COUNTY COURT: Saturday: (Before W. M. Praed, Esq., Judge.): Matthews and Opie and Tavener v Pinsent and Burgoyne. The plaintiff, wine, and spirit merchants, of Exeter, sued the defendants, the former a spirit merchant of Newton Bushel and the latter a traveller in his employ, for the sum of £15, under a deed of assignment executed to them by Robert Duke, innkeeper of Chudleigh. Mr. Stogdon appeared for the plaintiff, Mr. Francis for defendants. It appeared that Mr. Pinsent had supplied Duke with malt immediately before he made the assignment of his goods for the benefit of his creditors. Mr. Burgoyne arrived in Chudleigh the morning the assignment was made, and with the consent of Duke removed the malt after the assignment had been made and sold it to a landlord in the same town. Mr. MERLIN FRYER, solicitor, of Exeter, produced the deed of assignment made by Duke about 8 o’clock in the morning of the 21st of July. Messrs. Matthews and Tavener executed it the same day, and Mr. Opie on the Monday following — witness put Mr. Howard, auctioneer, in possession of the goods on the premises. Mrs. Duke raised an objection against her husband’s signing the deed, but after it had been read over in the presence of Flood (his son-in-law) and Matthews, he signed it. Witness had heard that Duke had said he did not know what he had signed, but on the witness questioning him he denied that he had ever made such a remark. Mr. Matthews hesitated to become a trustee under the deed, until after Duke consented to return to him a pocket of hops which he had previously supplied. After Duke had himself named the trustee, the witness called on Matthews who said: I sent Duke a pocket of hops only a few days ago, and he must have known how he stood. We are creditors to a large amount beyond the last order, and if Duke has not carried the hops into stock and will return them, we will become trustees.” The witness advised Duke to return the hops, and they were removed with a jar of spirits into an opposite house before the deed was executed. Matthews threatened to drive Duke into the Bankruptcy Court if he did not come to the terms proposed. Witness had demanded the sum sued for by Mr. Pinsent several times, once on the 8th of Dec, but he refused to pay. Counsels’ opinion had been taken twice on this case. His Honor asked to see the deed — lengthy document — which was handed to him. Judge seemed rather astonished, and asked Mr. Fryer if he read and had explained it to Duke in a quarter of an hour. Mr. Fryer replied in the affirmative, and His Donor observed that Mr. Fryer capabilities surpassed his own in that respect. Mr. Stogdon offered to read it to his Honour in ten minutes, a favor which was significantly declined. Mr. DUKE was then examined. He said he had been in business for two years. About twelve months ago he got into difficulties and consulted Mr. Fryer. He had the malt in question of Mr. Pinsent, about a fortnight before he made the assignment for the benefit of his creditors. Did not know the quantity of malt he had, nor how much he took for a single brewing. Had previous to going into this business been employed as a coachman. Mr. Burgoyne called at his house about an hour after he had signed the deed and said he would like to have the malt back. Witness said he did not know anything about it, but that “Restall has the keys, if he likes to give it up to you, well and good”. Saw Restall talking to Burgoyne afterwards, and then Restall came to witness with the key, and the door was opened, and took away the malt, and placed it in a cart. Witness did not recollect that he had ever said he did not know what he had signed. His recollection was not very good but knew he did not tell Mr. Burgoyne so. The deed was read to the witness before he signed it by Mr. Fryer: Mr. Matthews took away his hops and brandy before the deed was signed. There was some cider on the premises, which Mr. Tavener bought at the sale. Mr. MATTHEWS, one of the plaintiffs, corroborated what was said, relative to the malt. The pocket of hops was supplied to him only 48 hours before he was asked to become trustee; he certainly refused to do so without the hops and brandy being restored. GEORGE RESTALL said he was employed to take possession about half past ten in the morning. He saw Mr. Burgoyne in the parlour with Mr. Duke, he came out and asked witness for the malt, saying that he had seen Mr. Duke, and he had agreed to give it up; witness refused to give up the key, he went away and came back again in about an hour, and asked to see the documents that gave witness power to hold possession; witness said he had none, and Mr. Burgoyne said “you have no right to keep possession if Mr. Duke likes to give me up the malt;” witness said he would give the key to no one but Mr. Duke, Witness ultimately gave the key to Mr. Duke, but did not see the malt removed. When the witness afterwards took an inventory of the goods on the premises there was no malt. Mr. Howard held the sale; a hogshead of cider was left after the sale, and it was sold to … The learned advocates each side, his Honour gave judgment for plaintiffs, with £7 6s 4d costs.
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Referenced
GRO0518 Devonport: John Ball Pinsent: 1819 – 1901