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A QUEER BANKRUPTCY, Issue 8034, 10 October 1889
A QUEER BANKRUPTCY
At Lawrenc 6 yesterday, in the matter of Ferguson, t ’ following evidence was given : James Ashcroft said that bankrupt’s books were very poor ones. Only four or five small memorandum books hacl been found, and the accounts were all badly kept. There was no entry in the books showing his indebtedness, and he bad no cash book. VMtness was satisfied that it was a week or ten days before bankrupt filed that ho spoke to him in Dunedin, saying he wanted to keep the hotel, as he thought it would be valuable, ond he wanted to know if he (the Assignee) would carry it on if he filed. Witness said he could not undertake to do
Sir Robert Stout; Are these charges against bankrupt made by you or by a party of creditors ? . , . t1 , Witness; I have nothing to do with drawing up the charges; that is done by a lawyer, and I sign the document. Why is it y° u ave stacked Ferguson for having paid Arbuckle and Robertion, Herbert, M'Kieoh, and Robertson, and other creditors, as well as Browne Bros, and Gawn?—Because these two embraced features comparable to all the others, and if they were recovered, the others, being smaller amounts, could be easily dealt with. These were only test cases. But why did you, in your charge, refer only to two cases of fraudulent preference and not to others ?-I left it entirely to the solicitor. As a matter of fact, Mr Fraser, who is not my solicitor, was appointed by the creditors to make and carry out these charges; and as I considered he was responsible to the creditoro I on'y did the routine Gan you name the creditors for w}iom Mr Fraser appears ?—I understood that it was for the whole of the Lawrence creditors. Do I understand yon to say that you knew of these other charges of fraudulent preference?—! knew there were charges of fraudulent preference. And the only names attached by you arc Gawn and Browne Bros. ?—That was in the first instance. They are only test cases. Is it a fact that at the meeting of creditors you said that, while you would allow Arbuckle and others who you thought had been shown fraudulent preference to vote, you would not allow Gawn to vote on the question of proceedings being taken against bankrupt?—At that time I only knew of Gawn and Browne being attached. There was in the smaller ones a certain amount of doubt. Ho that you considered it your duty to stop Gawn, but not stop the others?-1 objected to Gawn outvoting the other creditors.
Why did you allow the others to vote ? Because they were on the other side.— (Laughter.) Ob, I see. As long as they voted with you it was all right, but when they voted against you you stopped them.—Yes. (Laughter.) And it was perfectly reasonable,—(Renewed laughter.) That is frank.—lf you will allow me to explain I would say that my only objection to Gawn voting was that I did not consider It fair that one person, whose claim was liable to be assailed, should bo allowed to vote against that step being taken if it was fie mind of the general body of creditors. Thos. Pilling, journalist, Lawrence, said he was a creditor in the estate. He remembered speaking to bankrupt in October, 1888, on the occasion of bankrupt advertising in the ‘ Tuapeka Times’a horse called the Marquis of Salisbury. In reply to witness he said he had gone in for the horse, and had paid 220 guineas for him. He ordered the advertisement, and his name appeared as proprietor. Before he left the office witness’s brother came in, and bankrupt repeated to him what he had already said to •witness. The advertising account was L 3 ss. To Sir Robert Stout: Witness had not taken any active part in the proceedings against the bankrupt, but if nothing came out of the estate lie was willing to pay his share of the expenses. He was one of those who had clubbed together to buy the estate. He knew that Chalmers was another, and Walker another, but his other partners he did not know. He relied on bankrupt when he was putting in the advertisement as a man in a good position, especially as he had bought a horse at such a handsome figure. He charged the amount to bankrupt’s account. John Matthews, coachbuilder, said he also was a creditor in the estate, On the 3rd November last he to bankrupt about the money he owed witness, and it was during the same conversation he said he would not give anyone a bill of sale over anything he had. Witness asked him if no one had any claim on his property, and he said no : and that Gawn had no bill of sale over his property. Witness and his partner (Chalmers) then renewed a bill for bankrupt. William Chalmers, partner of the last witness, corroborated what Mr Matthews had said, and he was not cross examined. George Walker, hay and corn dealer, stated that he had supplied bankrupt with goods the beginning of this year. Witness epoke t about his account, which he sai c he would reduce as socn as possible ; and also about an entire horse, which bankrupt said belonged to him, adding that he had paid LIOO deposit on it. He also said that witness was his largest creditor in Lawrence, and that be owed very little to anyone. He also said that at the end of the wool season he would sell his teams and go in for another business. Witness had had other conversations with him, in one of which he said he had paid Gawn the balance of the price of the horse (120 guineas), To Sir R. Stout: After the beginning of the year witness gave bankrupt more credit than formerly. Sir Robert Stout produced receipts to show that witness had not done this, and that he requested payment at once for all goods sold. Witness said he was one of the syndicate that purchased the property, and he took that step in his own interest. Witness went on to say that the Clifton property was sold by public auction and fetched L2 sa, but afterwards qualified this statement by saying that as far as his memory served him, he beliased it was sold by public auction, Mr Fraser intimated that he did not propose to call further evidence. Sir Robert Stout said he was not going to call any witnesses. His Honor ; Do you base anything on the examination, Mr Fraser ? Mr Fraser: I propose applying to your Honor to commit the debtor on several grounds. The first ground of which he received notice Is that he has not kept proper books of accounts, I do not propose to lay any great stress on that. His Honor; No; carters do not generally pay much attention to their books. Sir R. Stout: He cannot write, and it is all he can do to sign his name. Mr Fraser continued that on this ground they could not lay much stress, because probably nine out of ten carriers could not keep books. Then the charge of obtaining credit from Mr Pilling, he submitted, was sustainable, for there was the obvious mis-
statement of fact by bankrupt that be was owner of the horse, and the question was how far he had obtained credit on these representations. His Honor pointed out that in crossexamination Mr Pilling stated that he would have given credit to debtor. The difficulty was that the amount was so small. If it had been a question of LSO or L6O Mr Pilling might not have given credit. ( Mr Fraser said ho next came to Walker s case. So far as false pretences were concerned it was, he submitted, abundantly plain from that witness’s testimony that a false statement —false within the knowledge of the debtor, and circumstantially told—was made to Walker, and by means of that representation Walker gave credit, and was now a creditor to a considerable amount. His Honor had heard the evidence of bankrupt himself when he said that Gawu had handed over the horse to him to do what he liked with. That was one statement; and the other, and the far more natural and more likely one, was that he had bought it. His Honor would see what the effect would be of a man going about holding himself up as the owner of a valuable horse. His Honor ; Owing to the peculiarity of the law I cannot take into consideration the denial by the debtor that he had paid anything on the horse. I must exclude the debtor’s evidence altogether in the case, and then there is nothing against the statement lie made to Walker. You say he obtained credit ou the strength of stating that this horse was his, and that he had paid LIOO on deposit. Taking it at that, as most favorable to your view, you have to show that the horse did not belong to him. He states himself that he did not own the horse. Mr Fraser said he might yet call witnesses to speak on the point. Sir R. Stout said Mr Fraser certainly could not do that in a criminal case. He had closed his case now.
Mr Fraser said he might call further evidence with the permission of the Court. Sir R. Stout said that such a thing was never done. His friend was now wanting to depart from the specific charges that had been made, and he would strongly object to him going on in that way. Mr Fraser said he would not press the matter. There were two other charges against bankrupt, but as they were affected by another case in which bankrupt was concerned, he would leave them till it was settled. His Honor thought this was the best course for Mr Fraser to follow, and the examination would therefore be simply adjourned till the other cases were disposed of.
A QUEER BANKRUPTCY, Issue 8034, 10 October 1889
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