Newton County Court: (before W. M. Praed, Esq., (the Judge)). Matthews and Others v Pinsent and Burgoyne: This was a claim for the value of fifty bushels of malt: Mr. Stogdon, of Exeter, conducted the case for the Messrs. Matthews and Opie, hop and spirit merchants, and Mr. Taverner, of Exeter. Mr. Francis, of Newton, appeared for the defendants, Mr. Pinsent, brewer, of Newton, and Mr. Burgoyne, his traveller. Mr. Duke, innkeeper of Chudleigh, on the 21st of December 1850, made assignment of his property and effects, to the plaintiffs, as trustees under his estate, for the benefit his creditors; and the same day, Mr. Burgoyne obtained from Duke fifty bushels of malt, which took away from the premises, and sold for Mr. Pinsent, who was a creditor. Application was made for the return of the malt, which was refused, and then the action was brought. Mr. Merlin Fryer produced the deed of assignment, to the execution of which he was an attesting witness. He stated that Mr. Restail was left in possession of the effects, after the assignment was made, and that he had applied to Mr. Pinsent for the restoration of fifty bushels of malt, which had been refused. Cross-examined: The deed was signed about eight o’clock in the morning; Mr. Matthews and another were present; there was some objections on the part of Mrs. Duke to her husband executing the deed; the objection was raised on his first coming to the house, but was overcome in about a quarter of hour, when Duke sent for his son-in-law, Mr. Floud, to whom the deed was read over, and he told Duke that it was the most proper thing that he could do, upon which Duke signed the deed; being an old man, he was nervous when he signed, being frightened by his wife; Duke did not say he had not signed; he had heard that Duke had since said he did not sign the deed, but on his questioning him about it, he denied ever having said so. Duke called him the day before and explained to him the state of his affairs and stated what he wished to do. He spoke to Messrs. Matthews and Opie on the subject, and would only consent to act as trustees, on some hops and spirits recently sent to Duke, and not carried into his stock, being returned, which was done. He advised the assignment, to prevent the man from being made bankrupt; he had threatened to sue Mr. Restall for the value of the money. Robert Duke had kept the Exeter Inn, Chudleigh, for two years; he had done business with Mr. Pinsent and Mr. Matthews; he did not recollect having bought malt of Mr. Pinsent, but he knew the malt had been brought to his house; his son transacted the business; he consulted Mr. Fryer, of Exeter, and the malt, which was four brewings, was had three weeks or a month before: he did not know how much malt there was to a brewing, for he had not brewed himself, he was a coachman before he took, the inn: he did not know the cost of a brewing of malt, or how much was put make the beer: he should not think the cost would much above £5. He was in difficulties when he went Mr. Fryer; afterwards, when Mr. Fryer came to his house, signed a deed. Mr. Burgoyne came to his house and said should like to have the malt; he said he had nothing with it, but Restall had the key, and if he liked to let him have it, well and good; he saw Mr. Restall and Burgoyne talking, and then went and got the key, and put it into his hand, and Mr. Burgoyne took it out without saying anything; not a word passed; supposed the key was taken get the malt; a cart came into the yard, and they hauled the bags of malt out; this was the same day he signed the deed. Cross-examined: He signed the deed soon after Mr. Fryer came; he did not recollect having said he did not know what he had signed to; they said they had come to him to sign the deed, and he did it, and after that he went away and got his breakfast; Mr. Matthews said would not have anything to do with it until he had his hops and brandy out; he then went and hunted about the house, and found a bag, or a pocket of hops, which Mr. Matthews took possession of; he also found a jar of brandy, but he believed there was gin in it; he had some cider there belonging to Mr. Taverner, which was taken away after, the sale. Mr. Charles Matthews, one of the plaintiffs, was called, but as he had been in Court during the proceedings, and the witnesses on both sides having been excluded, Mr. Francis took an objection to Mr. Matthews being examined. Mr. Stogdon submitted that a plaintiff could not be kept out of the Court. His Honour said if he was to be called as a witness, he must leave the Court as the other witnesses did. After some discussion between the solicitors and his Honour as to this regulation, as it was not known as positive rule, Mr. Matthews was allowed to be examined, and he stated that he declined to hear a word of the deed read before he had got his hops and spirits out of Duke’s premises, the value of the hops was about £8 or £9; when Duke and his son-in-law saw that was determined, the hops and spirit were given up, and he had them removed and placed in possession of the Exeter carrier. The deed was afterwards signed, and Duke said he gave all to his creditors. Cross-examined: The spirit he got was not his brandy; it was brought to him such, and he sent it on to Exeter, but he found, on examination, that it was gin, sent by Mr. George Durant, and he sent it to him, telling him the circumstance. Mr. Restall, auctioneer, of Chudleigh, stated that after he was put in possession of Duke’s effects, Mr. Burgoyne came and told him had spoken to Duke, who bad agreed to give up the malt, and he wished to have tee key; he refused to give the key; about an hour afterwards, Mr. Burgoyne came again, and asked permission see the documents; he replied that had not got any; Burgoyne said he had no right there, his refusal to deliver malt would be of no avail if Mr. Duke agreed to give him the key; after some hesitation, he said he should not give the key to him (Burgoyne) but to Mr. Duke; Mr. Burgoyne said the malt had been recently bought there, and urged that as a reason why he ought to have the malt; he said that they should recollect he took no responsibility upon himself, and he gave up the key to Mr. Duke; he did not know what was done with the key, and what became of Mr. Burgoyne afterwards; he went up stairs; he did not see the cart come; he took the inventory, after he had given up the key, and did not find any malt on the premises; the key only belonged one room, and was not the key of the room; the cider spoken of was sold to Mr. Taverner, and paid for by him. William Shade, of Chudleigh, was employed by Thomas Flood, a son-in-law of Mr. Duke, to take down a load of something to Newton, to Mr. Pinsent’s, and he agreed for 4s. 6d., he was told by Burgoyne afterwards to take the goods to the Kings Arms, in Chudleigh, and he did so, Strawbridge the landlord, paying him. David Bailey, was employed by Mr. Restall, to go to the Exeter Inn, to remain there as assistant bailiff, to look after what was there; Mr. Burgoyne came to the Inn where he was and asked to see the documents, but he made no answer; some conversation took place between Mr. Burgoyne and Mr. Restall, and then Mr. Duke came and demanded the key of the long-room, saying if he did not get the key he should break open the door: Duke said if one had away things, did not see why others should not; the key was given by Mr. Restall, and Duke and Burgoyne went down towards the room where there was some racks. Mr. Strawbridge, landlord of the Kings Arms, said Shade brought some malt to him, which Mr. Burgoyne had sold him; it was fifty bushels, and had it in a quarter of an hour after he bought it; he knew Mr. Burgoyne to be Mr. Pinsent’s traveller, and had bought malt from him before; the malt cost 6s. a bushel; he had paid for the malt in his account with Mr. Pinsent; he did not know at the time where the malt was brought from. Mr. Francis, for the defendants, submitted that sufficient proof had not been given of the sale of the malt taken from Duke’s to Mr. Strawbridge, but his Honour thought the evidence was sufficient. Mr. Francis observed that Mr. Pinsent felt it to his duty not to submit to this claim, without bringing before this public court, to have his Honour’s judgment, that it might be known in what way these things were sometimes managed. He then remarked upon the plaintiffs’ having obtained preference over all other creditors, and submitted that as Restall had given possession, there was a defence to the action. His Honour said, it was not because a person who had been put in possession of effects improperly gave up property that such a proceeding was to be taken as an answer to a claim such as that made in this case. It might be regretted that in some cases of this kind there would be a scramble among creditors, but this could not justify a creditor, after assignment had been made, getting possession of and taking away goods, although such goods had been supplied by himself. He could only treat this as an undefended action, and his judgment was for the plaintiffs: Damages £15, Costs, £7 5s. 5d.
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Referenced
GRO0518 Devonport: John Ball Pinsent: 1819 – 1901