Untitled

Colonist, Volume XIV, Issue 1386, 6 January 1871, Page 3

THURSDAY, January 5.

Phillips' Assignees v. Miinee,

In this action T. R. Fisher and John Aiken, trustees under a deed of assignment from J. C. Phillips, Bued William Milner for the return of a quantity of household furniture, seized by the defendant from the premises occupied by Mr. Phillips, or failing such return, for the sum of £100. Mr. Acton Adams appeared for the plaintiffs, and Mr. Pitt for the defendant. The case bad prejyously been brought before the Court, but was withdrawn in consequence of the deed of assignment not having been stamped. Mr. Adams now produced the deed properly stamped, his clients having paid the penalty of £5 to the Stamp Office. James C, Phillips, sworn, said : He bad made a proposal to his creditors to pay £60 a month, and that proposal was embodied in a deed. Mr. Pitt objected to the production of the deed, because, although it had been stamped yesterday (o allow of its being receiv.ed in evidence, yet ho contended that it was not evidence, because to be an effective deed, the requirements of the Stamp Act ought to have been fulfilled at the time of execution.

The Resident Magistrate took a note of the objection, but over-ruled it at present. J. 0. Phillips's evidence was continued. I was embarrassed on 23rd June, and when I executed the deed of assignment on 11th July, I held in my possession the furniture contained in the list. It remained in my possession until 10th December, on which day Mr. Milner came and claimed the furniture. It was in my absence, but I saw the last cartload taken away. All the things were taken

then. Mr. Milner took these goods because he bought them from me on 18th June, and paid'me for them on Ist July by an acceptance, dated 4th July. I received £lOOJ and £37 10s. of an old account which was due to him. On 16th June, I saw Mr. Milner, and asked him to advance me some money; he asked what security, and I said the furniture. He took time to consider, and two days after he agreed to lend me the money. Mr. Milner valued the furniture lower than I did. There was a sale note of my valuation, but he considered that too high, and the note was torn up. There was no other writing passed between myself and Mr. Milner until

the acceptance was given. Before I went to the meeting of my creditors, I considered I was not the owner of the furniture, and that was the reason why I did not put it down as an asset. On Ist July, I informed Mr. Aiken, in his office, that the furniture did not belong to me. I told him I could arrange Mr. Edwards's and Mr Turner's rent, amounting to £97 10s., by a bill from Mr. Milner. Mr. Aiken asked me what security I had given, and I told him I only had the furniture. It was an absolute sale until the money was paid back, and then the furniture was to be given back to me. It was left in my possession because it would be useful to me. It was to remain with me for five or six months ; if it was not paid then, he was to take his furniture. In pursuance with an arrangement with my creditors, I had been paying £60 a month. On Bth or 9th December, I felt I could not pay this. I knew the Trustees had power to take possession. At the time of the execution of the deed, the Trustees did not take an inventory of tlie furniture, neither did they know when Mr. Milner took it.

By Mr. Pitt : On the 12th December, 1 made default of payment. On the 10th, the furniture was seized by Mr. Milner. It was an absolute sale to Mr. Milner, if I did not meet the acceptance which was due on the 7th December. I gave the acceptance to Messrs. Edwards and Co. for rent.

William Milner, sworn, said: lam defendant in ibis action; I employed Cooksey to remove the furniture from Mr. Phillips's ; I was not aware until

the morning I took the furniture, that there was a deed of assignment. On the 11th July, when that deed was signed, I was a creditor of Mr. - Phillips; I was to have the furniture in satisfaction of mv loan.

Cross-examined by Mr. Pitt : In June, Mr. Phillips told me he wanted some money, and I said I would lend him money if he gave security, and paid the acceptance when due; he gave me the furniture as security, which was to be mine if the bill was not met. I knew nothing of the assignment; the £100 was wanted for rent. The invoice or receipt given for goods in June, was torn up with my consent.

John Aiken, on oath, stated: lam manager to Messrs. Edwards & Co. In June last, I knew Mr. Phillips was embarrassed ; there was a meeting of creditors at Messrß. Morrison, Sclanders & Co.; the papers produced was subscribed by Mr. Phillips as his list of assets ; on the faith of his representations an arrangement was come to, and this deed was drawn up in consequence. If I had known of the disposal of the furniture, I should not have made the arrangement. One of the creditors told me that Phillips's furniture was being moved; I went to Phillips, and hs'fcold me he had sold his furniture to Mr. Milner ; I warned Phillips not to deliver any more ; and after consulting Mr. Fisher, my co-trustee, I served a notice on Mr. Milner to return any he had moved, and not move any more; he did not return any, and I took proceedings on the 12th or 13th, immediately on the default of the payment of the instalment of £60,

Mr. Fisher was also examined

Mr. Pitt then contended: First, that there was no case, as the deed was not stamped as it ought to have been at the time of its execution ; secondly, that the sale of furniture was made before the deed of assignment was executed. So that, therefore, the furniture was not part of the assets. Mr. Milner had acted in perfect good faith ; Mr. Phillips had told him he wanted money, and he could not be expected to lend money without security.

Mr. Acton Adams said that Mr, Pitt's objection as to the stamp was not well founded, as the 14th Section of the Stamp Act, of 1867, declared that a deed should not be available in law or equity until the fine was paid, and it was impossible for a deed to be good for a time, then bad, then good again bj being stamped under payment of a fine. Mr. Adams then contended that the contract of sale between Phillips and Milner did not satisfy the requirements of the statute of frauds, and even if it had, it was void as against an assignment for the benefit of creditors under the Bills of Sale Act, of 1867, through not being filed ; and thirdly, that the furniture being allowed'to remain at Phillips's, the sale was actually void under the statute of 13 Elizabeth.

The. Macmjtbate took time to consider his judgment*

THE PROVINCIAL SCHOLARSHIPS,

Mb. Simmons and Mr Hodgson, having been appointed Examiners, laid their report before the Central Board at the meeting of yesterday. These Scholarships carry with them a money payment of £4<o per annum, while the Governors of the College grant a free education at that Institution, and the Masters waive their capitation fees. Thus each Scholarship is worth £52 10s. per annum. The scholars being allowed to board with their friends or in College, it is hoped that tbis sum will prove sufficient to main-

tain them without taxing their parents' resources. "We subjoin the Examiners' Report:—

" Nelson," 30fch December, 1870. " Sib, —In accordance with the instructions of the

Board, we proceeded to Motueka, Upper Wakefield, and Bichmond, to examine such candidates for the Scholarships as presented themselves, having duly advertised the day and hour of examination in the looal papers. " We also enclosed copies of papers together with full instructions to Mr. Baird, of Motupipi, and to Mr. Broad, Mr. Giles, and Mr. Whiteford, for the West Coast. We had previously been informed that there were no candidates from Collingwood. "We have now received from these gentlemen such papers as there were to be sent in, and, having carefully examined the papers of all the candidates, are able to make our award, and to subjoin a list of candidates in the order of merit.

" The successful candidates are, you will observe, Hodgson, of Spring Grove, and O'Connor, of Waimea West. The papers, however, of White, Harknesß, and F. Thompson, all of Richmond school, and of Wilkie, of Motueka, also deserve the highest commendation. Indeed, it is a matter of regret to us that there are not more scholarships to be allotted, as any one of these boys would be a credit, no less to the new institution of Provincial scholarships,1 than to the College. "Thepart taken by Richmond school in this competition deserves remark. It sent in the largest number of candidates, all of whom made a good appearance, while the papers of the best were 60 well done as.to cause us a momentary hesitation as to our award. At Richmond, as elsewhere, we were informed that in many instances those pupils, whose school marks proved that they had the best chance in this competition, were withdrawn from it by their parents ; in some instances on the ground that they dreaded defeat, in others that they had resolved to continue their sons' education no further. In the first case, we would remark that even defeat in a contest in which none but the flower of the Provincial schools meet, is no disgrace, while to take such a position as either White, Harkness, F. Thompson, or Wilkio have taken, so far from being a disgrace, is a high distinction. Any boy who has obtained marks bordering upon 100 has donp well, and even to have pu(; in an appearance is creditable. In the second ease, even though the scholarship itself may not be an object <s£ importance to a boy's parents to have merely gained it, is in itself a high honor, and is calculated to give a boy no small confidence in himself on his entrance upon the business of life. Besides, all such examinations have a high educational value, as teaching a boy how much he really knows, and what portion of his knowledge is really and readily available for use. Further than this, it is simply unjust to teachers not to permit them to reap the credit due to conscientious and prolonged labor, too often wholly unacknowledged.

"We desire, however, to record our opinion, that there is every reason to be satisfied with the experiment, as we have secured two very promising scholars, and have ascertained that there is good hope of others, not less promising in the future. Although the candidates may hereafter be more numerous, we cannot reasonably expect to find them better than those now elected, or even than the foremost among the defeated,'

"The subjects chosen for examination, with tie maximum marks in each subject, were as follows : Writing, 50 j Dictation and Punctuation, 50; English Composition, 60; Abstract Writing, 50 ; Arithmetic,

'' Thus writing and'spelling, decent proficiency in which we looked upon as indispensable, - counted for 100 marts in the examination.

" The purely literary examination might realise 110 marks. The arithmetical papers counted for the same proportion as the literary part of the examination.

"We may mention, as a singular fact, that throughout the examination, square root and double rule of three were very generally correctly worked ; and the sums in decimals invariably thoroughly well done by all the better candidates, while the same boys failed in numeration and the easier questions.

" Few candidates succeeded in, or even attempted abstract writing, while many appeared to write very fair, and some singularly good English. The handwriting generally was excellent.

'"We enclose the list of candidates in order of merit, attaching their numbers to those who appear to deserve commendation. It is fair, perhaps, to say that the position of the boy whose name stands lowest on the list seems, to us, due rather to temper than to incapacity. " We have the honor to be, Sir, " Your obedient servant, " rs;<™pr^ Feank C. Simmons. W»ed) w . o. Hodgson." ORDER OF MERIT OF THE CANDIDATES. School. Name. Remabks. Spring Grove Hodgson 230) „ , , Waimea West, N.D. O'Connor 208 \ ScnolarsRichmond White 200") » Harkness 185 f Highly ~ F. Thompson 167 C disting. Motueka Wilkie 152 ) Richmond Tovey 7 1 •) Waimea West, N.D. Bartlett j 130 i Ver/ Hillside Ross . 125) Sood> Pangatotara Jennings 97"") Cobden (Signed) Cobden \ Qn | Richmond H. Thompson ) \ Good. Ranzau Tietjens\ QK I Motueka Staples / °5 I Spring Grove Ratt 75 | ; Waimea,West ... Morburn 72 I Hillside ... Bell 70 [>Fair. Motueka Buchholtz 65 | Cobden.., (Signed) Nelson 57 J Cobden (Signed) Grey Lower Wakefield ... Baigent N.B.—This order.of merit is determined solely by results, with no reference to as;e. It therefore follows that some of the younger candidates, although appearing low upon the list, may really have deserved great credit, and given evidence of high promise for the future. (Init'd) F. C.S. W. 0. H. The Dictation was taken from the " Advanced Reader," p. 268, from the words "one day," to " for ever." The English Composition was taKen from the article on Venice, in the same work, from the words "When Attila," p..275, to the words "Venetian commerce," p. 276. The passage was read out slowly and distinctly to the candidates, and was then reproduced by them in their own language. A passage from a leading article in The Colonist, of Nov. 11, on the Electric Telegraph was given for the precis or abstract. . - . ;. "Arithmetic. "1. Express in figures four thousand and four millions four thousand and four. " 2. If I buy tea for 6s. 3d. per lb., and sell it for 65., how much per cent, is lost ? " 3. If 3£ yards cost 3s. 9d., what is the price off of a yard? "4. A grocer mixes 2cwt 151bs of sugar at lid. per lb, with 14ewt SlbsatSd per lb ; at bow much a pound Wist ne sell the mixture so as not to loot* by it v

Highly disting.

" 5. What is the cost of a block of marble 6ft long, 2ft broad, and 6in thick, at 6s 6d per cubic foot ? :

" 6. If 3 tons can be carried 20 miles for £14 10s, what weight ought to be carried 30 miles for £5 8s 9d ?

"7. What'is the interest on £105 6s 2d for 19 years and 7 weeks, at 3 per cent ? " 8. Divide 1-2166 by 10,000. "9. Find the square root of 73441.

" 10. A cistern can be filled by three pipes: by the first in two hours, by the.second in three hours,, 1 and by the third in four hours ; in what time will the 1 cistern be filled when the three pipes are opened at once ? " 11. A, B, and C rent a house together for two years, at £150 per annum j A remains in it the whole time, B, sixteen months, and 0, four and a-half months, during the occupancy of B. How much of the rent must each pay ?" The list of College scholarships stands at present as follows:— % g> Foundation. g£ggi ~. 3 3 v- —"•"/ §3 §• 3 -3, StOMNM Sffg itm flf =■ h § s f?£-' ■ i I" '' ■ ■ g lI^HHH WW W W H ** M sssssssjg g DICKHHHH MtOMtO ho WCO W 2 to to k, M fcß to 0000 0000 H oo o oo o , P 81 s i g Hi* S: || 3 tDjOjlaa Qj &a, I J| § P § ooohoo S" oo" m ShSO; So oo oo mo! -crrj ■ hj <r «* m -<i <» to tS H" OS * The Province contribates £40 per annum, the Governors give the school fees, which equal £12 10s to each of these scholarships; and the Masters, in all cases where the school fees are remitted, relinquish capitation fees. It is hoped that the term of the Provincial scholarships may be extended to three years, so that when the scheme is in full operation, there will be six Provincial scholars, and at leusfc four pupils for the Governors' town scholarships.