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THE COURTS.—TO-DAY., Issue 7967, 24 July 1889
(Before His Honor Mr Justice Williams.)
Re John Maitland Jones and Farquharson Proctok, bankrupts.— Summons for Official Assignee to pay L 250 to Robert Wilson and others.
Sir R. Stout appeared in support of the Bummona; Mr Solomon for the Official Assignee. Sir R. Stout said that the summons called on the Official Assignee and the abovenamed bankrupts to appear before the Court and show cause why he should not be ordered to pay forthwith to Robert Wilson, Thomas Shepherd Culling, and Thomas Bennett the sum of L 250 paid to the Assignee by the bankrupts in connection with a contract made by the Assignee with the said bankrupts, and also to show cause why the Assignee should not pay the costs of this application, on the ground that the said sum is the property of the said Wilson, Culling, and Bennett, and is improperly retained by the Assignee. The facta were that when Proctors, Jones, and Co. became insolvent there were practically three estates—their joint estate and their two separate estates—and also three sets of creditors. At a private meeting of their creditors before their insolvency there was some talk about their purchasing the estate; but, as there were some foreign creditors who might not consent, there waa nothing to be done but to administer the estate under the Bankruptcy Act, and bankrupts accordingly filed. A meeting of their creditors waß held on June 20, at which the bankrupts offered L 5.750 for oil the available assets in the three estates—all the assets not held by the Colonial Bank and the other secured creditors. The sum of L 250 was to be paid in cash, and the balance by bills at two, four, six, and eight months. Another meeting was held on June 24, and prior to that the bankrupts) wrote that they had been able to get cash for the whole amount at a rebate of 8 per cent. At the meeting a motion for the acceptance of the offer was lost, but afterwards it was resolved that an offer of L 6.000 cash would be accepted, and the supervisors were authorised to accept that, with the proviso that Mrs Jones should not prove. The bankrupts asked if a bill for L 250 would be taken to make np the L 6.000, as they could not get more than L 5,750 cash ; but this was not accepted, and bankrupts then got some friends to lend them L 250. They then amended their offer to L(5,000 cash, and the Assignee wrote that the offer of L 6.000 cash would be accepted, subject to confirmation by the creditors ; the bankrupts meantime to deposit a marked cheque for L 250. On the 27th a meeting of creditors was held, at which the action of the Assignee was confirmed and the cheque was duly deposited. But on the 29th the Assignee wrote to the bankrupts that he accepted their offer for the "declared" assets of the estate. That was, counsel submitted, a variation of the offer that had been made—or, rather, it was an offer that had never been made. It made a new bargain, and therefore no contract ever subsisted between the parties. The Commercial Property and Finance Company were going to finance for the bankrupts, and the company's solicitors would state in evidence that what was demanded was all the assets, and not the declared assets alone, The outcome of the matter was that the company declined to be humbugged any longer and withdrew altogether, so that the bankrupts were unable to carry out the contract. After the negotiations were broken off the Assignee wrote to the bankrupts that he regarded the assets that had been sold as the assets that had been disclosed. Counsel submitted that the Assignee had no title to sell, Jand that being so, a purchaser had a right to withdraw; and even assuming that there had been a valid bargain in writing, the Assignee had no power to retain the money in question. His Honor: Why has the deposit been retained f
Sir R. Stout: To frighten the bankrupts, so aa to get Mrs Jones to give up her rights. Mr Solomon: Not at all. Sir R. Stout said that it was a most dishonest transaction, although they had the Assignee preaching morality to bankrupts. The depositor L 250 could not belong to the estate ; it belonged to the bankrupts, and could only go into the estate in one eventin the case of the bankrupts entering into a contract which they refused to fulfil. There might, perhaps, in such a case be a right for the Assignee to forfeit the bankrupts' deposit ; but it was got for a special purpose. The bankrupts, counsel might say, consented to the order now asked for being made, and that the money should be restored to Wilson and Bennett. John F. Woodhouse, of the firm of Macassey, Kettle, and Woodhouse, solicitors, Btated that his firm acted for the Commercial Property and Finance Company, which had agreed to purchase bankrupts' estate on certain conditions being carried out. The draft deed of assignment of the estate now produced was prepared by his firm and sent to the Assignee, who returned it with some alterations written in it in red ink. By Mr Solomon: Witness found that these were not in accordance with the arraDßoinents that had been made and would not accept it, but the Assignee called next day, accompanied by Jones, and told him that he had no objection to the deed as already drafted. The point that witness looked at was whether the purchasers should get all the assets, or only those that had been disclosed, and this being provided for, witness told Jones that the thing was settled all right. Subsequently, however, the Assignee telephoned to witness that he had
since seen Mr Haggitt and the Colonial Bank people, and that the former did not approve of the draft deed, and wanted a schedule of what was to be sold. Witness saw the Assignee, and told him that if there was any further hitch or delay it was possible the affair would fall through. The Assignee said he would not sign the deed in that form, and asked him for the draft. Witness gave him the draft, and it was sent back with alterations in pencil in Mr Haggitt's writing. Witness did not submit the deed again tt his clients, thethingbeing"off" thenceforth. To Mr Solomon : The only point in dispute was as to whether the whole of the assets were to be sold, or only such as had been disclosed. Charles Cargill Kettle, another member of the firm, also gave evidence as to conversations with the Assignee with respect to the deed. John Maitland Jones stated that he was always willing to carry out tho deed but for the alteration that was made in tho deed. To Mr Solomon : Witness got L2OO of the L 250 from Bennett and LSO from Wilson Witness told them that he wanted the money to "spring" the firm's offer for the estate. Witness did not tell the Assignee that he got the L 250 from five different people; it had been his intention in the first place to get it from five different people. Witness got bills from Wilson for the L 250, it having been arranged that they should be discounted by Mr George Esther. They were drawn by Esther, and accepted by R. Wilson and Co. and Bennett. Esther gave witness a cheque for L 250, and he took it to the meeting of creditors, where he handed it to Mr Paul, the Assignee's accountant. Re-examined : If the affair went off Wilson and Bennett were to get their L 250 back. They knew what the money was for, that it was in connection with an offer for all the assets; not simply for the declared assets.
Mr Solomon, in opening the case for the Assignee, submitted that the Court had no power to make the order asked for. The deposit was the property of Wilßon and Bennett, and the moment they lent it to Jones it ceased to be theirs and was owned by Jones, or rather by the Assignee, Jones being bankrupt. His Honor asked if the facts that Mr Solomon would adduce were different from those on the other side.
Mr Solomon said that they might not be different, but the conclusions would be different.
His Honor said that if the facts were as had been shown the Court had power to hand over the deposit to the bankrupts. The Assignee must have known that the deposit was borrowed from Bomeone, and that he could not claim it as part of the estate. Mr Solomon: We do not claim that we have such a right. Sir R. Stout: Then why don't you give it ud ?
Mr Solomon: We have not been asked to. Sir R. Stout said that that was not afact, and read copies of letters sent to the Assignee on behalf of the bankrupts demanding the return of the deposit. His Honor said it was evident that the Assignee had been asked for the return of the deposit, and bad refused to_ give it up. Mr Solomon submitted that in that case the bankrupts should have applied to the Court. Why were Wilson and Bennett put in as plaintiffs ? Commenting on Sir Robert's accusations that the transaction was a dishonest one, counsel said that, if there was anything dishonest about it, it was on the bankrupts' part. The Assignee and the supervisors were always ready to carry out the contract if a proper construction were put on the contract as at first entered into, and counsel would submit that the Assignee's was the correct construction, and that if the contract was not carried out he was not bound to return the deposit. Evidence was given by James Ashcroft, the Official Assignee, who stated that he had never objected to carry out the sale of the estate on the terms contained in his letter, and by G. L. Denniston, one of the supervisors of the estate. After argument by counsel His Honor granted the order in the terms of the summons, with costs (L 668), disbursements, and witnesses' expenses.
RESIDENT MAGISTRATE'S COURT.
(Before E. H. Carew, Esq., R.M.) W. G. Neill v. W. J. Roberts.—Claim, L 43 8s 9d, on a dishonored uheque.—Judgment by default. Herbert, Hayues v. P. Kane (Merton).— Claim, L2B 2s 3d, on a judgment summons. Mr Fraser appeared for plaintiffs, Mr James for defendant. —Mr James said that defendant had met with a serious accident and was unable to attend.—Mr Fraser replied that the accident occurred some time ago, and that defendant was now about again.— His Worship asked whether Mr James could say anything as to defendant's present condition.—Mr James replied in the negative; he had had no recent instrnctionß.—His Worship thought that no sufficient excuse for non-appearance had been offered.—Mr James pointed out that Mr Fraser had given no evidence as means.— His Worship said that that was not necessary. Mr Fraser was entitled to ask for an order simply on the ground of nonappearance. —Mr Fraser said that defendant was a farmer with land and stock and necessary appliances for working the farm. If there was a bill of sale over the place, and defendant could not pay his debts, the sooner he was wound up and compelled to file the better. It was a curse to the trading community that men, believed to be good marks, should Ret credit everywhere, and when asked for payment produce a bill of sale so that no one could get anything. Such persons should be wound up at once. His Worship made an order for payment of the debt, with costs, by the Ist August, in dofault five weeks' imprisonment. J. Brown v. B. C. Calverley.—Claim, L 5 6s, for goods supplied. Mr D. D. Macdonald for plaintiff.—Defendant paid LI 5s into Court, and desired to prove a set-off for L 4 Is for medicine supplied, but it transpired that notice as to the set-off had not been served twenty-four hours before the sitting of the Court, and judgment was given for plaintiff with coßts.
CITY POLICE COURT.
(Before Messrß J. Elmer and D. Wishart, J.P.8.) Drunkenness.—Two first offenders were, for this offence, convicted and discharged. Thomas Robinson, one previous conviction, who had not appeared since 1884, was convicted and discharged. A Foul Chimnby.— Otorgt Hereus was, for this offence, fined 2s 6d with costs. A Bad Chabacteb.— Henry Harding, a colored man, with ten previous convictions recorded against him, was charged with having insufficient means of support. — Accused pleaded not guilty, and said he had engaged a lawyer to defend him.— Mr Elmer: Well, he shou'd have been j here. Go on with the case.—Sergeant-1 major Bevin said that accused continually kept brothels, and was in the habit of going to the gaol and meeting females who had been discharged from there. Even young girls of tender years were molested and taken or enticed to accused's den. He was the worst character in Dunedin, and was kept by a woman of bad repute, whom he tried to make worse than she reallyj was. Sergeant Gearin said accused had kept brothels in various parts of the City, and had no occupation, but simply wandered around with a bag over his arm, pretending to gather bottles. He frequented public-bouses wherein women of the town and drunkards of the lowest type congregated, From complaints made by neighbors, witness and others visited accused's honse in Stafford Btreet on the night of the 19th inst., and found two prostitutes, accused, and another colored man, all more or less intoxicated and causing a disturbance. Complaints were continually being made by residents whose premises adjoined accused's house, and the police were compelled to bring the matter before the Justices.—Sergeant-major Bevin: Have you been made acquainted with the fact that accused is in the habit of waiting at the gaol when females are about to be discharged, and that he entices them to his dwelling?— Sergeant Gearin: Yes; I believe that he does wait at the gaol and endeavor to get hold of the women who are being discharged. Should a woman sometimes resolve to lead a better life, she inevitably
falls back to her old life under his evil influence. While witness was being questioned by accused, Mr Macdonald came into Court and cross-examined Sergeant Gearin, who said that he would not swear positively that accused did no work. Ha had never Been accused work, at any rate.—Mr Macdonald : If all the persons whom Sergeant Gearin does not see work are to be arraigned for vagrancy, it will be a nice state of things.—Constable Matheson corroborated the evidence of Sergeant Gearin, and stated that he had seen accused enticing half-drunken men and women to his den. To Mr Macdonald : Witness did not hear any conversation, but from the attending circumstances he came to that conclusion.—The Bench, after a short retirement, sentenced accused to three months' imprisonment with hard labor.
The accounts of the Glasgow Exhibition have just been issued. They show that the total income amounted to 1.225,000, the profits being placed at L 41.000. At Morpeth Mr George Sanger, the wellknown circus proprietor, was attacked by a bull which he waß feeding, and thrown into ihe air several times, and so seriously injured that he lies in a dangerous state. He : •' Of courso you know 'The Heir of Redclyffe ?" She : " I'm not sure. Would you just mind humming it ? "
THE COURTS.—TO-DAY., Issue 7967, 24 July 1889
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