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LAW REPORT.

TUESDAY, JUNE 25.  

   

BANCO COURT.  

(Before the Chief Justice and a jury of four.)

A DEAD MAN'S EFFECTS,     ACTION FOR SEIZURE.       A REMARKABLE CASE.      

Bursill v Garrett. .

Mr. Piddington and Mr De Lissa, Instructed

by Mr. L. B. Bertram, appeared for the plain- tiff; and Dr. Brissenden and Mr. Boyce, in- structed by Mr. J. V. Tillott (Crown Solicitor) for the defendant. This was an action brougnt by Henrietta Louise Bursill, stenographer, em- ployed by G. and C. Merrlam, publishers, etc., against Thomas William Garrett (as Curator of Intestate Estates) to recover compensa- tion for a proceeding taken against her by de- fendant, which she alleged to be malicious, wilful, and without reasonable cause, and the subsequent seizure by his agent of certain goods, including Jewellery, etc., at her house in Forbes-street. Mr. Piddington, in opening the case to the Jury, said that in 1904 she be- came engaged to a gentleman named Edward   A. English, who was a trader at the Islands, and who, while there, sent her a number of curios. In June of last year he returned to Sydney in a bad state of health, and on June 11 he was admitted to tho Prlnce Alfred Hos- pital, where he subsequently died. Before this event happened, however, English had informed the nurse who was in attendance upon him that everything he had was to be given to plaintiff, and when tho latter visited him in the hospital during the same day Mr. English handed to her a number of articles. In November of the same year Mr. Albert C. English, resident magistrate of New Guinea, and brother of deceased, arrived In Sydney, and with his solicitor, had an interview with Sydney Joseph Stephens, an official in the de- partment of the Curator of Intestate Estates, the result of which was that Stephens, acting upon instructions from defendant, laid an in- formation, stating that certain goods belonging to the intestate estate of the late Mr. English were in the possession of plaintiff, who at the time carried on business under tho man- agement of H. L. Burton, at 235 Forbes-street. A search warrant was granted, and constables visited plaintiff's premises, and seized a num- ber of articles, including a gold watch, double albert and trinket, single albert, gold diamond ring, gold pearl ring, five birds of paradise and a numboe of plumes. These wera all claimed by plaintiff, and upon the matter be- ing inquired into by a magistrate he found that the goods in question belonged to her. A second count of tho plaintiff's declaration charged defendant with breaking and entering her shop and dwelllng-house, and seizing goods other than those already mentioned,, including 58 pigeon plumes, 14 blades of tortoise-shell, a pouch containing Masonic and other papers, and various items of male attire. Plaintiff complained that she had been injured in her credit and reputation by the proceedings taken by the defendant, and that she had been put to much expense in recovering possession of the goods. Damages were laid at £1000.

The defendant pleaded not guilty, and re- lied upon the Wills Probate and Administra- tion Act (section 14, 113, 116, 117. and 133), section 354 of the Crimes Act, 1900, and sec- tion 28 of the Police Offences Act, 1901. He further pleaded that he received a Judge's order to collect the estate of one Edward Ar- thur English, deceased, and that thereupon Stephens went befere a Justice, and showed him on oath reasonable cause to suspect that one Henry Louis Burton had unlawfully on his premises certain property of the defen- dant, as such Curator. A search warrant was subsequently issued, by virtue of which the plaintiff's premises were entered, and the goods claimed by the Curator removed, this being done bona-fide, and without malice or negligence.

Plaintiff, in the course of her description of what took place during the process of carry- ing out the search warrant, said that A. C. English, who was present, said to tho police, "Get all the correspondence between the girl and my brother." Witness then said, "Do not take my letters. Why did you not come to me instead of taking this outrageous step when you knew of the engagement between your brother and myself?" English replied, "I do not want to hear any such tale," and he then read the letters, and put them in his pocket.

During the cross-examination of the witness, Dr. Brissenden referred to several places at which the witness had resided, and asked her "Is it not a fact that within a week of Eng- lish's death Bean, or Burton, was wearing

deceased's clothes?

Witness: Not to my knowledge. Q: Well, his watch? - Yes..

His Honor: It is a very curious transfer of property. There is no will and no adminis- tration. No doubt for the purposes of this trial the property has passed to plaintiff, but still it is a curious transmission of pro- perty, and one I have not heard of before.

Dr. Brissenden (to witness): Did you not send this man Bean to the funeral, wearing a watch which at one time belonged to the late Mr. English? - I did not send him to the funeral.

Q.: Did you not know that he was wearing English's watch?- Yes; it had my photograph

in it.

Q.: Had not Mr. English a fairly good stock of clothes when he died? - An ordinary ward-

robe.

Q.: And were not some of English's clothes sold by Brown after English's death? - Yes. Before his death Mr. English requested me to sell some of his things. Some were sold be- fore his death, and some afterwards.

Q.: Did you not say at tho police court that you gave Burton some of English's clothing? - Subsequently I did. They were

about the house.

The Chief Justice: Then you spoke of Bean as "Burton" at tho police court? - Yes.

Dr. Brissenden: Did you not say this at the police court: "I think Burton has worn some of English's clothes since his death?"

Yes; I had given him some things after Mr. English's death.

His Honor: When you spoke of Mr. Burton at the police court, you meant Mr. Bean? Yes; they got speaking of him as Burton.

Dr. Brissenden: Did you not call him Bur- ton in your evldence-ln-chief at the police court? - I may have done so, because they mixed up the names so.

Q.: And what has become of Bean, or Burton, now? - He is still lodging at my house. Mr. Edward Heffernan, son of the   Rev. Mr. Heffernan, and Mr. and Mrs. Mel- ville are also lodgers at my house.

Q.: And Mr. Bean is a lodger like anyone else? - Yes.

The Chief Justice: How does he earn his livelihood? - He is a retired elderly gentle-

man.

Re-examined by Mr. Piddington. The watch which had been referred to was given to her by Mr. English before he died. She took it home, and perhaps the next day or the day afterwards, she gave it to Mr. Bean as some recompense for the kindness he had extended to Mr. English.

Q.: It is a fact that Bean did a great deal for Mr. English during the latter's ill- ness? - Yes; and he became very ill himself through it.

Q.: Mr. English, before his death gave you some instructions about some white duck clothing that he had worn at New Guinea? - Yes; some time before his death he said he did not care for them, and, as he should never require them any more, I might put them into stock and sell them. But they were not all put into the shop at once.

Arthur Bate Bean, who described himself as a retired wool and leather merchant, for- merely of Adelaide, gave evidence as to the circumstances attending the seizure. He also admitted having accepted from plaintiff a watch, formerly the property of the late Mr. English, and said that as plaintiff gave it to him as a recognition of his services to de- ceased while he was ill he had n0 compunc- tion about accepting it.  

The case stands part heard.

Digitisation generously supported by
Vincent Fairfax Family Foundation
Digitisation generously supported by

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