RESIDENT MAGISTRATE'S COURT.

Poverty Bay Herald, Volume VI, Issue 892, 17 September 1879, Page 2

RESIDENT MAGISTRATE'S COURT.

(Before Hia Worship the Mayor, and Captain Gudgeon, R.M.) FORCIBLE ENTRY. Examination of A. Walker continued : Kiny intimated me to leave, as it would be all the better for me if I went out quietly. I then took the hint of Mr. Crawford that we had better pjirt, and we had a parting glass. He did not quote Shakespeare, " stand not upon the order of your going, but go." I took the books, to which there was no objec tion, and went out. I thou :ht it w.is best not to resist the number of men there. Since then Messrs. D. Crawford, J. King, . Roe, Score, Feary, and Alexander, have been there m possession from time to time. The place has still been kept closed. Cross-examined by Mr. Braseey : To the best of my belief I signed the bill of sale" and li-ase on the same day. If Mr. Humphries said it was not signed the same day I would not be prepared to deny it. I refused to sign the bill of sale until the lease was prepared. I read the contents and the covenants m it to the effect that on demand a sum of £800 shall be paid, failing which the mortgagees could break m if necessary, and enter and occupy the premises, seize and take m possession any or all of the contents. I believe under the bill of sale they had power to enter m and remove any goods. Previous to my bankruptcy, the bailiff was put m for rent. 1 filed the declaration on Saturday, 23rd August, giving Mr. Cuff instructions at 12 o'clock that day, and I signed it about 2 o'clock of that day when Mr. Cuff came down. Mr. Gruner came down after Mr. Cuff. The newspaper had not been issued when Gruner uame-down, and the notice of the filing was not gazetted. T was m the Hotel when Gruner came down, and Henderson was outside. 1 did not hear Gruner tell him to act as bailiff for the provisional trustee. I ascertained it from Gruner after this. I can't exactly say how long after this that Mr. Graham came down. Gruner did not tell me any particulars, but simply that he had put Henderson m possession. It was the action of Crawford and Graham that placed me m that position, and caused me to file. Henderson has uot paid for his "board and lodging, but I have charged him with it ; also Feary. I handed Feary. over the money every evening. Groceries and spirits I got chiefly from Graham, for which I paid. Feary ordered some goods also. Feary paid the servants wages for one week. Henderson never demanded from me the books or day's takings up to the time I got the authority from Ratcliffe. This authority from Ratcliffe did not authorise me to take possession of the premises, but only the furniture. Mr. Henderson was claiming the goods. X knew that Graham and Crawford were there under the bill of sale as well as Hendernon. T did not tell Mr. Crawford when he put the bailiff m that there was no rent due. I made no objection to the bailiff beina m and it was not until after the declaration that I hunted up the accounts for the rent. When Mr. Graham came down I did not tell him that Mr. Grnner had put the bailiff m possession for the provisional trustee. I know the Shamrock, for which I owed rent and settled for by' bills payable by John Dick for purchase and accepted by Mr. Crawford. Messrs Graham and Crawford name m quietly. They were let. m, and there was no noise. They flirt not. pnt hands upon me, nor even shake hands with me. They asked me to go out, and I went. I asked' for the books and they did not object ■ There wna no excitement at that time. T was then pretty well all over. Whan the others came they were not m aiv>b, they dropped in' quietly. The only noise they made was m shutting the doors and nailincr the windows. I saw a scuffle at the back door. I sa\r Henderson trying tn get m. and they forced him back. There were noiocks or windows broken, or blows struck. I was mno wise terrified. I felt I would have been carred out if I did not go. I was not afraid so long as T, did not resist.. I waited for another invitatat.ion to leave. They gave me another and I left, knowing it was of no use stopping. Until I had the written authority the license had not b«en transferred. 1 kept an account for Mr. Graham of th^ proceeds I did not pay to Feary. J. Henderson, and Feary, were m possession of the hotel up to the Hth. The amount of rent claimed hv Henderson on account of Crawford and Graham was £165. He remained m until Saturday, the 23rd. I think Henderson got written instructions from Gruner. Feary was m the bar from 28th to the 2nd. I consider I was m charge of the hotel, even though Feary was m charge of the bar. John G. Henderson deposed : 1 reside m Gisborne. I have seen the defendants. . All of them were at the Turanganui Hotel on Thursday last, the 23rd. I know Gruner who employed me to distrain' for rent, and had his authority. I entered m pursuance of those powers. 1 remained there till Saturday on which day Gruner came down and instructed me to remain there *

on behalf of the provisional trustee, Mr. Walker having tiled. I accepted that position, and after that until the following Wednesday, remained m possession. On that Wednesday Gruner and Ratcliffe came down together. I was appointed by Ratcliffe to hold possession for him as trustee. I remained m possession until Thursday. On that day about dinner time Messrs. Roe, King, Whitby, D. Crawford, and Score came down. Score is m the employ of Graham, and Whitby and D. Crawford m the employ of Crawford. They came m some m the front bar and some m thq passage. They asked me to have a liquor which I had. There was some talk about bagatelle with Mr. Roe whom I challenged. We went to the room detached from the Hotel, and commenced playing a game, but before it was finished Mr. Roe left, and then Mr. | Whitby took up the game. Before it was finished Whitby asked me to come into the bar and get the drink we were playing for. Mr. King locked the door and put the key m his pocket. I went round and tried to get into the door of the main building and found it locked. I saw it was King's intention to keep me out, and I asked his authority for acting m this manner. He produced a paper signed by Crawford and Graham. I said I could not help it. I thought -I should get mif I got the liquoi I won at bagatelles. I asked for it, and they said "you may have that," Jsut they would not open the door. They ""passed it out through a broken pane ' m the door. Some little time after the waite- Hughy was coming out, and as he did so I tried to get m, but Messrs. King and T>. Crawford pushed back, the door and locked it. I got my foot partly m but did not succeed. I stayed there all night, and on the Friday I retired. I am certain if I .got 'in I would be resisted. Mr. King told me if I got m he would throw me out of the upstairs window. I was on the roof trying to get m. At last under Ratcliffe's order I desisted. I have frequently passed the place and have seen Crawford there. By Mr. Bogan : When I 6rst went there I was bailiff for Graham and Crawford. 1 .-saw Feary m the bar taking the money. Mr. Walker did not account to me for the takings." I took" a" back seat. For Feary was looking after the hotel. Graham and Crawford put me m. On Saturday, Gruner told me to stay m. My opinion is that I was m for Gruner. I, w.ould.no't object to be paid by Crawford and Graham for service. I saw the defendants m the, house, but don't know how they came. Whitby was the man who shoiited.' Most of my time was spent betweeri the bar and bagatelle-room. There was not a hand put upon me. I did not send for Ratcliffe before I got the second drink. It was all done m a goodhumbred manner. I saw the cook inside, and the waiter the next day, both on the premies going about their usual work, t was oii the roof of the back premises shortly after when King told me he would throw me out of the window. I pottered about the place and m the evening asked for a blanket and got one, and some matting, and I had meals passed out of the hole m the door, also liquor. After this I did not go to roost m a very appropriate place — the fowl-house. I did not coil up" on the hen coop. I slept on the verandah on Thursday, and on the hay-loft on Friday night. . by the Bench : When the defendants came into the hotel I had no suspicions. f They said they were electioneering. Elliot Gruner, deposed : I am bailiff to the Resident Magistrate's Court and was employed by Crawford to restrain for rent. I wrote out two warrants and employed Mr Henderson, and took possession of the furniture only, and not the bar. I remember Walker filing on Saturday, the 23rd August. On that date I went down and took possession of the bar under the 55th Sec. of the Act. I left Mr Walker m possession and instructed him to account for the takings till a trustee was appointed. Mr Henderson remained on the premises until the following Monday, when I was instructed by Mr Crawford to withdraw him. I then appointed him as my bailiff. On the following. Wednesday Ratcliffe was appointed trustee, to' whom I handed over possession of all Walker's estate under bankruptcy. Cross-examined by Mr Brassey : When I went down to withdraw Henderson I saw Feary m possession. On Monday after I was withdrawn for rent, I came m possession of the whole as provisional trustee, and held it up to the time I handed it to Mr Ratcliffe on the Wednesday. This concluded the case for the prose* cution. Mr Rogan said he would nat call any witnesses for the defence, and stated if the Bench considered from the evidence tint a case had been made out, he would proceed to address them on various points of law involved, and produce authorities giving a definition of forcible entry. Capfc. Gudgeon said that he was of opinion that a case had been made out. Mr Rogan, addressing the Bench, said that this was the most trumpery case heard of or read about by him. There was no forcible entry, and even though there was it was clear that neither Messrs. Crawford or Graham were concerned m it. To constitute the. offence the defendants were charged' vith, there should be actual force, violence, and terror, of which there were lone. Everything was done m a most good humoured manner, and the whole <f the evidence went to show this. Tnder documents produced m the (ourfc, Messrs. Graham and Crawford fod power to take possession, and m Oin«if so they might employ one bailiff q fifty if they wished. Not only had ijey power to take possession, but to wnain on the premises twelve months ij necessary. The bill of sale alone \|i>ld put aside the charge for forcible ejtry if proved. Supposing any forcible ejtry proved, which had not been done, tfey had perfect justification m occuptng their own property. He .contided that the property could not be ctmed by the trustee m bankruptcy iijsniuch as the lease had not been raiatered. Until registered the propity had not passed into his possession. UQer the 55th section of the Land Tjnsfer Act it was imperative that the le e should be registered. Then again, thy had a statutory right to take posseion according to the covenants m th lease, and it had been given m evideie that six months' rent was due, an he claimed that they got m rightly an could remain there. I

Mr Rogan then quoted a number of authorities m support of hid arguments. Mr Rees then addressed the Court by its permission, but against the objection of Mr Rogan, who contended that he had no right to reply as no evidencehad been called by the defence. The Court adjourned to 7 p.m., and on resuming was crowded. The Bench said they had considered the case and referred to the authorities. They concluded that a prbna fafiie case had been established of a mild form, as far as .they understood, without terror or violence, but more fas a forcible detainer, and the painful duty fell upon them of sending it a higher authority to decide. The defendants were then committed to the next sitting of the District Coflrt, Gisborne. They declined to make any statement, and were allowed on bail of £25 m their own reoognizances.