SUPREME COURT.

Lyttelton Times, Volume XXIX, Issue 2340, 23 June 1868, Page 2

SUPREME COURT.

In Bankruptcy. Monday, June 22, (Before Mr Justice Gresson.) His Honor held a sitting under the Bankruptcy Act, 1867, in the old Town Hall, at 11 o'clock, this morning. Adjourned Cases, re ferdinand angus thiel. This case was called on—Mr Joynt being on the record. Mr Joynt said that on the last day, he stated that he had no instructions to act in the matter, as the bankrupt had absconded. His Honor would recollect that he was about to dismiss the petition, but on the application of Mr Raphael, the trustee, the matter was ordered to stand over. Dr Foster said that the matter ought not to have been set down. There were funds in hand, which would be distributed amongst the creditors. The Registrar said it was the custom to set down all cases which stood adjourned ; no additional expense was entailed. His Honor again ordered the matter to stand over—the trustee to take such steps as he thought necessary. RE THOMAS TENNANT. This case stood adjourned in consequence of the bankrupt not having been able to file his accounts before last sitting day, tho books being in the possession of Walton, Warner, and Co. Since then, however, the bankrupt had filed his accounts; and there was now no opposition to his discharge. Mr Twentyman is trustee.

His Honor complained of the bankrupt not having made entries of the persons from whom he received goods, It was necessary that a better system of keeping books should be adopted by tradesmen. In this instance, the report of the trustee was favourable to the bankrupt, and as there was no opposition, he would grant the final order of discharge, bankrupt to have his costs. Mr Wynn Williams was solicitor for the bankrupt, KB EWEN CAMERON JI'IIILLAN. On the application of Mr Slater, for the bankrupt, this case was adjourned until next day of hearing. KE JOUN AGNEW SHAW. Mr Gnrriek appeared for the bankrupt, and applied for the usual order of discharge. His Honor said the balance-sheet was very unfavourable to the bankrupt, as there were no assets whatever, the whole property being taken under a bill of sale.

The bankrupt, in reply to his Honor, said that the bill of sale was executed about three and a half months before the period of his bankruptcy. His Honor said that the giving of bills of sale in this manner was very reprehensible. If a tradesman found his affairs going to the bad, he ought at once to give over his property to be administered according to the Act, instead of preferring one creditor to another. There was no opposition, and he would order the bankrupt to be discharged. Order of discharge made accordingly. lIU WILLIAM AND ALFRED COKTIS AND JOHN

STAIKSUY JIUKWir. The bankrupts formerly carried on business at Ashley Hank, near Rangiora, as farmers, under the style of •' Curtis, Murphy, and Co. Liabilities :-To creditors, unsesecured, .£361 ba 7il; do, holding security, £l3 2s fid; do, to be paid in full, wages, £l6 7s; dodo, rent, £57 103; do Alfred Curtis, unsecured, £l6 IBs : total, £463 2s Id. Assets j-Debtors good, £4 17s Gd ; property given up to our trustees-interest in 100 acres land improved, £3O ; do, reaping machine, horse, and sundries, £6l 10s; do grain, £47: total assets, £143 7s 6d; 'deficiency of firm, £30718s 7d jdo of Alfred Curtis £l6 16s: total deficiency, £324 14s 7d. Memorandum.—The floods in the Ashley* —the cause of our losses-having carried away our books, clothing, and everything, we are not in a position to go to any expense in making out detailed accounts: but from memory, and some few memoranda, we find that we spent in labour, improvements, and living, £419 16s for the year past, as per detailed statement appended. Expenditure in improvements, labour, &e., on the farms on the Ashley and Rangiora, £419 16s. Breaking up 28 acres, at 245, £33125; ploughing and harrowing, at 275, £BO ; rolling, £6 ; seed wheat, £1,5 ; oats, £l2 ; carting, £6 ; wages, and found, one man one year, £6O • rent and lease expenses, £l9 4s : two horses bought, £4»; hired, £3 ; stores, clothing &c, for three, £100; bouse cost, £3O ; horse feed, £10: total, £419165. Mr Graham, the trustee, reported as follows : -i. That I have, after considerable delay, been enabled to arrive at an approximate statement of the bankrupts' affairs, but the loss of their books makes this statement a very unsatisfactory one to the creditors, the expenditure only, without the receints, being shewn. 2. That the supervisors attended at my office, and examined Mr William Curtis upon the report and statement of account as filed herewith, and they expressed themselves dissatisfied as to the bankrupts' conduct ihey complain that the Messrs Curtis attended on Bomeof their creditors on or about the sth of March last, and stated they could pay 10s in the pound, afterwards that they could give 5s in the pound, and that immediately after this statement the Messrs Urtts went to a solicitor and filed a declaration that they were unable to meet their engagements with their creditors, and this without consulting with their creditors, and when no undue pressure excused them for this step. They also disapprove of the sale of two horses for £SO, and the greater part of the proceeds, without the consent of their partner Murphy, being appropriated lo law costs, especially as all this expense would have been avoided, had they consulted their creditors. Under the circumstances, I can make no recommendation to the Court although I have found them willing and ready to assist me in securing the crops and realising the estate.

Two separate petitions had been filed, but on the last day of hearing, the matters were consolidated-Dr Foster to have carriage of the proceedings. n? is n Ho i nor said t,ie "Port of the trustee (Mr Graham) was unsatisfactory, and he quite agreed with that report, and thought that the Court was bound, where it found the conduct of the bankrupts, or any of them, unsatisfactory, to visit the bankrupt with its censure.

Dr Foster applied for a further adjournment of the matter.

His Honor said that the order which lie was disposed to make was one of final discharge, suspending relief for a certain period. Mr Joynt apprehended that the suspension would not apply to Murphy, but to the others only.

Mr Murphy said that he could not again come to Christchurch, except at considerable expense. His Honor made an order of discharge as regards Murphy, and ordered the others to appear on the next sitting day. New Cases, re william iiaine. On the application of Mr Joynt, this matter was ordered to stand over until the next day of hearing, the bankrupt not having filed his statement of accounts in consequence of illness.

BE THOMAS ANDERSON. The bankrupt is described as of Christ■church, blacksmith. Liabilities—Creditors unsecured, £229 15 2d: wages to be paid in full, £5 19s; total, £235 14s 2d. Assets —Good debtorß,£so; doubtful do, £5817s 6d; bad ditto, £36 5s 6d; property at present in my chaTge, consisting of furniture, stock, and business plant, to which I am entitled by the Act, £2s*; total assets, £SO; deficiency, £lB5 14b 2d. His Honor said he perceived from Mr 'Graham's report, that the bankrupt did not "Sfiord all the facilities to the trustee which he was in duty bound to give, and under these •circumstances, he could not make the final order. He would adjourn the case until the next day of hearing, and it would depend on the bankrupt's conduct towards the trustee whether the order of discharge would even then be made. Adjourned until the 16th July. RE DAVID BLOOM. The bankrupt formerly carried on business as a grocer and general dealer in Colombo street. Liabilities: to creditors unsecured, £949 Is 8d ; to creditors holding security, £250; to creditors claiming in full, £l6 Is; total, £965 2s Bd. Assets: cash in hands of trustee, £316 3s; good debts. £25 14s Id ; furniture, £3O 12s; leasehold property (£350, less mortgage £250) £IOO ; t0tf11,£4729s Id; deficiency, £492 13s 7d. Mr Graham, the trustee, reported as follows :—l. That at the request of the principal creditors I took charge of the bankrupt's business immediately after he had 'filed his declaration, and held the same until the whole of the stock was disposed of. 2. That with the assistance of the bankrupt, Mr William Fisher, accountant, has prepared a very elaborate statement of his money and goods traneactions from the Ist July, 1867. This statement has been prepared with much care, and at considerable labour, from verbal statements made by. bankrupt, loose vouchers, 4nd bank and other books roughly kept, and is i> far perfectly intelligible. 3. The superiors, however, object to several items in these accounts, and intend examining the bankrupt upon the several questions appended at the end of this report, and ho will thus have an opportunity of explaining them, as I have furnished him with a copy of the same. Mr Graham applied for an adjournment of the case until next day of hearing, on the ground that there were Borne items of account about which the supervisors desired to make further inquiry, Mr Wynn Williams, for the bankrupt, said that he should have to apply for maintenjnee; the bankrupt had a wife and six children, and it would press rather hard upon him to have to remain doing nothing for a longer period.

Mr Garrick appeared for the petitioning creditor, and stated that there were several 8 pages of accounts which had only been put I 1 into his hand 6 that morning by Mr Twenty- 8 man, who received them on Saturday after- 8 noon. It appeared that a portion of the l estate hnd been made over improperly, and in * order that the supervisors might have time v to inquire into the matter, it was necessary T that the hearing should be adjourned, d In reply to the Court, Mr Graham said that a the assets were nearly realised. There would 8 be sufficient to pay about five shillings in the ° pound. a _ His Honor refused Mr Williams' applica- ' tion for maintenance, and ordered the matter n to stand over unttl the 16th July, on the t understanding that Mr Garrick is not then to 6 press for a further adjournment. c BE JOHN BAINBKIDGE DRAKE, 1 The bankrupt was brought into Court on r the petition of Turnbull and Clarkson, of t Timaru. „ Dr Foster applied for an adjournmentof the f matter until the next day of hearing, on the g ground that the bankrupt had not had time a to file his statement of accounts. r Mr Wynn Williams, for the petitioning creditors, said that he would have to apply, t under the 92nd section of the Act, for an r order to place the bankrupt under arrest. He il would be able to shew that the bankrupt had t been in the wrong from beginning to end. f He Sled his declaration on the 28th of March t last, and did not follow up the proceedings b upon his act of bankruptcy. Some time after v filing his declaration, he took out an auction- j] ■ eer's license, sold a large portion of his pro- a perty, went to Dunedin on pretence of settling d with his creditors, and refused to make an t ■ assignment of his property to his creditors on i their agreeing to take a composition of fifteen <, shillings in the pound. " t His Honor asked if Mr Williams meant to a make the application now upon affidavit. ) Mr Williams said he proposed to examine i the bankrupt, and to found his application on t the facts brought out in evidence. He would \ refer his Honor; first of all, to the trustee's c ■report. c His Honor read Mr Clarkson's report, as t follows: i The trustee, in his report to the Court, 1 regrets that he cannot furnish so satisfactory i a statement of the bankrupt's affairs as he i would wish, in consequence of the difficulty s of obtaining the necessary information from 1 him. Having written to him several times in I reference to important matters connected with I the estate, and not having received from him i the assistance he required, he must briefly i state the facts as they came uuder his obscr- ] vation. From letters found in the bankrupt's deck, I it would appear that he was in difficulties in January last, and went on renewing aecep- i tances till March. In that mouth he went to i Dunedin to compromise, if possible, with his '. creditors, by offering after considerable dis- ' cussion 12s 6d in the pound by bills payable i at 2,4,6,8, and 12 months' date, which was I not accepted. Messrs Clarkson and Turnbull, , who were creditors for at least two-thirds of the amount owing by the bankrupt, offered to pay his creditors 15s in the pouud, payable at 2 and 3 months, if the bankrupt would assign bis estate to them, which he refused to do. He then left Dunedin about March 19, took out an auctioneer's license, for which he paid £4O, and sold a portion of his stock in Timaru, by public auction, on the 27th and 28th March. I have requested the bankrupt to furnish me with the amount he realized, and the prices obtained at that sale, and he tells me that he could not do so, as the auction sale book was lost; he said there was only £99 18s 9d sold both days, which amount he requested his shopman (Mr Stephenson) to hand over to Mr J. Younghusband. 1 received that amount from the bankrupt on the 30th March, less 5 per cent, commission charged by Mr Younghusband, which amount I recovered afterwards in the Resident Magistrate's Court. As trustee, I lmve "tried all possible means to find out the amount sold by the bankrupt on the 27th and 28th March, by offering a reward of £5 for the missiug salebook, and requesting all persons who purchased goods at the sale to state the amount of such purchase to me. By this means nnny persons who purchased goods at that nuction came forward and supplied me with the necessary information, and I find that nearly £l6O was bought by residents in the town alone; from others who attended the lale and reside in the country I have been unable to obtain particulars. From information I received I think there was over 500 lots sold, which the bankrupt states only realised £9918s 9d. Another important matter to which I wish to call the Court's attention is that the bankrupt, on the 24th March la«t, sold to Mr Younghusband goods amounting to over £GO which he has never accounted for or entered in his hooks in any way, and it tras by accident that I discovered the account made out in the bankrupt's handwriting that enabled me to recover the amount from Mr Younghusband. When I enquired of the bankrupt about the account and why the goods were not entered in the usual way iu his books, he appeared very much confused, and stated that he believed the goods had not been delivered. I immediately made enqnities of a verson who was in his employ at the time, and found that the bankrupt had ordered these goods to be takentoMrYounghusbaud's on the morning of the 27th March, and they were delivered. I at once made the account out and applied to Mr Younghusband for the amount which he refused to pay. I then pro ceeded to recover the amount in the Resident Magistrate's Court and obtained a verdict, having proved the delivery of the goods. The bankrupt, on or about the 26th March, left the dwelling-house occupied by him, and

a considerable portion of hia furniture was removed. When questioned about the disposal of his furniture, he said he sold the whole of it as it stood to Mr J, Younghusband, for £35. I wrote to Mr Younghusband in reference to this matter, and requested if he had any goods belonging to the bankrupt in his possession, to hand them over to me at once; when called upon afterwards by myself and one of the supervisors, he said he had bought the furniture of the bankrupt for £35. When asked to produce the receipt he 6aid it was lost or mislaid with other documents, while he was away in Christchurch. A few days afterwards he furnished me with a list of the furniture, and handed it over to me in the presence of one of the supervisory and told us that the bankrupt had given him back the £35, for which he held a receipt. The next important matter is the sale of 20 shares in the Timaru Building Society (worth at the time the bankrupt sold them £l2 12s per share) vliioh he sold to Mr 6. Healey the day before hia adjudication for £6 per share, and the arrears and subscriptions amounted to £l7 odd, making in all £6 17s per share. It io my intention at once to apply to the Court for an order to set aside the sale, for the person who bought them is chairman of the society, and knew the value of them, and was well awnre at the time that the bankrupt was in difficulties, and would (to use hia own expression) soon " smash up." I have seen Mr Healey and told him of my intention to apply to the Court to have the sale set aside. The bankrupt received £l2O for these shares, and has never accounted for it to me. When requested by me to hand over what ca3h he had, he said he had spent a considerable amount in expenses.

The bankrupt had also disposed of other property, viz,, a horse and cart to his brother-in-law only 4 days before his adjudication, for £33 10s, which amount I have not received.

The house and section which he possessed, and in which he resided to the date mentioned 27th March, he stated that 4 days before he filed l)is declaration of insolvency, he let for three and a quarter years to Mr Younghusband at a rental of £2O per annum, Upon enquiry, I found that the house had been re-let immediately for £75 per annum by Mr Younghusband, and when I requested him to produce the agreement it could not be found. I have had the rental of the house, valued by Messrs Stubbs and King, who have had considerable experience in the valuation of property in this town, and they state that £75 would be a fair rental; since then, by the active measures taken by me, Mr Younghusband offered to hand the house and furniture back to the estate, which offer 1 accepted, and have ordered both to be sold by auction. Upon taking possession of the bankrupt's stock, I found considerable waste had taken place in consequence of the premises being so long closed, which had been caused in consequence of the bankrupt filing his declaration of insolvency on the 28th March, and then taking no further steps in the matter, which rendered it necessary for a creditor petitioning to obtain an order from the Court, during the whole of which time, from March 31st to May Bth, the place was closed and

great destruction had taken place. Upon obtaining possession, I immediutely caused an inventory to be taken of the stock remaining, which was valued at trade prices at £6BB, and realized by auction £67G Lis 2d. As the bankrupt valued his stock at £I6OO Ms

6d, and only accounts for £9918s 9d proceeds of goods sold by him at auction; this, with the sums recovered as I before slated, from Mr Youiighusbaod (£72 10s lod), mako a total of about £751. I should say there was nearly £IOO destroyed by vermin, and allowing thi«, I am at a loss to account for the deficiency, which is over £OOO. The statement of his assets and liabilities is annexed its delivered to me by the bankrupt.

From the peculiar position in which the trustee finds himself placed as one of the principal creditors, ho feels some hesitation in stating fully the views he entertains of the bankrupt's conduct, but he cannot refrain

from stating, upon impartial examination, that the bankrupt's conduct throughout has been one contiuued attempt to depreciate the value of the estate. This he is fully borne out in by the sale of the Building Society shares at one half their value, when they were disposable at any time at their full value; the sale of his furniture to Mr Younghusband for one-third of its value; the letting of the house at one-fourth of its value, and the unnecessary expenditure of money for an auctioneer's licence for two days' sale (which he slates only realized £99 18s 9d, but as before stated realized £170) ; the neglect to take proper care of his auction sale hook which has occasioned great inconvenience and considerable loss, and destroying all reliable evidence of amount sold ; the neglect on his part to take the necessary steps, after protecting himself by filing his declaration of insolvency, to take any further steps in the matte.whereby the stock-in-trade was considerably depreciated in value; the state in which the stock was left endangering the safety of a large block of buildings, and the unsatisfactory deficiency which exists from the valuation of his stock at £I6OO 4s 9d, and the sum realized amounting to £849 4s 9d, as great care has been taken by the trustee that no property should be sacrificed under its market value, and I regret to 6ay that the bankrupt's transactions with the parties mentioned in this report, appears to have been taken to defraud the creditors, and brings the bankrupt under the misdemeanor clause of the Bankruptcy Act. It appears to me on the whole that the bankrupt must have a large amount of casli in his possession, which lie has never accounted for, as he has not rendered any account of his auction sales, or of

the money for the shares in the Building Society, horse and cart, &c, and has not rendered any accounts, or given the trustee any information or assistance, excepting as to the book debts,

Mr Williams moved, under the 92nd and

93rd sections, for au order for the bankrupt's arrest, or for an order calling on him to give security for his appearance at the next sitting of the Court for examination. He would prove, by the evidence of the trustee, what he had stated to the Court in making his application for the order of arrest or security. He would first of all examine the bankrupt. The bankrupt, sworn, and examined by Mr Williams: 1 recollect going to Dunedin about the 13th of March last. I stopped there about a week or ten days. I went there to arrange if I could take up Clarkson and Turnbull's hills. I had a meeting of my creditors at Dunedin. I offered them 10s in

the pouud, on my own acceptances at two, four, six, and eight months, McCullum, Neil, and Co., creditors of mine, offered to pay my creditors 12s 6d in the pound, on receiving an assignment from me. 10s was guaranteed by them—s3 in cash, and 5s in bills—and the remaining 2s 6d was to be on my own bills. I don't believe that 12s 6d was offered in cash. Some one talked of it, but it was only a ruse. Mr Robert Wilson, on the part of a grocer in Dunedin, offered to give 12s 6d in the pound on getting an assignment of the estate. He said he would allow me to retain my furniture, my house, nnd the shares in the Timaru Building Society. I think the shares were worth about £l7O, I have put them down at £3OO. I sold them on the 25th March, aud filed my declaration on the 28th. I had paid about £l4O on these shares. I valued my furniture at £IOO, and the house at £3OO. I was unable to meet my creditors when I filed my declaration—l was bankrupt. There was j an offer made by Turnbull and Clarkson, in the first instance, of 7s 6d in the pound for my estate, and 15s afterwards on bills at three months, both of which offers were declined. I told my creditors that I preferred to allow my case to go into Court, Before having Dunedin, I told some of my creditors —Mr Dodds for one—that I would take out an auctioneer's license and sell. It was

whilst I was selling that I filed my declaration. I kept an account of what I sold in a book. I don't know what became of the book. I did not hand over the whole proceeds of that sale £9918s 3d—to Mr Clarkson, the trustee. 'I he sale took place on the 27th and 28th March. Mr Clarkson was appointed trustee on the Bth of May. Mr Youghusband received the proceeds of the sale. I did not wish to leave the money in the clerk's hands when I left to come to Christchurch; and having known Mr

Younghusband, I gave it to him to keep for me. I Bold the furniture to Mr Younghusband for £35; the furniture has since been handed back to the trustee. I don't dispute that I might have got the furniture back again. I cannot say that I arranged with Mr Younghusband to get the furniture back when I got through the Court, It was my intention to get it back, but there was no thorough understanding on the subject. I had a cheque for the £35, which I cashed, and spent the money. This took place a day or two before I filed my declaration. I did not place the money in anybody's hands for the benefit of my creditors. Mr Younghusband became tenant of my house at £2O a year. My own valuation of the house is £1 per week. I sold a horse and cart for £33105, which were not entered in the sale-honk. I did not give that money to Mr Younghusband to take cire of. On the 24th of March I sold a lot of goods to Mr Younghusband. I didn't get the money for them ; Mr Younghusband was to have paid me for them by a bill. There was no agreement in writing. It was a bona fide sale to Mr Younghusband, £99 odd were not the whole proceeds of the sale, for which I had taken out a license. There was a cheque for £8 19s given to MrClarkson, which was the amount realised by ths sale of goods not included in the sale. I went into 'J imam twice to hand it to Mr Clarkson, but forgot to do so. About the 21st of May I received a letter from the trustee, asking for a statement of my accounts. He asked me to give a detailed account of the sale. The reason of my not proceeding with my bankruptcy after filing my declaration was the default of my solicitor, Mr D'Oyly. The sale in question lasted two days. I won't swear that £IOB was all 1 received from the sale. I won't swear that I did not receive £l7O.

His Honor remarked that he did not k ow whether Mr Williams desired to proceed further. He had made out a prima facie case in support of his application. Mr Williams said that he might as well proceed with the examination, and get all out at once.

Examination continued—The cheque for £9 3s 6d, dated the 7th April, handed by me to the trustee, was in liquidation of an account which wss due before the sale.

Cross-examined by Dr Foster: My declaration was prepared on the 27th of March, and filed by Mr D'Oyly, of Christchurch, next day. I have not now in my possession any part of the proceeds of the shares. I have not any portion of the proceeds of the sale in my possession. The furniture sold to Mr Younghusband has been returned to the trustee. I have used the £33 ](H which I got for the horse and cart. I held the sale by the advice of Mr DodJs, a creditor. Re-exnmincd by Mr Williams: I received

the money for the shares from the purchaser. I returned the £35 to Mr Younghusband. I have spent the amount I received for the shares (£120), and the £33 10s besides, the proceeds for the hor.-c and cart. Mr Dodds did not advise me to file my declaration ; his advice wag altogether independent of filing my declaration. He merely advised me to hold the sale. I sold my furniture because Miles and Co. and Russell and Co. were pushing me; I sol t the furniture to prevent their taking it.

David Clarkson : I am trustee in Drake's estate. I wrote to Drake asking for full pariiculi'S as to his estate, ffe did not furnish me with the particulars I requested, I knew of the sale which he held on the 27th and 2Slh of March. He did not give me an account of that sale. He told me that Mr Yonnghiisband had £99 in his possession, the proceeds of the sale. I offered £5 reward for the missing sale book. I advertised for the persons who had bought goods to give information as to their purchases. Persons in town came forward and brought their accounts.

Dr Foster raised objection to the contents of these accounts being taken in evidence, His Honor allowed the objection, and Mr Williams proceeded no further with the examination of the witness. Dr Foster addressed the Court on behalf of the bankrupt, contending that the Court must refuse both the applications made by Mr Williams. Mr Williams spoke in support of his applications.

His Honor: I do not say that the bankrupt Ims deliberately perjured himself. I would lie sorry to eay so—but from what has come to the mind of llie Court, judging from the remarkable way in which lie used the word "nominally" at varions time?, and independently of his own admissions in evidence, there is sufficient to satisfy me that there is probable reason for believing that there in danger of his removing or concealing, with n fraudulent intent, a portion of his property, and under those circumstances, I must issue an order-of arrest.

The bankrupt was immediately taken into custody by the Sheriff, and by him transferred to the bailiff, Mr ltichardsnn.

The Court adjourned until the 16th July next.