SUPREME COURT.—Wednesday. CIVIL SITTINGS.

Daily Southern Cross, Volume XXII, Issue 2738, 3 May 1866, Page 5

SUPREME COURT.— Wednesday. CIVIL SITTINGS.

[Before his Honor Sir G. A. Akney, Et.l Chief Justice Arney entered Court shortly after tea o'clock this morning. MACHATTIT3 AND EDMONDS Y. BATTBAY. This action was brought by Thomas Milne Machattie and Samuel John Edmonds against William Eattray, to recover the sum of £1,500, less a composition of ss. in the pound, from defendant, being the amount of a secured debt which the latter had upon the estate of Messrs. John Eattray and John Matheson, insolvent debtors. The plaintiff's allege that the amount? claimed was secured to them by a deed of assignment, dated 16th August, 1864, executed by the defendant. The real question at issue was whether the plaintiffs purchased from defendant his debt of £1,500 by a deed of composition. Mr. Wynn appeared for plaintiffs, and Mr. Grillies for defendant. Mr. Wynn stated the plaintiffs' case as detailed in evidence. Thomas Milne Machattie, examined by Mr. Wynn, deposed : I am one of the plaintiffs. I know the defendant. I knew a firm carrying on business under the style of Eattray and Matheson. I was a creditor of that firm. One of them is the son of defendant. They failed in 1864. After the failure I had a conversation with defendant about it. We had numerous discussions about the winding-up of the estate. I was a creditor to the amount of about £4,000. The estate came into the Insolvent Court. (Deed produced.) I see the signature of William Eattray to this deed. I was present when he affixed his signature, Eobert Bradley was the attesting witness. He is now at Poverty Bay. I see the sum of £1,500 opposite defendant's name. I put it there. I cannot say whether it was immediately before or after the signature, but it was during the transaction. I had a conversation with defendant relating to a mortgage he had on the property of Eattray and Matheson, before he signed the deed. I had the deed which was prepared by Mr. Jackson. I don't think defendant read the deed. I explained the contents of it to him. He was to assign all his claims against the esta*te to me. I was to give ss. in the pound. He proposed that arrangement and agreed to it. This might be a day or two before I presented the deed for him to sign. Defendant said he held a for £2,000, but had only advanced"£l,soo. I placed the £1,500 opposite defendant's name on the deed, either before or after he signed, but certainly after he mentioned about the mortgage. The deed was signed in my counting-house. Defendant was present when I placed the £1,500 in the deed opposite his name. The deed was handed over either to Mr. Eigg or Mr. Eattray's clerk. I have often seen it afterwards with both those persons. I acted upon that deed, and paid money upon it to Mr. Petsehler and Mr. Howard for the debts opposite their signatures. I never received any money in respect of that £1,500. Cross-examined by Mr.Gillies: I was a creditor of the estate for somewhere about £4,000. I was the largest creditor. Meetings of the creditors were held which I attended. Proposals were made as to how to keep the estate out of Court. It would be for the advantage of creditors to keep it out of Court. The estate was in Court when the deed was executed. The object of entering into the arrangement was that Mr. Eattray might get his release from Court. I think it was Mr. Edmonds gave instructions to prepare the deed. Defendant did not read over the deed to my knowledge. We had conversations about the deed every time we met. One conversation took place at the store door, I cannot give the wards spoken. It was immediately before signing the dcci. I cannot remember any particular conversation. I had made inquiry a3 to the amount of his mortgage, which he said was £2,000, but he had only advanced £1,500. I knew he held a mortgage, but I had not heard from him the amount. We agreed to give the ss. in the pound, in order to get the estate out of Court. I did not certainly understand that if I did not get the estate out of Court I was not to pay the ss. in the pound to those who signed the deed. lam not aware that the property mortgaged was good security for the £1,500. I believed the £1,500 was amply secured by the property. I knew the property very well. I am aware that it has been sold by the official assignee for more than £1,500. Defendant was afraid that his son would not be able to get his discharge. He offered to give the £1,500 to secure me against loss if I agreed to give the creditors ss. in the pound. His object, he said, was to keep his son from dishonour. I understood him to mean that his son would not be able to get hid discharge from the Court. The estate was not taken out of Court. I have only paid two of the creditors who signed the deed ss. in the pound. All I paid was about £350. I have received 2s. 6d. in the pound out of the estate. lam out of pocket about £180, for which I expect to get the mortgage of £1,500. _ I do not remember when I first made the claim upon defendant. I don't remember defendant, after the execution of the deed, ask me who inserted the £1,500. I never told him it was my clerk inserted the figures. r J he figures were placed in the deed on the occasion of defendant signing it, to the best of my belief. I will not swear positively that it was so. I did tell Mr. Beveridge that, if I could secure the consent of all the creditors to take ss. in the pound, Captain Battray would give or secure £1,000 to enable me to do so. This was an additional £1,000 promised by Mr. Hill, solicitor. I stated so to Mr. Beveridge. I had a conversation with defendant about giving up the mortgage previous to the preparation of the deed. I had no means of ascertaining to a certainty what the estate would pay. I looked over the estate to guide myself, and concluded to offer ss. in the pound upon defendant handing over the mortgage, which I then thought would be sufficient for that purpose. I expected to get the mortgage and »everal other things as a clear profit on the transaction. I certainly did not expect to get the amount of the mortgage, if I merely bought up a few of the debts. There was no understanding as to the number of creditors I should have to buy up if I got the mortgage. It was neres discussed at all what was to be bought up. I asked defendant to give up the mortgage, but lam not sure whether it was before we asked him to pay up the actual amount I had paid upon the deed. I did not ask him to give up the mortgage prior to his signing the deed. I explained the object of the deed to defendant, before he signed it. He understood it as well as I did. lam not aware that he had not the deed in his possession before he signed it. I had only read the latter part of it before he signed it. The terms are contained in the latter part of it. I do not know how long I had it in my possession before he signed it. Most assuredly I explained to him the terms of the deed before he signed it. I cannot remember whore I explained it to him, as he was continually coming into the office. I was glad to get rid of him. By Mr. Wynn : Defendant -had possession of the deed some time after he signed it. I saw him often afterwards. Defendant never complained that the deed did not contain what had been explained to me. John Eigg, examined by Mr. Wynn, deposed : I am an auctioneer in Auckland, and was so in 1865. I recollect the late firm of ) Eattray and Matheson, and their failure. I 1 know the defendant. (Deed produced.) I had

this deed in my possession before. I first saw it either in Rattray and Mathesons store, or Lilewall and Rattray 's. It was given to me to get signatures of creditors. I cannot say whether it was defendant or John Rattray who gave it to me. Defendant's signature was to it when I first saw it. I took the deed to get signatures. When I was obtaining signatures I saw defendant several times. He said he would give £L,OOO rather than his son should go into Court. I went to Mr. Hill about the £1,000 with defendant's instructions. I had been with him previously. Mr. Rattray said he would give £1,000 if the creditors would agree to take ss. in the pound I afterwards obtained some of the signatures" I informed defendant of the progress I was making in obtaining signatures from time to time. Cross-examined by Mr Gillies : I have heard of another deed being in existence. I have never had it in my hand. Defendant was anxious that his son should get a settlement of this transaction rather than go through the Court. I understood that it was with that object I was getting the deed signed. I cannot say how long after the oxecution of the deed it was when I got it. My communications with defendant did not extend over more than about eight days. The first signature I obtained was David Graham and Co., the fifth after Mr. Rattray 's name. I can swear defendant's name was to the deed, but cannot swear whether the amount was or not. To Mr. Wynn : I gave the deed back to either Mr. John Hattray or defendant. The next witness to be examined was E. J. Anderton, solicitor, but it was agreed by counsel on both sides that the evidence furnished by a shorthand writer (Mr. William Mitchell) of the evidence given on last occasion should be read, without again examining the witness. The .Registrar read the evidence supplied, which showed that Mr. Anderton was official assignee in the estate of Rattray and Matheson, and was then acting as such, the estate not having been wound up. He caused various properties to be sold, including a leasehold, which realised, over and above the mortgage money, a sum of £625 13s. 4d. There was a separate deed respecting leasehold property received from John Kat',ray by Mr. Anderfcon, who was assignee of the private as well as the joint estate. The Registrar then read the evidence of Mr. Thomas JRussell, supplied at last trial by the same shorthand writer. His Honor here said that counsel were taking a wise course. He had had often to compare the reports given in the papers with his own notes of the evidence, and always found them to be remarkably correct. William Rattray, examined by Mr. Wynn : lam the defendant in this action. lam the father of John Rattray, late of the firm of Rattray and Matheson. He was in the province of Wellington when I last heard from him. I recollect the circumstance of his insolvency about June or July, 1864, a short time before it became matter of public notoriety. I believed the firm to be perfectly solvent until Mr. Beveridge told me of the state of their affairs. The first step taken, I think, was to call the creditors together. The creditors held a meeting. I believe, at that meeting trustees were appointed to investigate the condition of the estate, and to allow Rattray and Matheson to go on until they could liquidate the claims against them. It was stated at that meeting that there would be a deficiency according to the statement of asset?. I did not offer to give 20s. in the pound, and get Mr. Edmonds and another gentleman to make that offer. There was a proposition to that effect made prior to the meeting of creditors. I had an interview with Mr. Edmonds and Mr. Cochrane at my dwelling-house. It was agreed to guarantee 20a. in the pound, if the books were found correct and what they were represented, provided time were given. From what Mr. Cochrane stated, I believed the firm to be solvent. That proposal fell through. I did not make an examination of the books and the assets. There was evidence arising as to further liabilities which I knew nothing about. I think the meeting of creditors was held at the latter end of July, or beginning of August. (Deed produced.) This deed is dated 16th August, 1864 The deed bears the date of the meeting referred to. The deed bears my signature. I did not then know what Rattray aud Matheson owed me. They had money from me amounting to nearly £3,000. John Rattray was due to me, as a private debt, £1,600 of that amount, including the £1,500 on the mortgage. There were bills given by me for £1,200, and a cheque for £300. The bills were made out in favour of Rattray and Matheson. (Bill produced.) This is not one of the bills given by me. (Another bill produced.) This bill bears my signature, and is in favour of Kattray and Matheson. The endorsement is, I believe, in my son's handwriting. This is part of the money due on the private account. This is the way I advanced the money. My son told me he could not have Matheson in the mortgage, because he was absent. He represented it as his own asset. I did not understand that the money advanced was for the estate. I saw Matheson afterwards, and he never Baid anything to me on the subject. I had no conversation with him about it. I signed the promissory notes which were filled in in favour of Rattray and Matheson. I did not consider it made any difference in whose favour the notes were drawn, provided they were taken for the mortgage. Mr. Matheson is my son-in-law. I don't remember giving Mr. Rigg any instructions about the deed. _ I never employed Mr. Rigg- I did not tell him to go to Mr. Hill. Mr. Hill was not my solioitor, and there were no business matters between us. gl never consulted Mr. Hill or retained him about these transactions. Mr. Rigg came and told me Mr. Hill wanted me. I went te him, and merely conferred with him as a friend. This was before I had signed the deed. I told him I would give £1,000 if the case # was kept out of Court, upon certain conditions. I believe the case was not then in Court. I cannot remember the date I had the conversation with him. I had a conversation with Mr. Machattie with regard to the payment of ss. in the pound on the estate. Mr. Machattie called me into the office and asked me, in the event of his giving ss. in the pound to the creditors, what I would give. I said I would guarantee him against any loss to the extent of £1,000. Mr. J. S. Macfarlane was present. I will not swear positively he was present. That conversation led to the preparation of the deed. I employed Mr. Jackson ,to defend me against any action of the creditors as to the mortgage. The instructions to Mr. Jackson were given a considerable time previous to the execution of the deed. The deed of mortgage was wrongly drawn out. Mr. Owen, who had an interest in it, told me so. I was not sure whether the mortgage was valid, and I didn't know how it might affect the creditors. I signed the deed of arrangement without reading it, or it being explained to me. I understood it to be a bona fide agreement, according to my arrangement with Mr. Machattie. The £1,500 was not put opposite my name with my knowledge or consent at any time. I signed the deed as the creditor of Rattray and Matheson. The name was only required, and I did not put the amount opposite it. I don't remember seeing any seals to the deed. In composition deeds it is usual to put the amounts opposite the signatures, but I did not understand this to be a deed of that kind. I understood the effect of the deed was to pay myself and other creditors who executed the deed ss. in the pound. I did not observe the amount opposite Mr. Petschler's name. When I signed the deed Rattray and Matheson were due me £1,300 in addition to the £1,500 mortgage. I gave a cheque for £1,150, and another for £62 10s. to purchase flour. It was a joint transaction with them and myself. The £62 10s. was the fourth part of the £250 Mr. Matheson was to take with him. The bill produced bears my lignature, and ii endowed "by

Mr. Howard. It is for the same amount, and has to do with this transaction. I took up the bill. I did not meet tho bill out of my own funds. Cross-examined by Mr. Gillies : The bill for £1,150 was subsequently endorsed over to Mr. William Taylor by Mr. 'Howard. I became ' liable to Mr. Taylor for it. Mr. Taylor had a share of the property this money was sent to buy, and Ipaid the remainder. I paid upwards of £800. When I signed the deed Eattray and Matheson wore due £1,300, exclusive of the mortgage. Subsequently it was reduced to £800. I told Mr. Machattie L would guarantee him against any loss to the extent of £1,000, provided the case was taken out of Court. That condition was expressly stated. He stated that if a certain number of creditors could sign their names to a deed, the estate \ could be got out of Court. I then consented. He asked me if I would allow tho mortgage to go into the estate. I said, " JSTo ;it was a separate matter altogether." I refused to sell the mortgage to Mr. Thomas Eussell and Mr. J. B. Eussell. I never offered the mortgage to Mr. Machattie. The first time I knew that the £1,500 was inserted in the deed was in June, 1865. I was then in Mr. Edmonds's store. Mr. Edmonds and Mr. Machattie were present. Mr. Machattie presented this deed to me. I looked at my signature, and I saw the £1,500 inserted for the first time. I then said, " Who put these figures here?" Mr. Machattie said, "It was my clerk." I said, "Who authorised your clerk to put them there ?" He said, " I did," most emphatically. I then walked out. Mr. Edmonds wa3 in the store, but I don't know whether he heard what passed. I understood I was advancing the £1,500 to erect a building, which was to be returned to me by John Eattray when the building was completed. I did not hold Eattray and Matheson liable for it. I never understood that Matheson was to be liable for the repayment of any part of that money. There was no further conversation about the deed, except what I stated took place in Mr. Edmonds's store, before it was signed. To Mr. Wynn : There were not two draft leases of the premises that I am aware of. Mr. Edmonds did not say what he wanted when he called me into the store. Samuel John Edmonds, examined by Mr. Wynn, deposed : I am a merchant, and one of the plaintiffs in this action. I recollect the insolvency of Eattray and Matheson. It took place in 1864. A good deal of discussion took place about winding-up the estate. I was at the meeting at Mr. Eattray 's house between him and Mr. Cochrane. There was a conversation between us three relative to attempting to pay 20s. in the pound. It was based upon the statement given to vi then by Mr. John Eattray as to the state of the estate. The defendant scare Jy credited the statement produced. The consequence was, that we met again, when Mr. B. Gilmore was present. The whole data were then given to us. Mr. Gilmore was clerk to Eattray and Matheson. The arrangement fell through. This deed was subsequently prepared. I conversed with Mr. Eattray about the nature of the deed before it was prepared. He said he would give up everything Eattray andMatheson owed him. He said he would give £1,000, also the mortgage, to have the arrangement carried out— that is, the £1,500 due on the mortgage. I based my calculation! upon that, and calculated that it would pay about 2s. 6d. in the pound. The deed was signed, and the arrangement was completed. I cannot say positively that I gave instructions for the preparation of the deed. I recollect inviting Mr. Eattray into the store, in connection with the estate, to prevent litigation. I think Mr. Machattie had the deed in the store at the time. He refused to entertain anything I said to him. I felt indignant, and walked out. Messrs. Petschler and Howard were paid ss. in the pound. I had no interest in their debt beyond paying the ss. composition. Cross-examined by Mr. Gillies : I executed the deed as far as I was permitted to do. I have never signed the deed. I only paid composition to the two persons mentioned. Defendant agreed to give £1,000 and the mortgage that the creditors might receive ss. in the pound, to get the estate out of Court. It was virtually out of Court, because we went round and got the requisite number to sign the deed. Only two creditors refused to sign it. Benjamin Gilmore, examined by Mr. Wynn, deposed : I was clerk and accountant in the late firm of Eattray and Matheson. I recollect their failure in 1864. I recollect the circumstance of this deed being executed. I firgt saw it in Cochranes stores. I took it to Newmarket, to obtain some signatures to it. I obtained Mr. George Howard's signature. The deed then lay at Mr. Cochranes for about a day. I met defendant and his son shortly after I came in from Newmarket, and told them about Mr. Howard's signature. I recollect the advances being made on the mortgage. This bill was passed through the books by me. The writing is Mr. John Eattray 's in the body of the bill. The other bills were dealt with in the same way. George Howard, examined by Mr. Wynn, deposed: I live at West Tamaki. I know of a speculation with Eattray and Matheson. Defendant wai concerned in that speculation, I believe to the extent of one-fourth. There were four of us in the transaction. Mr. Taylor was one of them. There w&s another bill given for this bill by William Eattray, I think. I don't know how the bill was liquidated ; but it was ultimately paid. This closed the plaintiff's case. Mr. Gillies addressed the jury for the defence. Before doing so, he raised a point, to be afterwards argued, to show why he should not ask for a nonsuit, or show there was no ground for the action, namely, that the plaintiffs had not themselves executed the deed, and were not liable, while the defendant had .executed it, so that it exhibited a want of mutuality. A.ndrew Beveridge, examined by Mr. Gillies, deposed : I first saw the deed on the day it was alleged to have been signed with Mr. Machattie, near his store, in Queen-street. The signatures of Lilewall and Eattray and William EaUray were to it. The figures £1,500 were not opposite defendant's signature. There were no figures opposite the names mentioned. Mr. Machattie told me he had made an arrangement whereby he was to pay the creditors ss. in the pound upon their respective debts, and that he was to receive £1,000 from defendant to enable him to do so. This closed the defendant's case. The Court rose at 5 o'clock until 10 o'clock this (Thursday) morning.

A Lawxeb's Fee. — A capital story is told of a convivial lawyer, who lived in the last century. He was accustomed to drink hard over night, so that when he appeared in Court in the morning he was not able to make a very brilliant display, and, although a man of undoubted ability, very often lost cases from his over-night excesses. He was counsel in a most important case, but on the morning of the trial it became evident to the attorney that little good would got ont of him. He leant back in despair, when a sudden thought struck him, and he hastened out of Court into the street, where he entered several shops, changing sixpences into pennies, and pennies into farthings. When he got between twenty and thirty of the latter he put them into bits of paper, entered the court just as the advocate rose to speak, and put two into his hand. The fingers closed over them, placed them in the waistcoat pocket, and, a change became observable to all in his full and very clear explanation of the case. Whenever he showed any symptoms of breaking down, the agent was ready with another refresher. He won the case. Thereafter, going to a tavern with one or two friends, he ordered refreshments, and threw down in payment one of the farthings still wrapped in paper, telling the waiter to keep the change for himself. The astonishment of the waiter on opening the paper was only equalled by that of the advocate, who, instead of finding himself in possession of a store of guineas, had only farthing*.