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SUPREME COURT CHRISTCHURCH., Ashburton Guardian, Volume 2, Issue 395, 14 July 1881
SUPREME COURT CHRISTCHURCH.
At the nisi prius sittings of the above Cbuijt,. yeaterday^^thcfolio wing case of interest foA shbufton, readers Was' commenced before his. Honor Mr Jdstice Johnston, and a special' jury, of which Mr 0. R. Rlakistoh was chosen foremnn
CREDITORS’ TRUSTEE OF JOHN FRASER AND
' - OTHERS V. BROWN AND BEAUMONT. Mr Joynt appeared for the plaintiff; Mr Garrick, with.him Mr Holmes, for the defendants. This was .an action between the Trustees in bankruptcy of John' FraseV - ,' Alexander Dqnlop, and Daniel Hander-' son, trading at .Mount Somers under‘the style ,of John . Fras.er and. Co., and WilHam Brown and John Beaumont, assigned under a dead, of the joint and separate estate of the same firm, the object of f the action being to have the said deed set aside, in order to allow the debtors' estate to go for the benefit of the separate, its-well as the joint creditors. Mr Jojynt called the following evidence
Hugo Friedlander : 1 1 am creditors’trustee in bankruptcy of'John Fraser, Alexander Dunlop, Nicholas Grigg, and George Guild,' who carried on 'a' firm of contractors under the name of Fraser and Co. ; also trustee of the -firm of' Ffkser and Dunlop ; also of 'the • firm of Grigg and GulM j atso of John Fraaor ? Alexander Dunlop, and Daniel Henderson, who traded under the name of JohnFraserand Co. The first-named carried on business at Tinwald. Fraser and Dunlop were contractors also at Tinwald: ‘ -Grigg and Guild lived at Westerfield,' near ‘ Ashburton ; they also were rconlractort.’ John Fraser and Co. were storekeepers atJMount Somers, about 25 miles ’’from Ashburton. I had, as a mem- • borof Friedlander Bros., dealings with all, and Daniel Henderson separately.' We were creditors of the'joint estate, ai>d of the> several estates. Wo dealt with the Mount Somers firm eversince they opened ' business—about the- beginning of' 1880. .They had been only- six months in busi.ness when they called a meeting' of credi.ton. On June 9, 1880, that firm was indebted to us to the extent of L6l>l9s 7d. Of this L 29 7s 3d was on -account- Of a promissory note, the rest was for goods' supplied. The note was signed ‘.‘John •Fraser and'Co'.” - We tendered to thetrustee proofs of the debt. They were not returned to its. I received alerter on
the subject from Messrs Garrick and Oolishaw, rejecting our proofs [letter read]. On June 9 we had a claim against .Daniel Henderson for‘L23 3s 7<L -The', claim against John Fraser and Oo.; is still un-.-satisfied. We tendered a proof of the ■ claim against Daniel Henderson and it was rejected. On June 9we .were creditors of the firm of Fraser, Duulup, Grigg, and Guild to- the amount of -. L 1,354 7s; Bd, consisting of a promissory note for L 1,298 15s 2d; signed by all of them, and a current account for goods. I.tendered a claim for the amount of the note; and it was rejected. All these claims are still unsatisfied. I attended no meeting of the creditors of Fraser and- Co., relating to the deed pf assignment in dispute. I believe the firm had- notice of the meeting. I did not see the Of my own knowledge I don’t know that a notice was received, by our firm. 1 know that my brother atr tended a meeting of the joint creditors, called by Henderson. [Mr Joynt read and put in-the minutes of two meetings of Jphn Fraser and Co.’s creditors.] I know of. separate,assets of the individual members of the'firm of John Fraser and Co.' John Fraser had an interest in the Ashburtfin railway contract. Henderson had a house in Ashburton. 1 bought the sectioii for him, and built the house. I kllow that a’ certain amount of ' the cost
has been paid; off to the' Ashbnrtpn Building Society. by "Mr Gkirick: We had accounts with each fitm—John Eraser,- and Co., and Grigg, Guild; and Fraser. The account Of Daniel Henderson is not in this book ; my clerk has not brought the ledger in which it is. There is an account against Grigg and Guild. There is no such account
as Fraser and Co. I have an account of Grigg and Guild’s estate, in which 1 enter my expenses as trustee. Henderson told me that the Mount Somers
firm was Fraser, Dunlop, and himself.
Their account shows their indebtedness exclusive of the promissory note. The account of Fraser and Co. shows an indebtedness of L 1,298 odd on accpunt of promissory note. All four told me they were partners, and asked me to open an account. The promissory note was given for railway sleepers, and had not, as far as I know, anything to do with the Mount Somers firm. The accounts were rendered to Messrs Grigg, Guild, Dunlop, and Fraser. My brother attended a meeting of the creditors of the Mount Somers firm, who were going -to make an assignment. Henderson'told mo a number of bills’ were coming due and they wished to arrange for them. I did not know that they were going to make the assignment 1 know now that they were going to assign. I gave my brother no instructions. 1 cannot remember that he reported what he had done. There are three of us None of us attended the meeting your office. I saw the notice in the paper [Notice read.] —Re-examined : There is a bill for L 27 9s 3d due July 4, 1880, signed John Fraser and Go. [Produced.] The next is a promissory note signed by John Fraser, Nicholas * Grigg, George Guild, and Alexander Dunlop for L 1,298 15s 2d. That is the note in my claim against Fraser and Go. The last I heard of Fraser was that he had gone from Napier to some gold diggings near Sydney. [A number of documents were here read, also assignment of contract, etc.] ■ John Beaumont, one of the defendants : I am a member of the firm of Wood,
ShandandCo. I produce the accounts with John Fraser, relative to the railway contract. The balance due to Wood, Shand and. Co. is LI, 927 12s 7d on the contract account. Most of the items are cash advanced. I produce account against Fraser and Co. in connection with the Malvern' water-race.' It is 'the same Fraser. This account was continued in , the Ashburton railway account. LI,OOO of the . forward is for horses aha plant. The aruounts paid by Government on account of the railway are shown in the ledger [produced]. A payment of L1,193' 9s Id Was made in September, 1880. [The witness gave a detailed list of the accounts.] —To his Honor: On June 9 we anticipated that on the closing of the railway contract there would be a balance of a few hundred "founds in favor of John Fraser and his partner; Dunlop. I did not know of any other partner in the contract.—To Mr Joynt: The transfer of the horses and plant for LI,OOO was arranged, witfljphn Fraser, not by me, but in the office. Looking at the entry, 1 should say the sale was effected on August 4 I was then in England. I produce a letter from John Fraser to Wood, Shand and Co., dated June 4, 1880, offering to return the horses and plant. [Letter read.] Our firm replied, on June 7.' [Bead; it stated that the horses and plant had been sold, not .lent, to Fraser.] Furthercorrespondence between the respective solicitbrs of Messrs Fraser and Wood, Shand and Co., was read. —Cross-examined by Mr Garrick:. I have- no personal knowledge of the sale of the horses to Fraser. The amounts coming to me from the Government were by virtue of the assignment of the contract. The Government agreed to the deed. We jaid the deposit of L4OO for Fraser when le tendered. There is a balance of L 596 0s 2d, including the L4OO, due from Government. There is how due to us from Fraser, L 740 4s lOd, Without interest, from Jurie, 1880. —To his Honor: Fraser would owe us a balance of L 144 4$ Bd.
Re-examined: That, account is made up partly of the LI,OOO for the plant, and interest onit. 1 The interest was 10 per cent., and there was 15 per cent, commission on the highest amount of the overdraft. The goods would be sent sometimes to John Fraser, and sometimes to Fraser and Co. -Idon’t suppose the storeman would know.
Alexander Dunlop : I am member of the firm of Fraser and Dunlop ; also with Fraser,- Grigg, and Guild, called Fraser and Co. ; also partner with Fraser - and Henderson, at Mount Somers. Fraser and Dunlop carried on -the contract for water-works at Malvern.. Fraser and Co. were contractors for the railway, having ah assignment of John Frier’s contract with the Government. A draft deed of assignment was sent u|» tfl us by the •solicitors of Wood, Shand, aud. Co. It was not signed. Fraser had it. He has left the colony. Fraser has-been seen in New South Wales.. A letter has been ■recently received that he has been seen in the bush with a survey party. The deed was a general assignment of moneys, piant, and everything connected with the firm of Fraser.and 0o„ . It referred to the railway contract. Fraser and Co. had considerable liabilities on June 9. [The four days’ statement was here produced.] —Cross-examined by Mi Holmes : I received a writ from Wood, Shand, aud Co. just before the assignment. I ne'er read the Jour days’ statement of John Fraser and Co. I saw Fraser and Henderson sign it, and I was satisfied. John Fraser is the business man of the railway contract, »nd of Fraser and Dunlop. Henderson had charge of the Mount Somers store. I was to put L2OO into this business, but did not. I believe Fraser put money into it; I don’t know if Henderson did. Mutch and M’Kenzie were : creditors forabout L7*
George Guild, a member of the firm ol Fraser and 00.,- gave confirmatory evidence. -
David Thomas, auctioneer We sold a. lot of horses and contractor’s plant on the order of Mr Brown._ They were on James : Stark’s premises, Lincoln road. The sale realised gross L 651 19s 6d, and net L 403. His Honor ; What, L 250 expenses !
Witness: There were a lot pf expenses to pay for the' horses to start with. I don’t know what the ' net proceeds were. The account sales give L 559 14s 6d gross, and L 521 2s Id net. It was sold as Fraser’s estate. I can explain any mis* take. There is over LIOO worth of other goods added in the rough auction book. There was an entire horse sold. Mr Durilop—recalled: There was a gelding in my private account, which was sold at the' same sale. Mr Brown took possession of him. Nicholas Grigg gave similar evidence. Daniel Henderson corroborated his partner’s evidence. The fact that several firms had separate creditors on July 9 was admitted. ' ■, William Anderson, Saddler at Ashburton, valued Henderson’trhouse at L3OO. This was the case for the plaintiff. His Honor hinted to Mr Garrick to move for a nonsuit.
After considerable discussion,- in the course of which Mr Garrick quoted Jones v. Harver, 40 L.J. Queen’s Bench 59. The following evidence was taken for the defence
William Brown, examined by Mr Holmes :—I am manager in Christchurch for Messrs Sargood, Son, and Bwen. I know Fraser and Henderson. They came to see me in May 1880 in reference to a writ served on them for a bill of Wood, Shand, and Co., dishonored by them their firm was John Fraser and Co., Mount Somers. We also had an overdue bill of theirs. I told them their only course was to file or make an assignment. They agreed to call a private meeting of their creditors at-, oar office. I took the minutes. The debtors made a statement of liabilities and assets, showing that, they: had stock ,of something like LI,OOO, book debts of about LSOO, and liabilities of about LI,200!. In addition they furnished' a statement that Fraser’s share of a contract to come in would be at the lowest Ll5O. Dunlop was not present, but Fraser made a similar statement on his behalf. Hendorson made a statement that he had a house, the equity of redemption of which he valued at L2OO. This made in all about L 2,000 assets. They therefore showed the creditors a surplus of close on LBOO. They were informed that they would have to file, or make an assignment of their Mount Somers store. The assignment was agreed upon. The resolution was- “ That , in consideration of Messrs Wood, Shand, and Co. withdrawing legal proceedings, the estate be assigned to Messrs Brown and Beaumont, to be carried on for the benefit of the creditors.” Fraser and Henderson told me that Fraser and Dunlop were to have contributed L4OO each, and Henderson vfas to have given L2OO, but that all they could give now wonld be Ll5O each, the amount the were to receive from the contract. No proofs of debt were given, but Mr Friedlander said that his firm was a creditor for about LSO. After that meeting the deed was prepared./ Mr Beaumont went with mo to Messrs Garrick and Cowlishaw’s. I believe Fraser went, but l’m not certain. I had never received notice of any act of bankruptcy on the part of Fraser and the others! There was no understanding that the debtors should receivpfavor on account of their signing the deed. 1 was present at a meeting when the deed was confirmed. It had been executed. —Cross-examined : The store business Was to be carried oh. That was the estate to be assigned- The debts were in connection with the Mount Somers business. . They said that the Ll6O coming to them from the railway contract would bp net, after paying their liabilities on that contract. Jt don’t think that they said it would be after paying their liabilities. No reference was made to debts in connection with that contract. They were to carry on the business as our servants. Nothing was said in my presence as to paying Henderson’s private., debts. There were running monthly accounts, for which we put down LIOO. That sum had reference to those accounts only.—Re-examined : They stated that they were ■ perfectly solvent —words to that effect.
Alexander M‘D. Cooper, Manager of the Bank • of Australasia, Christchurch, examined by Mr Garrick : The Bank was a creditor of John Fraser and Co. I was present at a meeting in your office. I consented to the deed of assignment. I had heard of their having dishonored a bill. My assent was bona fide. There was no arrangement as far as I know, that they were to get any benefit not mentioned in the deed.—To bis Honor ; 1 believed the deed was for the benefit of all the creditors.—Cross-examined : I was not aware that the deed was assigning the joint property of the firm, and the separate property of each member, for the benefit of the joint creditors only. At this stage the Court adjourned t}ll this morning when some further evidence was taken. His Honor directed the jury to be discharged as a motion for a decree of the Court was admitted.
SUPREME COURT CHRISTCHURCH., Ashburton Guardian, Volume 2, Issue 395, 14 July 1881
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