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Colonial Cases

In re Lane, Crawford and Co. v. Cheshire, 1870

[interpleader]

In re Lane, Crawford and Co. v. Cheshire

Supreme Court of China and Japan
13 June 1870
Source: The North-China Herald, 16 June 1870[1]

 

 

H.B.M.'s SUPREME COURT.

June 13th, 1870.

Before C. W. GOODWIN, Esq.

In re LANE, CRAWFORD & Co., and others v.  W. CHESHIRE.

   This case arose through an inter-pleading summons, applied for by plaintiffs against defendant, to secure, for behalf of the creditors generally, amounts due to the estate, as per chits in possession of the Court, which had been held by Mr. W. Birt, but seized under a warrant of execution by the Sheriff.

   Mr. Wilson, of Lane, Crawford & Co., appeared for plaintiffs, and Mr. W. Birt as defendant.

   From the inquiry into the circumstances of the case, it appeared that Mr. Cheshire, being pressed in the end of 1869, by a gentleman who had a bill of sale on the Carlton Dining-rooms, was relieved by Mr. Birt advancing Tls. 800, the amount necessary to pay the mortgage.  For this Mr. Cheshire granted, as security, a fresh bill of sale, under an agreement by which he was also to hand over the receipts of the "Carlton" to Mr. Birt; and the latter was to recoup himself at the rate of Tls. 100 a month for his advance, and pay "as far as possible" the current bills coming against the house.  Mr. Birt showed that he had fulfilled the agreement, so far as the current bills were concerned, to rather more than the full amount received by him; and the estate was at present indebted to him on that account over $300.  For this, and a sum under his mortgage of $775, he claimed a lien over the chits which had been seized.  The arrangement had been entered into in December last, and the accounts to be paid were those incurred subsequent to that time.

   Mr. WILSON threw doubt on the authenticity of the agreement; and the correctness of the accounts showing the disbursements made by Mr. Birt.  These he would like to examine before the Court passed them.  He thought the nature of the transaction looked as if there was collusion between Mr. Birt and Mr. Cheshire.  A meeting of the creditors had been held, lately, when the statement of accounts submitted by Mr. Birt was not considered satisfactory; and as that gentleman had declined to give any other, the matter was brought into Court.  He might say that he was there for the general body of creditors, as well as for his own firm; and there were no other assets that they could come upon for $12,000 of debts than the sums due to the estate under those chits.  He submitted, too, that Mr. Birt had not settled current bills "as far as possible" else he would not have kept over $2,000 worth of chits in his hands for two months uncollected.

   Mr. Birt objected to the expression "collusion;" and in regard to the accounts was ready to enter the witness box on oath, as to the transactions stated.  He had Mr. Cheshire's declaration of the authenticity of the agreement.  Mr. Wilson well knew that exertions had been used to collect the sums in the chits.  Having been sworn, Mr. Birt stated in effect what has already been gone over.  In answer to a question by plaintiff, he said a debt of $400 he had paid by a bill of a month falling due on the 21st of the present month.  By the sale of the "Carlton" there would be a balance, after the landlord's claim, of Tls. 164.

   The Court held that Mr. Birt had a good claim against the chits for over $300 of payments made by him on the current accounts, and also for what was now sue on the mortgage - bring Tls. 200 for the first month and Tls. 100 for each of the following months, up till the closing of the "Carlton" - altogether Tls. 600.  The Court ruled accordingly; also giving permission to Mr. Wilson to look over the accounts; and appointing a collector to recover the chits, and to place the sum recovered in the hands of the Court, in order to close the claim as speedily as possible.  The balance from the sale of the "Carlton," the Court decided should go with the rest.

Note

[1] See also In re Lane, Crawford and Co. v. Cheshire, 1871.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School