BE EDWARD WILLIAM MOREY.

Press, Volume XIII, Issue 1718, 27 August 1868, Page 2

BE EDWARD WILLIAM MOREY.

On the application of Dr Foster (for Mr Williams), an order was made in this case confirming the choice of trustee, and fixing Thursday, Bth October, as the day for the bankrupt's final examination and discharge. BE JAMES SMITH. On the application of Mr Joynt, an order of adjudication was made in this case, end Saturday, sth September, at twelve o'clock, appointed as the time for a meeting of creditors. BE LOUIS BEHXINEB. Mr Garrick, on the petition of W. Pratt and others, creditors of the bankrupt, moved that the examination of witnesses be proceeded with. Dr Foster, who appeared for the bankrupt and the witnesses, except Mr Trendwell, whom it was proposed to examine, objected to the motion. His Honor remarked that no notice of objection had been given. Dr Foster had not had time to do so, having heard nothing about the intended application till the previous day ; but he contended that it was unnecessary for him to give any formal notice of objection, as the order of adjudication made by the court was not absolute. A Bummons had been served on behalf of hie clients upon the petitioning creditors to the effect that they intended to dispute the validity of the bankruptcy. This matter would oome before the Court on Friday, and the witnesses ought not to be allowed to be examined beforehand, as the evidence might prejudice his client's case. Mr Garriok submitted that the summons issued by the Court under clause 323 of the Act was an absolute order, and his learned friend had no locus standi. Dr Foster was prepared to prove that the Court had no jurisdiction to issue summonses for the examination of witnesses until the order of adjudication was made absolute. His Honor said the point had never been raised, but all orders of adjudication had hitherto been held to be absolute. Dr Foster had authority to the contrary; and also to show that a creditor against whom an action had been brought by a bankrupt could not, whilst the action was pending, examine witnesses for the purpose of getting evidonce. Mr Twentyman was subject to a suit at th 6 instance of the bankrupt; and if the examination of witnesses took place now, it would injure the bankrupt in this surt. He could also prove that the Court did not make the order upon the but upon the trustee, and had now no jurisdiction. Mr Garrick protested against his learned friend being allowed to impute improper,motives to Mr Twentyman. The Court had no official knowledge of the alleged suit j and if it were required to refer to certain proceedings, notice must be given. The object of examining the witnesses was to ascertain whether any of the bankrupt's property was being passed to other hands, which there was strong reason to believe was th.3 case. His Honor said if any guarantee were given that the bankrupt's property wonld remain in statu quo until Frirluy, he would, if counsel agreed, allow the matter to stand over until that day. Dr Foster said the only three persons concerned were Mr W. Williams, Mr Preston, and Mr Berliner, junior, and he would undertake, on behalf of them all, that the property should remain until Friday in exactly the same position 88 it now stood. Mr Garrick said he wished, by at once examining witnesses, not only to prevent any future passing of tno propertyj but also to ascertain whether any of it had already been made away with, as ho was instructed some i £700 or £800 had already been improperly j disposed of; and the estate might be materially injured by an adjournment till Friday. Hie Honor would allow the case to go on, because it was clear, from Taylor, that it was not the practice for Courts to allow counsel to appear on behalf of witnesses to object to their being examined ; and prima fada t the order of adjudication was an absolute one. Dr Foster was not therefore in a position to appear either for the bankrupt or the witnesses. The examination of witnesses was then proceeded with. James Willway Treadwell, being sworn, stated—l was lately a prisoner in Lyttelton gaol for debt, and left there on the laet Thursday in July. Louis Berliner, the bankrupt in this case, was confined in the gaol at the same time as I was. I first wrote a letter for the bankrupt about his affairs to Mr Preston, Mr W.Wiliiaras'e clerk, and Mrßerliner afterwards told mo that a house and landed estate of his ;at the Ashburton had been sold to one Jrvine for £700, and that the sum of about £90, due to him by Dr. Croft, had been paid to Mr W. Williams ; that; bills had been taken from Irvine for the £700, and that, endorsed by Mr W. Williams, they had been discounted by him at the Bank of Australasia; also, that he had paid Mi- Williams *2{ per cent, on th.< £700 as commission for allowing the use of his name to enable Berliner to conceal the money from his creditors. lie further stated that lie was determined to "swindle" Mr Twcntyxnaa out of the £300 which he owed to him,'and/jfhjit lie could only dp eg, by putting tho oWs'in Mr Wtiliama'e.name iutp the-Bank of Australasia. He ajso asked mc if the bills could be again obtained from the aftyr haying beea dtfCQunte&> JJe saicJ %V-wished to. secrete "th'Jo money frona hie creditors and \o, eon'd; £300.'0f it by lifa tbrough. Hγ Williams, to Melbourne. In speaking o( tho bills being taken op again, I said if Mr Williama's name were erased from theia,

they would be liablo to be soizod h* ti d,tor 8; to which lie replied, care, ac Mr Raphael would diecounV ? d Ilot he should thue bo enabled Sj IDI °'N to Melbourne. He aeked mo to J * WiUmrn. asking ,h,t to ms ™f e m . order that .he might tike 7? Melbourne. I wrote two letters « ' ° more, to Mr Preston, clerk to M '^f and one of them, at all events, wne ndd-l. i oute.de to Mr Willi, mß . Berliner toll 'i that as booh as ho (jot out of prison lie .1 "JoAeFiji.; bait afterward. StSSj go to Melbourne and join his wife there IT received two replies from Mr Williame" ?! •aid nothing to mc about goin R to Hokitiku J do not know whether ho had the bills when'l,went to or returned from Hokitika. I know nothing about las financial concerns at that Dγ Foster declined to cross-examine. <■>,« witness. Edward Predion stated—Aa manacine c tav to Mr W. Williams I bad the mnnagemeiu o f the action of Twentyman v Berliner. I rooollect the trial of Berliner for arson ; about that time 1 knew that tho bankrupt dispoeed of some freehold land at the Asliburton, a B t<ir-> and atock-in-trado, belonging to him. H e not tell mc tho object of tho sale ; I adrised him that, should lie be c.mvioted, unless the I sale was bona fide, tho purchaser would be I liable to have the property seized by the Gov I eniment; I did not advise him to make over I the property; but ho told mo that Sir I Garrick had recommended him to <j-. I so in order to avoid all chance of iij t being forfeited to the Government, ft P was sold to Mr Irvino for £1030 * £250 of thia sum was paid in ensh to Mr Wi|! ? liams, and the remainder as follows: ona £100 bill for threo months, dated let Junoanother £100 bill due on the 4th Docembc • ? a £200 bill due on tho 4th of next March j' a £200 bill due on tho 4th Juno ; and auothcr £200 bill due on tho 4th Decomber, 1569 • \ the bills extending nltogothor over a period v| of eighteen months. A part of tho £250 went | to tho Union Bank to liquidato a debt for q which it hold the title deeds of the property, f about £116 to Matheson's Agency for thj 1 balance due on tho purchase of tho lund, part to pay the expenses of the trial, end tlie remainder to pay Mr Williams's costs. £250 in cash and a £100 bill were put into Mr Wil. liame's hands at the time, and £6 and come few shillings were also received from Mr Gur. rick. I paid £51 13s in cash to Mr Berliner on the 4th or sth of June. Tho balance in bills, amounting to £700, camo into Mr Wi!> liams's hands through Kano, Afunro, and Co, of Timaru. Berliner, I belio.ro, hud to diacount thorn, but they being long dated, he he failed io hie endeavour, Mr Williams then arranged that he should ondorso the bills get them discounted at the bank, hold the proceode, and as the bills wore mot, to pay tha money to Berliner, minus any costs due by the latter. The wholo money was to remain in Mr Williauis'a hands, and Berliner was to lose tho interest and discount in tho meantime and was also to pay a commission to Mr Williams for getting them discounted. jho lattor made tho arrangement in order to stM Berliner, who wished to got the bills discounted. I do not know how it assistod Berliner, but I did not make the arrangement. Berliner did not take the proceeds of the bills with him to Hokitika. The only money I paid him at that timo was tho £51 13j. lam euro he took neither the proceeds nor the bills with him, It was arranged that as- the respective bills fall duo they should bo paid to Borliner'i order. He did not give any money to too, nor to my knowledge to Mr Williams, upon his return from Hokitika. I am not aware that Berliner has repudiated the arrangeraont with regard to tho bills. Berliner also garo a bill to Mr Williams from Dr Cross for about £92 It was met when it becamo duo, about the 29th June ; and £50 of tho proceeds wera paid to Mrs Berliner in July. Berliner did not remonstrate at the time booause £300 bad not been paid to her, I saw an order of Berliner's on Mr Williams for that sum iv Mr Treadwell's hands; but it wee not paid aj being at variance with tho arrangement, Berliner afterwards asked mc in the gaol if the bills could be got out of tho bank; and I believe I wrote to him to the effect that they could probably be got out if tho discount were given up. Berliner did not romoEslraio with mo on account of £300 not boing paid. After I found what had.been done I verbally cautioned Berliner about the persona whom he employed to write his lottors. Iwn almost certain I did not write to him to that effect. So far as lam aware the bills remain ia tho bank, and the proceeds are in Mr Willicma'd hands, as the originalarrangement isstillinforcc. I do not hold a power of attornoy from Berliner. While he was in gaol 1 prepared a power of attorney for Mr Ryan, but it has been cancelled. I went over the bankrupt , ! books with his son, and steps were taken to collect the outstanding debts, but no moneys have been roceived. One judgment has been obtained for 30s in the Beeident Magistrate's Court. Berliner's eon had a waggon and horses, which I understood he received from his father in payment of £115 of wages due to him, and he has einco spjd them. Another waggon and two liorees have also been sold by Kyun under his power of attornoy. I have no knowledge of any action taken by Berliner for making away with his estate. I have not pince tho order of'adjudication was made endeavoured to induce the small creditors to accept payment of their accounts. Since Berliner was incarcerated, I hare told him that he ought to pay his debts, especially the email ones, but, did not advise him to do so in order to prevent Twentyman making him insolvent, 1 was present when Mr WillinsS3 gave en undertaking \n Court that Mr Twantynmn's debts should be paid before Friday, or judgment taken. We preferred to let judgment issue. Mr Williams held the proceeds of the bills at the time. I did not telegraph to Berliner when he waa on his way to JJokitiko , that a writ of arrest was out against him. Berliner's name doee not appear oa the bills at nil. The other withesc, Mr Berliner, Jan., whom it was intended ito examine, was noS w attendance. DAVIfI V. BIHPJOW. Thia case, set down for argOHieut on demurrer, was, by consent of counwl (Dr 03te ' and Mr Garrick), ordered to stand over until the first Chamber day after the civil sittings.