RESIDENT MAGISTRATE'S COURT.

Temuka Leader, Issue 2192, 23 April 1891, Page 3

RESIDENT MAGISTRATE'S COURT.

Gekalbine —Tuesday, April 21,1891. [Before C. A. Wray, Esq., K.M.] CIVIL GABES. E. Perham y. H. McMaster —Claim 12b and the possession of a cottage. Mr E. Wilson Smith for plaintiff. Plaintiff bad served defendant with a notice to quit in a month, and now expressed his willingness to wait the month. After hearing the evidence of plaintiff and GK Perham, and also of defendant, His Worship gave judgment for the amount claimed, and costa, the cottage to be given up in a month as agreed. B. H. Pearpoint v. B. Millard — Claim £3 Is 9d. Judgment summons. —Ordered to be paid in two months, or in default 14 days’ imprisonment. N. Dunlop & Co. v. W. A. Sberratt A Co. —Claim £lB, interpleader. Mr E. Wilson Smith for plaintiffs, Mr J, M. H. Tripp tor defendants. All witnesses were ordered out of Court. In opening the case Mr Wilson Smith pointed oat that the defendants and also JU Googan having obtained judgment against A Eryers, ot the (Geraldine Eiax Mill, for sums of money due to them they seized 14 bales of flax, over which N. Dunlop & Co, held a prior claim. In order to release the flax Dunlop & Co. paid the sum of £lB into Court under notice, and now brought an action to recover the amount bo deposited. The facts of the case were that upon the sth March last Dunlop & Co. advanced to Eryers the sum of £57 17s 9d, and to secure this took a bill of sale which included three tons of flax lying upon the ground. There were 14 bales originally seized. Eire of these bales were flax which was not included in the bill j£ sale, the balance was a portion of that included in the bill of sale. Eryers commenced business on the sth March last, taking over the business from Allington. Allington consigned to him all the effects of the business and debts, and Eryers was to pay all the debt*, putting aside Dunlop’s. They amounted to about £2O. Upon the registration of the

bill of sale some of the minor creditors became uneasy, and at once began proceedings against Fryers. I his put Fryers in a difficulty, and he applied to Dunlop for further assistance. Upon the 14th March all the men stopped work at the mill till their wages were paid. In this fix Fryers applied to Dunlop for assistance, and that day Dunlop went down to the mill, and it was arranged that on consideration of all the flax upon the ground being handed to Dunlop he would undertake to pay the men and let them go on. The work then went on as before, and the flax was at once baled up and Dnnlop obtained possession. It was carted to the Orari and deposited at the railway station on Dunlop’s account, was held by the railway, and afterwards consigned to his agents. After it ijad been at the Orari a day or i two the bailiff attempted to seize it at the instance of Sherratt & Co. and Coogan. The manager resisted, and sent the flax to Lyttelton in accordance with his instructions. The bailiff seized it at Lyttelton, and that was the seizure complained of. Fryers was looking to Chinnery & Go, of Rangiora, for some £2O for flax previously sent up. 1 his amount did not come to hand, and upon March 17th he went up to Rangiora to see about it. On the 14th March, when tnp agreement was made' re paying the wages, Dunlop told Fryers, he should want a proper stamped agreement, but being satisfied as to the man’s position, and as a holiday and Sunday intervened, he did not press for its being drawn out before Fryers should come back. Dunlop had never seon or heard of Fryers since. Fryers left a memo, ’put in] with Mr Adams, Chinnery’s manager, stating that he had that day, in consideration of Dunlop guaranteeing the amounts due to Copping and Wise, handed over to him fourteen bales of flax fibre. Adams overlooked sending this note, and it did net get to Dunlop’s hands for some time afterwards. In fact Dunlop had only received it when he went to Eangiora to see about selling the flax about the 7th of April. Dunlop had never communicated with Fryers after the latter left Geraldine. Fryers found be could not get the £2O from Chinnery, as it had been drawn by his previous partner, and this leaving him without the means to pay his liabilities he went off to the North Island, leaving the memo, as to the agreement with Dnnlop. Fryers account with Dunlop was considerably indebted. He could prove an indebtedness of £lO3, and there was a contingent liability of £SB. To cover this was a bill of sale, the value of which was very dubious, as the plant, etc., was old. He called Nathaniel Dunlop, of the firm of Dunlop & Go,, who deposed to advancing £57 17a 9d to Fryers on March, and taking a bill of sale over the mill plant and fibre. He deposed to the strike among the men, owing to their not getting their wages, and his guaranteeing £2O to Copping and £lB to Wise on condition that the flax on the ground should be handed over to him with a stamped agreement to that effect. He went on to explain the details of the forwarding of the flax to Oran, the attempt to seize it there, its consignment to Lyttelton, and its seizure there by tho bailiff at the instance of Sherratt and Coogan, The witness was examined at great length by Mr Tripp, who endeavored to show that the agreement about the flax was made with a view to keeping Sherratt and Coogan out of their money. He also endeavored to elicit that Dunlop had promised to pay all the other creditors, but had said that Sherratt and Coogan should not get a penny. He was unable, however, to shake the witness’ evidence.

In reply to His Worship Mr Dunlop said he made the advances upon tbe consideration of the flax being handed over to him. He took possession of it at once, and shipped it to Orari that day (Saturday), and on the Monday sent a consignment note for Lyttelton. He made the advances simply to try and keep the mill open and the men at work. James Copping, carrier, Geraldine, deposed to refusing to cart any more flax to the mill unless, be got £2O down, as £4O were due to him, and Dunlop visiting the mill and arranging to pay him £2O on condition that Fryers handed over the fibre on the ground to him. The arrangement having been made Dunlop took possession of the flax, and witness and Fryers carted it to the Orari. Witness took a note to the stationmaster that the flax had to he stored in Dunlop’s name till Monday or Tuesday, when Dunlop would send a consignment note for its removal. Shortly after this there were eight bales that bad come back from Chinnery’s to be rescutehed. After they were rescutched they were reduced to five bales. Tbe bales were branded with three C’s, and a triangle with Gr upon tbe outside.

Witness was examined by Mr Tripp to show that Fryers still retaised possession of the flax when he took it to the Orari, but witness was emphatic that Fryers had nothing to do with it, and simply drove tho dray as he was doing nothing. Witness was in charge for Dunlop & Co., and got it stored in Dunlop’s name. Witness and some oi the other creditors had met at Dunlop’s office before this and talked over tbe position of the mill. Could not remember what was said except that Mr Dunlpp said he would see tba^

witness was paid. Mr Dunlop told Mr Wise to get all the accounts in, and see what the mill was indebted. He did not tell witness to keep bis guarantee of Ids debt quiet. Witness was not aware that the arrangement between Dunlop and Fergus was made to keep Sherratt and Coogan out of their money. Might have said that all the men would get their money except those two. That was said owing to their action in the Court. Thought the mill would pay, and thus the ere ditors would get their money. To Mr Wilson Smith : The mill paid very well before these proceedings were started, but bad not paid since. His Worship; You did not get your money, if it did pay. William Wise, flaxmiller, Geraldine. deposed to having been working at Fryers’ mill and striking because he wanted his wages paid. Fryers brought Dunlop to the mill, and Dunlop asked witness whether he would work for him. Witness replied that he would, and Dunlop said that if the flax were handed over to him he would pay witness* wages. This was done, and Dunlop & Go, took possession of the flax and sent it to Orari. To Mr Tripp: At the meeting of creditors at Dunlop’s nothing was said about Sherratt and Coogan’s accouuts, so far as he could remember, John May, railway statiunmaster at Orari, deposed to the flax being received at the goods shed, and its being consigned, in Dunlop & Co.’s name, to Lyttelton. It was stored by Copping for Dnnlop on Saturday, March 14, and the cousigment was received on the Tuesday following. Fryers had nothing to do with it, but simply said that the flax was upon Dunlop’s account. An attempt was made by the bailiff to seize the flax on the Thursday following, but witness resisted the attempt and forwarded the flax to the consignees. Te Mr Tripp: No reference was made to Coogan’s and Sherratt’s debts by Fryers. This was the plaintiffs’ case. Mr Tripp said the case was defended on the ground that the handing over of the flax was dune for the purpose of defrauding and defeating the other creditors. He contended that it was taken over by Dunlop although he knew of Sherratt’s debt, and that Sherratt had been agitating with the other creditors. Dunlop said nothing about the agreement, although he knew this was the only flax Sherratt could have any claim against. Dunlop took it and sent it to Orari, Fryers remaining in possession still. It was not until some fourteen days afterwards that Sherratt found out how Dunlop got possession of this damaged fl?x. He called Amos Sherratt, of the firm of W. A. Sherratt & Co., who deposed to receiving a cheque (produced) from Fryers upon March 7. When Fryers gave witness the cheque he said he had sent some flax away—3 tons—and was expecting money down for it that day. He asked witness if the money did uot come, to hold the cheque over until Monday, the 9th. The cheque was dishonored. Knew nothing about the damaged flax coming back until Dunlop told him there had been 18 bales sent alter the 14th March. The cheque was given upon the strength of the 18 bales sent away, and 8 bales of this were sent back to be reseutched. Upon March 13 Fryers came back. Previous to that witness and Sutherland served a notice upon Dunlop not to send any more flax away until there had been a meeting of the creditors. All the creditors signed the notice. Called the creditors’ meeting in the afternoon. At that meeting Fiyers promised witness that be would make arrangements the next morning for his cheque to be paid. When Fryers said that Dunlop said that what he (Fryers) said he would j do would-no doubt be carried out, or \ used words to that effect, the creditors V were satisfied and withdrew. Did not hear about the meeting between Fryers, Wise, Copping, and Dunlop until nearly a fortnight afterwards. On the morning of 14th March wit- I ness went down to the mill and saw them rescutching the flax, when Fryers again promised to make arrangements to meet the cheque. Did not see the carts go to the station. Saw Fryers on the 16 th, and he said he had net had time to settle about the cheque on Saturday, but he had seen Dunlop, and would be up at witness’ office between ten and halfpast. Told Dunlop of this. On the 17th saw Dunlop and asked if there were any signs of an arrangement’ Tbeie appeared to be none, so witness took out a summons. Fryers refused to attend the court, saying he was going away. Witness said he expee'ed Dunlop had given him money to go away. Fryers said : “ I should be a fool if I didn’t take all I could get,” Witness took out a forthwith summons under the Justice of the Peace Act and obtained Judgment against Fryers, and vook out an execution. [At this point His Worship said such a course was illegal, as a Justice of the Peace had no power t© order a sitting of the Court.] Witness, continuing, said he got a number of the creditors together and endeavored to get claims to the value of £SO, so as to get Fryers made a bankrupt, but was unsuccessful. Some of them said Dunlop had guaranteed their money, and did not care to interfere. Witness saw Dunlop at the mill on March 12, and made him an offer for the mill. Witness did not state a sum, but as Dunlop said he would sell the xpill if he coqld get his own money oi}t of i| wilnw* " ‘ ’ ? Vi ** ” . odlCt

he would give him a cheque for the amount, whatever it might be, and take the mill oyer. To Wilaon Smith : Made this statement simply because Dunlop had said he would take his own if he could get it. Dunlop bad told witness that he had guaranteed Taylor & Platman’s account of £3O for the engine. This was the case. Mr Tripp addressed the Bench, stating that the plaintiffs claimed the flax as having been handed over by arrangements on Saturday, March 14. Sherratt knew nothing of this arrangement, and knowing the flax was not in the bill of sale seized it. He contended that the arrangement was made for Dunlop to take over the flax simply to prevent Sherratt and Coogan getting their money. He quoted from authorities upon the legality of the transaction at some length. His Worship said he did not see there had been any fraud. Dunlop may have taken care of his own interests. The flax was really in Dunlop’s possession, and being in his possessiop without fraud there was no doubt the others had no right to meddle with the flax at all. Judgment would be for claimant for the amount claimed and costs, with solicitor’s fee and two witnesses’ expenses. Tne Court then rose.