* Jones?,, Samael "/ontgomery, Miller Anderson, and John Williams, charged ,witb having .been drunk, were each fined 20*. or iortyeight hours 1 imprisonment. Detaimkg Property.—Mrs Kftlup was charged, on the information of William Rodgers, with detaining property, namely, one bag of flour, of the value of 6s. The defendant did not appear. The complainant's statement was that he-gave the defendant a passage in his boat down the Bay. They both had provision* in the boat, and when she was landed at her place, the complainant's bag of Soar was put ashdre by mistake. The defendant had subsequently admitted that she had the bag of flour, but refused to give it up. An order was made upon the deleudan* to return the bag of flour, or in default to- pay Gs and costs.

A Nuisance.— Henry Srcinraitz was charged, on the information of the Inspector of Nuisances, with neglecting to dean his premises in George street. The defendant stated that he had employed a man to clean the premises, but he had neglected to do so. The defendant wa3 fined 10s and costs. CHABGE OF ASSAULT. r Joseph: Hafenegger was charged, on the information of his wife, Margaret Hafenegger, with assaulting and beating her in Stafford street, on Saturday last. The defendant admitted the assault, but pleaded provocation, aud said he was quite willing | to be bound over to keep the pc ice, if hiu wife was bound over also, or to give his wife 3 separate maintainance. The complainant said she did not want, a separate maintainance ; she wished to live with her lui3band and family, if he would not beat her. She stated that on Saturday the defendant abused her, beat her with a stick, and put her out of the house. She slept in a shed for three nights, as her bu-band would not allow her to come into the house. The defendant called a witness, who stated that he wa3 in the defendant's house on Saturday last. The complainant bad been drinking, and took her children out into a shed. The defendant went out to bring in his children and put them to I bed. When he returned throng «the back door with one of the children, the witness heard a smash, and a large iron crucible fell at the door! It must have been thrown by the complainant, becau?e she was tiie only person in the shed behind the house at the time. The complainant followed her husband into the room and offered to fight him, and upon his declining to do so, she took a glass ornament from the mantlepiece and threw it at him. The witness had known the defendant far six years. He was a very peaceable man, but hh wife was frequently drunk. Mr Strode sail the Bench was ii.cliued to think that the complainant had brought any abu-e which the might have received upon herselt by her very intemperate conduct, a.id, consequently, the case would be dismissed.— Margaret ILiienegger was then churned on the information of Johanna Young, with having used profane and obscene language in Stafford street, on Sunduy, the 24th instant. Several witnesses were eximined, aj'l the case fully proved. The defendant was fined 10a and costs, or 48 hours' imprisonment.

John Daniels, auctioneer, was charged on the information of John Hughe*, with assaulting and beating him, while in the execntion of his duty as bailiff, in Maclaurgan street, on Saturda}', the 23rd init. IMr Haggitt appeared lor the complainant, and Mr Kenyon for the defendant

Mr Haggitt, in sating his eigp, said the estate of Messrs Key and Birwjck was placed ti'ider compulsory sequestration; and Messrs Davie and Turnbull were appointed interim-sequsstratorß. Acting under this nuthority, they took possession of the furniture and efFects of Messrs Key and Berwick, contained in an iiphol-tery waiehouse in Maclaggin ttreet, and placed the complainant and two or three other baiiifls in charge of it. On Saturday last, Mr Daniels, acting upon same imaginary c'aim which he had upon this furniture, went to the warehouse, accompanied by some twenty or thirty men, and about a dozen cxpr. ss waggons, forced their way into the premises, r;nd commenced to remove the furniture by force, placing it,in their express waggctiH and carting it away. The man who was in charge of the warehouse, sent information of what was going on to the complainant. He came up immediately with what force he Ciuld collect on the road, and told the defendant and his men to desist. The defendant refused'to do so, and in a struggle'which ensued between the complainant and the defendant (or apiece of the furniture, a lirge pit-ce of moulding came off, and the defendant at OJ'ce; used it. striking the complainant a blow over the shouldcz, and continuing to strike at him until h- was arrested by a detectire.. He held that the complainant was acting strictly in accordance with his duty to IIOH th? furniture against all-comers on behalf of. hi 3 employers ; and that he was justified iv using any amount of force to repel force. If he proved the facts which he hn'J staged, he hoped that the Bench would,; inflict a punishmtnt severe enough to deter persons in future from taking the law. into their own hands, as had beendsne by the def.ndant iii this cass. .

John Hughes : I am a b^iliflg and am in charge of certain premises in M <elag^an street, belonging fo the firm of Key and Berwick,under the authority which I produce from ifee ioterim-sequestrators. I was there on' Saturday Wt. and skw the defendant there. "When I first saw him he was 'running about amflQgst the crowl which was collected, saying that he would knock any person's bead off'who would not allow him to have bis furniture.I''He »«s engaged rr;Hiovi'ng goods which were in my charge uvider this authority, and placing them ia Mr Baraett's store on the' opposite side of. the street. - I placed; Wen to atop, the removal of the furniture, and I then told Mr Danjelf that he was doing wrong, and if he diji not desist, I wouUl"us& force to ccnpol him. I had, at that moment, hold of a wardrobe' wbich;)h6;' was jetviovlhg, and a large piece of moulding oame:dff the wariiI robe in Mr- I)kniels*B hadd: ;He raised it, 1 and; attempted to' st'rittf: me on' the-htad j witii it, but I fell down to evade the blow, i hut it fell oa my shoulder. He raised the stick again to strike me, but I closed with hir.n, guarding my head with my left arm, and struck him a Wow on the eye with my

'right fist. (Mr Strode : O ! yes, in the usual way. A laugh.) Cross-examined byMrKenyon: Messrs Davie and Turnbull gave me this authority, and told me to hold the goods belonging to Messrs Key and Berwick. I firsf went to the premises about three weeks ago, and found there a man who said he was iv possession for Mr Daniels. There were two men there. The second one did not tell me wbo he was in possession for, but I understood that they were both in for Mr Daniels.

MrHaggitt: I submit that my friend cannot go into facts which occurred three wteka previous to the day of the assault. Mr Kenjon : I am merely asking these questions to show that the bailiff was exceeding his-duty, and had no right to be where he was. Mr Strode: It is competent for you to go back to circumstances which led to the assault. Cross-examination continued: One of the men I found on the premises tuld me that he was there for Mr Daniels, and had authority to hold the goods. I placed my men in possession notwithstanding. There was a sale of this furniture advertised. Mr Haggitt again repeated his objection to this line of cross-examination. Mr Kenyon: I wish to show that Mr Daniels was in lawful possession of these goods Mr Strode: And that the first interference which led to this assault was on the part of the bailiff. You can-do so. Cross-examination continued : I cannot tell yon who issued the advertisement for the sale, but a sale of these goods was attempted abomt three or four weeks ago, and by my aathority the removal of the ] goods was then prevented. From the i first day I went iuto- posses^ion until the day of the assault, Mr Daniels's men were also in possession, a 9 well aa my men. Neither I nor ray. men had tha key of the premises, and I, never saw it. On the day of the assault, when.l saw Mr Daniels, he was assisting his men to remove a wardrobe into the street. Before the piece of moulding came off the wardrobe I had not touched or assaulted Mr D.iniels in any way. Many persons were much excited, but I was not, as I am accustomed to such scenes. When I took possession of the premises " Cohen, and Co " waa painted over the door, and "Key aad Berwick" had been struck out. I did not strike Mr Daniels before he hit me with the stick, or after the dstecrives arrested him. Detective E. Birt: On Saturday ?jst I was in Maclaggan street, near the^femises of Messrs Key and Berwick, w-J I saw a large body of men and women collected, b'ever^ men were carrying furniture from one- side of the street to the other, and Sheriffs' officers were attempting to take it back again. The men who were carrying the furniture were some of the principal loafers about town, and among the number I saw Mr Daniels. (Laughter.) I do not mean to say that Mr Daniels i 9 one of them, but he was apparently the leader of them. I stood looking on for a short time, until I saw Mr Daniels and the bailiff, Mr Hughes, coming out of the door of the warehouse, having a. hold of one another. Mr Hughes fell, and as soon as he rose again Mr Daniels hit him over the head or shoulder with a stick, very similar to the one produced. (It was a piece of moulding about five feet long and one inch thick.) I then stepped in and arrested Mr Daniels, and Mr Hughes struck him a blow at the moment, I laid my band on him.

Cross-examined by Mr Kenyon: When I first saw Air Daniels, Mr iluphes wrs. pushing him out of the door of the store, and Hughes fell, but I cannot say whether from the effects of a blow or not. I did not see them struggling over a piece of ] furniture, and I cannot say where Mr | Daniels got the stuk with which he struck Mr Hughes. Simultaneously with my arrest of Mr Dauiels, Mr Hughes struck, j him a blow. I endeavored to pull Mr-1 Daniels back out of the crowd, because a. number of aien were endeavoring to hit him., j He asked me to go with him ioto. a house i until he could get a cab to go to the j Station, but such a number of men were Dressing round him, I had to pay thai ! unless he came with me at once, I could not protect him from the crowd, ' \

Detective James Itowley, who .. was in conipanyjwith the last witness, corroborated his evidence.

David Asher, a furniture dealer, in Maclaggan street, proved nothing beyond having seen a crowd collected, a. number of raea carrying furniture out.of-the store, and others attempting to take it back again. Mr Daniels was running about like a madman, flourishing tbe leg of a chair, ami apparently striking about him indiscriminately, for he struck one of the men who was assisting him over the head. Thomas Gordon : I am. a saddler. On Saturday last I was going up Maclaggaa street, and saw a crowd collected, and a number of persons carrying furniture across the street. I aaw. both Mr Hughes and Mr Daniels there. They were talking , but I could not hear- what was said. X then saw Mr Daniels hit; Mr Hughes w'.th a stick. I am sure Mr Hugh's did not strike Mr Daniels before that Mr Dar neb made an attempt to. strike Mr Hug'jes a second time, when a detective can)' j up, iiud I heard Mir Hughes, give Mr 'SJauujls ioto custody. Thomas Kibble, a bricklayer, g.-ive evi-. dence similar to that of the previous witness. Mr Haggitfr asked leave to. -ameiMlithe information by striking out the -words, " While in the execution of Iris dyty as a bailiff." This, was agreed to, and the words, struck, out. This finished the case. Mr Kenyon, ia opening the dsfence, said the facts were these. Mes*s Key and Berwick, furniture, dealers ia. Maclaggan street, agreed with Messrs. Cohen aud Daniels, to sell to them the; whole of tbeir stock of furniture. He Krould put in a pale note, and Mr Cohen would prove that tho sale, was a lona fids transaction; and that at the time of the purchase, it was agreed that po/session, of the premises, should be given to Messrs Cohen asd Daniels, up to the 27th of lhe following month, at which time the tenancy of Messrs Key »nd Berwick expired. Immediately after the purchase, "Key and Berwick" was struck irom^orcr the door, : and. '" Cohen, and Co" substituted. Possessioa of the furniture was taken,: by^.Me^sn, Cohen and Daniels, and two men were placed in charge the tame day. The key was handed over on the premises to, Messrs Cohoa and Daniels, and they heid it up to the present moment. A eale of the furniture was advertised, as tb,e. only way of

making it a profitable speculation was by an immediate fale. They attempted t» bold the sale; bat previous to that time, an order for the sequestration of the estate of Key and Berwick, on the petition of certain creditors, had been'obtained. Under such an order, tbeiuterim-sequeetratora had a right to take possession of anything which belonged to the insolventa* but in exercising that authority they should be very cautious to tske possession only of what really did belong to the insolvent. But in this case they had ■ taken possessfeft of furniture which had been purchased by Messrs Cohen and Daniels, although they found men in possession of the premises, who told them that the goods bePanged to- Messrs Cohen* and Daniels. The* case way-one of great public importance,, because if interimsequestrators were to-be permitted to enter upon any premises, and take possession of whatever they thought proper, there would be an end to all law and order,, and would* result in endless litigation. •■. The title toremove the furniture-might have been disputed in a lawful manner, but tiie courser tor theintcrirn-sequestrators was not to use force. The law-was open to them, and the}* might have obtained their remedy. The decision in this case would have a most material bearing upon the action to betaken by interim-sequestrators for the future. A sale of the furniture was advertised, and Mr Daniels attended, but he wasstopped by the bailiffs;, and in order to* savfc a breach of the peace, they wenrnoC forcibly ejected, although they mij;ht have been so. Thesale was simply postponed j Messrs Cohen and Daniels locking up the premise's, leaving their own men in possession, and also leaving in the com--plainant's men, but under protest. In. consequence of certain prooeeoings which were aiterwards taken,.Mr Daniels thought proper to remove his furniture from the store. Ilei went there peaceably, entered!»y the door, which her opened with his own key, and told the parties there that he had come.to remove his own furniture, and that he intended to do so peaceably. After detailing other- circumstances, he said he intended to prove that the first assault was committed ion Mr Daniels.

Henry Cohen: lam in partnership with Mr Daniels in some furniture now lying in premises in Maclaggan street, but nut in . any other transaction. We purchased that iurniture from Messrs Key and Berwick, and I produce the sale note. We alsa made a verbal arrangement that we should hold possession of the premises until the 27th of.this month, at which time the tenancy of Messrs Key and Berwick expired. . We placec\" men in possession the same day, and on the following day I had a man working in the shop, and the name " Cohen aud Co." was put over the door, A sale.of the furniture was advertised and held, but the bailiffa would not permit thegoods to he removed from the premises, and our solicitor, who was presenf,. advisetl" us to stop the sale rather than risk a bieach, of tl\e peace. The plaintiff's men were then in possession.. We protested against their being present, and informed them, that we were the rightful owners of the property. On Saturday last,, when we went to the premises to remove the furniture, my partner and I distinctly ordere<lthat there, should be no breach of the peace. Mr Daniels knocked. at the door i it was opened, and we walked in. Cross-examined by Mr IJnggitt: Wedi3 not get into, the shop by using a key. We gave L 350 for the furniture. At that time 1 held a dishonored bill of Messrs Key and Berwick's, but I was not told that they were indebted to other parties, or that they had a. large over-draft at. the Commercial " Bank. Jtr Kenyon objected to this course o£ cross-examination, and ufter an argument, it was not allowed. Cross-examination continued : Mr Dimiels paid the purchase mqney in gold. I am not aware that Messrs Key and Ber- ; wick pieviously refused to take a cheque. The same furniture h^s been valued since at L 630. They did not tell us that they intended next day toxall a meeting of their ■ creditors and offer them a cask compoai- ■ tion. I was not present on Saturday when ' the assiult was committed; I was inside the store at the time. Re-examined by,Mr Kenyon: The purchase of the furniture was done openly. Mr Daniels and I compeled for it, but weafter'vards joined in the purchase, \ Ed- imd Reave: I am a boot importer in Maclaggan street. On Saturday last I saw a scrimmage in the street outside tho premises of Bijessrs Key and Berwick. I saw a large piece of furniture on the carriage way, and three or four men laid hold ■ of it for the. purpose of carrying it away. Mr Daniels, came acnm from the other • side of tha street, and 3eized hold of the pie ceo! furniture and commenced pulling it irom the men who held it. In doing so : a pieca of moulding came off, and. Mr Hughes rushed up and seized hold of Mr ■': Daniels, who said. tvKeep off, or I wilt " strike, you." Mr Hughes held Mr Daniels " 4 by the collar, and Mr Daniels gave him & piiab. Mr Hughes then rushed at him again, when Mr Daniels raised the piece o£ moulding and hit him. a blow over the shuul !er. Mr Hughes then closed with Diiui^lß, who threw him down, A tall man. -then seized hold of Mr Daniels, but he was also thrown, when Detective Birfc seized hold of Mr Daniels by the arms, and Mr, Hughes struck him a blow on the face. The detective took Mr Daniels through the streets to. the station, although I heard him particularly ask not to be taken, through the streets, but to be taken into a shop to wash.his eye. Cross-examined by Mr Haggitf: 1 did : not answer the advertisement " witnesses - wanttd," William Henry Benlley:, O f n Saturday last, X saw a struggle in Maclaggan jstreet, over a piece of furniture which; men were j. attempting to drag opposite ways. Some .■! person, whose face X could not see, came " forward and pushed, or hit* Mr Daniels, and the moulding of the piece of furniture gave way in Mr Daniels's band, I then '<■'■ .Ba\v Mr Daniels strike, as I thought, ia. J self-defence, Eome person, whom r coald ; not see, for a genexal melee ensued.'' - Joha JEagerty, who was present, stated ; that Mr Hughes struck Mr J>aniels first* Mr Strode: There has been, a large | amount of matter imported into" .this case which has nothing\-whatever to do with i^ but we have allowed it io be so; because it , is satisfaqtQry to know all the ctrcum- \ stances surrcunding' this -ca.se,.mi order to t arrive at who was the actual wrong-doing; t pirty, Thiawas a quarrel which arose ,/ out of the disputed possession of property, and the Bench was of opinion that the , ' defendant had possession of the premise* , ,; and furniture prior to the advent of thfc. M ■■ ' * A

oomplainant, «nd consequently the complainnnt wa3 the wron<."df>er._ On going into these premises and finding that his title to be there whs deputed, it was his duty to have had the matter decided in a court of law. He was of opinion from the tvidence, that Mr 'Daniel* received .a push previous to his striking the complainant, and he .was inclined,to think that after t|>at push, Mr Daniels jva?, to a certain extent, entitle.] to delend himself. As the complainant waa the primary cause of the disturbance, the case would be dismissed. .; There was a cross-action of assault by Mr Daniels ajrainst Mr Hughes and Detective Birt, which was withdrawn. John Hughes was charged with assaulting and beating Henry Cohen, in Madaiggau street, on Saturday last Mr James Smith appeared for the complainsnt, and Mr Haggittfbr the defendant. Mr Smith had opened his case, when the defendant said, that after tbe decision in the last case, he would admit the assault, but he thought he was doing lm duty in protecting the property of those who had placed him in possession. Mr ffmith said he was instructed by his client to say tint after the ftauk admission of his fault by the defendant, the case would be withdrawn.