RESIDENT MAGISTRATE'S COURT.

Westport Times, Volume II, Issue 259, 30 May 1868, Page 2

RESIDENT MAGISTRATE'S COURT.

Ebidat, Mat 29. (BeforeT. A. S. Kynnersley, Esq., R.M.) REFUSING TO PAY FARE. John Ilegarty was charged with refusing to pay his fare from Nelson to this port on board the Charles Edward. No one appeared to press the case, and it was dismissed. The prisoner was then charged with escaping from lawful custody at the Nelson Lunatic Asylum. It appeared that the poor fellow had been attacked with mania on Addison's Elat, and after being kept in Westport some time was ultimately sent to the Nelson Asylum by tho Resident Magistrate. By some means he escaped and stowed himself away, hence the prior charge. He said in answer to the magistrate, that they had told him he could go, and

that he was well, but his bearing in court clearly contradicted the idea, and he had no document of any kind to show to that effect. He was remanded in order to allow enquiries to be made by communicating with Nelson. If he had been negligently permitted to escape, as is supposed, such carelessness is not very creditable to those in charge of the asylum in Nelson.

CIVIL CASKS. W. Bull v. 11. Mace—Mr Tyler for the plaintiff stated the case, which was to recover £IOO under the circumstances detailed in evidence—£Bo being the estimated value of some trucks that were alleged to be illegally sold and withheld from plaintiff, and £2O being the estimated damage accruing through their being so withheld. The question was in the first place whether the trucks in question were in the schedule attached to a bill of sale lately held by the Bank of New ISouth AVales over Mr Nees' property, and whether, if so, since at the time of their being so scheduled they were not in Mr Nees possession, and his interest in them was transferred before they ever came into his possession, the bank had a right to sell them to the present defendant.

The plaintiff stated —I recently demanded six trucks from defendant in the presence of Mr Isaacs, when the latter said he would not give them up as he had bought them by auction. Mr Dwan Avas the auctioneer. I saw four of the trucks, and Mr Mace told me where the others were and admitted having the six. I bought the trucks of Mr Nees on the 4th of last October. At the time they were on the jetty at Westport, near the wharf where other goods were being lauded. I paid £SO for them, and have not parted with my interest in them since then. After purchasing them I hired them to Mr 3S"ees at 5s per week each. I have a contract for the telegraph and am working beyond Brighton. I have come up here for no other purpose than to recover these trucks, and it is a very considerable loss to me to come up here. By the Defendant—l have not received any part of the rent from Mr Nees. Mr Nees gave me a receiptforthc money. It is in existence. I showed you it on the day I demanded the trollies.

H. Gr. 0. Nees, deposed—l am a contractor residing at Charleston, and know the plaintiff. On the 28th of September last I gave a bill of sale to the Bank of New South Wales. In that there were nine trollies, three of which were on the premises in Charleston, and six were ordered from Melbourne. I had notice from Langlands and Co., and was told they would be forwarded to Forsyth and Masters, with whom I could make arrangements to get them. These trucks were sent to that firm, and I never got possession of them. These were the nine trucks included in the bill of sale, and were narrow gauges. There were broad gauges that were ordered for the Westport and Charleston Railway that arrived in October—the six in question. They arrived about the 23rd or 24th of October. These were consigned to the Union Bank, and I could not get delivery till a draft at sight, drawn on me, was paid. I could not meet it, and Mr Bull purchased them off me for £SO, and I received the money. I rented them then from him for 5s per week each,and took them to Charleston. I shortened them to make them of a narrow guage, and employed them in my business. When the Bank took possession under the bill of sale, Mr Johnston, the barrister, served them with a notice to the effect that the trollies were the property of Mr Bull. This was served on Mr Dwan, the auctioneer, who said that he was employed by the Bank, and that they were a good mark to shoot at. Part of them were subsequently sold to Mr Stebbing, and part to Mr Mace. I can swear to five of them being the same I sold Mr Bull, but cannot swear to the sixth. There were, to the best of my knowledge, eight tip trollies on the premises, and I believe the whole six that I got from Mr Bull were there. Mr Mace bought three, amongst which at least were two that were Mr Bull's. Mr Mace bought three more afterwards that were certainly Bull's. I I never gave any lien whatever to tho Bank on these trollies.

By the Defendant—l did tell you that one of the trucks was not worth much, I never told you that one went to Rees' claim. I had when the bill of sale was given, two logging trollies, four bench trollies, and one tip trolly. By the Bench —The two logging trollies I intended to turn into tip trollies. I did not include the bench trollies.

By Defendant—Tho remaining six trollies in tho bill of sale were not on tho premises, they were in Molbourno.

I do not remember saying that Mr Bull hud lent money ou the trollies. I could not say how many were sold. I never applied to Mr Jones to pay the carriage of these trucks, and-I never told him that these were those mentioned in the bill of sale. I could not, for they were quite different trollies. I did endeavor to get money from others besides Mr Bull, because I wanted to get the trucks. By Mr Tyler- There were five other trollies included in the bill of sale besides the tip trollies. I swear that the six in question are not the six in the bill of sale. They are worth £2O each. I was offered • that the day before the sale. They only fetched from £8 to £lO each at auction.

By the Bench—l did not sell a truck to Bees and. party. They applied to me, and I referred them to the bailiff". This was an actual sale to Mr Bull, but there was a condition that if I paid him the money with the rent, at any time he would sell them back to me. There is no description of the trucks in the bill of sale. When the bill of sale was given I had six narrow guage coming to Hokitika and six wide guage to Westport. Mr Borsyth has applied to me for the money for the six trucks at Hokitika, so I know by that means they are there. I also had some conversation with Mr Preshaw on the subject. The narrow guage was from Langlands' Limited Liability Co., the wide from Langlands and Co. I have no documents to show—this only through Mr Forsyth. Jamesßanson proved that in October last the last witness wanted a little accommodation, in connection with some trucks that arrived by the Nightingale. At that time he could not help him, and about six or eight hours afterwards he told him he had sold them to Mr Bull.

By the Defendant—He said nothing about their being mortgaged to the Bank.

Thomas Dwan, auctioneer, said he had instructions from the Bank of New South Wales to sell Mr Nees' property. There were some tip trollies, eight, he believed. There was a protest entered, which was handed to Mr Neil, the bank's solicitor, who told witness to sell on. Mr Mace purchased all the tip trollies but one. By defendant—Witness heard that one of the trucks was at Rees' claim. Mr Nees bid for the trucks.

Joseph Templar, storekeeper, proved that he was present when Mr Nees sold the trucks to Mr Bull, and saw the latter take delivery of them. By defendant—Mr ' Nees gave a receipt in the usual form. Witness wrote out the receipt and witnessed it.

By defendant—There were conditions that if the money was paid hack hy a certain time with interest and rental, Mr Nees conid have them back.

David Isnacs, auctioneer, proved that he' was present when a conversation took place between plaintiff and defendant. The former demanded the trucks, but the latter refused to give them up, though he admitted he had them.

The defendant said—On the 30th of April I bought three trucks, and next day three more, of Mr Dwan. About twelve days afterwards Mr Bull demanded them of me. I told him I had bought them and paid for them. One of the trucks was quite different to the five—as much difference as between a pennv and half-crown. _By Mr Tyler—-I. have sold them since for £2O each. I gave £27 for three and £2O for three more. I sold five for £IOO.

Mr Jones, manager of the Bank of New South Wales, at Charleston, said —I produce the copy of a bill of sale given by Mr Nees on the 28th of September to the bank over his property at Charleston. In the schedule there were five trollies in connection with the saw-mill, and in connection with the crushing-machine nine tip trollies. These were taken possession of under the bill of sale, one of the tip trucks was missing. Mr Mace purchased three first and three afterwards. The eight remaining ones were sold. I was present at a meeting between Mr Preshaw and Mr Nees about September, when I understood from the tenor of conversation that some trucks were coming from Melbourne. Ai the time the trucks arrived in Westport Mr Nees stopped me in the street one day and asked me if I would defray the expenses on them. It was an order on demand for freight I believe. I am not sure whether he showed it me or not, but it was for about £6O. I refused to give it. About a month before the auction I told Mr Nees that I had been informed that ho had, or was about to sell some of the trucks. He said ho had been offered a price for them, but ho had not sold any of them. I then cautioned him against selling

them as tliey wore the bank's property, lie said he would not sell them till he had consulted Mr Rees, his legal adviser, I told him they were the hank's property, and he did not say they were not. He said nothing about there being any mortgage. Once before he told me he was trying to get £IOO on them from Mr Godfrey. I did not tell him then that they were the bank's property. A.t that time I had not the bill of sale, that was sent to me just before the sale came off. In November or December last the bank had possession of Mr Nees'property ■under the bill of sale, but do not know whether these trucks were in possession or not. I do not know whether Mr Bull thou sent in a claim or not. By Mr Tyler —I had seen the bill of sale before Mr Nees told me he was 'trying to get £IOO from Godfrey. I know that there were nine tip trucks in the bill of sale. I do not know whether there were any at Hokitiisa. Mr Nees has said that he never received the promised overdraft, but the bill of sale was given for £9OO, and ho got the £9OO. A second bill of sale was given, but I have no recollection of any one wanting these trollies put in and saying that they were Mr Bull's. By the Bench —Mr Nees never told ■me that Mr Bull hod bought the trucks. I think these trollies are not mentioned in the second bill of sale.

Mr Nees recalled by Mr Tyler ■said —On the 26th October I asked Mr Jones if he had received any instructions to pay me the balance of the promised overdraft, to pay freight, and he said he had not. Subsequently Mr Pitt, Mr Jones, Mr Walmsley, and Mr Simpson came to my cottage. Mr Walmsley came to act on the first bill >of sale. Some machinery that was in the first bill of sale was not in existence, and a new bill of sale was made out. Mr H. Pitt asked me to put the trollies in and I refused to do so, and stated that they were the property of Mr Bull. This was in the hearing of all the above parties, and they were not put in. This was on tbe Bth of November. I have not received the £9OO mentioned in the bill of sale. I didnotknow that Simpson wasput in as a bailiff, or that he was receiving £5 a week from the bank as such at the time, besides £6 I was paying him as confidential clerk. The trollies in question were not spoken of at the time the bill of sale was given. Mr Tyler addressed the Bench for the complainant, and contended that there was no answer to the claim what•ever. lie pointed at many facts in evidence, and adduced cases to support ■this view. Mr Kynnersley said he would reserve his decision till eleven o'clock to-morrow. He might mention however, that he reserved judgment in order to consider how many trucks were identified as plaintiff's property, and also as to the amount of damages that should be awarded. He should give judgment tor the plaintiff because the trucks sold were not specified or identified as being those in the bill of sale. It would be absurd to say, that because the Bank held a bill of sale they could seize any trollies in any part of the world that Mr Nees might be in possession of. Moreover, it was clearly proved that these six trucks were not •in Nees' possession at the time of the bill of sale being executed. Mr Tyler applied for costs which were allowed. Hull and Bond v. Jones —Mr Tyler for plaintiff, Mr W. Pitt for defendant. A claim of £ls for services rendered in connection with the Orawaiti bridge, and for attending two days to give evidence in a case tried at the Eesident Magistrate's Court. Verdict for £lO and costs,