THE COURTS-YESTERDAY.

Evening Star, Issue 8483, 7 April 1891, Page 2

THE COURTS-YESTERDAY.

SUPREME COURT-IN BANKRUPTCY, (Befors fiia Honor Mr JusUoe Williatos.) * BE HENBY

Motion for xiis^hki^e. The Assignee said that he proposed to call Mr Sinolair as to evidence given • in the Assignee's office, to Bhow that then were misrepresentations in regard to the shares. Sir R. Stout objected. The Assignee had power to examine a debtor, and to take his examination in writing, and if he deolined to answer there was power to bring him before the Court. An examination was held, the evidence w*e taken down in writing, the public examination was held, and now the Assignee proposed to call witnesses to say something which he said was not taken down in writing. He (Sir R. Stout) submitted that this was something the Act never contemplated, and entirely wrong. His Honor doubted Whether the evidence should be given, tarn said it would oertainly be better tn'at if any evidence was taken in writing it should be produced instead. The Assignee said that he had some notes of the evidence, whtoh he read. The point was as to oertain pencil marks in the. books, and as to instructions given to Horder as to the evidence he Was to give. George Horder said that he was clerk to Benjamin. Remembered attending at the Assignee's office with the books When Benjamin was Under examination. Was aßked when ft pencil entry " Mrs Benjamin and Mrs Jacobs, 18th Maroh, 1888," was made in the ledger. Sir R. Stout objected. . . , His Honor said that the Assignee could ask witness to state the circumstances under which the entries were made. Witness, continuing, said he believed that the pencil marks were made after the bankruptcy. Witness was instructed so to do by Benjamin, who told witness to say that those marks were put in on the date they bore. That was said after Benjamin was examined and before witness was up for examination.

To Sir R. Stout: The conversation took place very Bhortly after Benjamin's examination. Witness made up the trial balances which showed the firm to be solvent, with a large surplus, down to the date of filing, if all the book debts were good.

To Mr Chapman: When witness was carrying on business for the Assignee, Benjamin made certain marks in the cash book, some in pencil and some in ink. Witness did not then see the matter of making these additions in so serious a light as he did afterwards. Benjamin said that they would make the account book more genuine. Witness would not swear to the Words, but what he said was to that effect. Witnesß Waß standing by when he made therti, The additions were of the words •'Mrsß." and "Mrs J." Benjamin said that by putting Borne of these additions in pencil and Borne in ink it would look less formal and more careless, or wordß to that effect. The Assignee said that he also wished to ask witness questions about the jewellery. Witness said that Bome of the jewellery which was given to the Assignee was held as security, and was given to Jacobs when the landlord threatened to distrain for rent. Witness knew that the Assignee was unaware of the existence of this jewellery. To Sir R. Stout: This jewellery was entered in the books. The ink marks were made in the book before the pencil marks. They were put in for the purpose, Benjamin said, of more fully bearing out his statement that the shares belonged to the ladies. A. J. Park, supervisor in the estate, said that on going through the ledger he found that there had been advances made against jewellery and a bill of sale. Could not find the security in the office, and found out from Horder that Benjamin had it. Next morning Benjamin brought it to witness and Baid that he had lost sight of it—that it had been in his house.

To Sir R. Stout: It was part of Collins's jewellery. Benjamin said that he would get the remainder of the jewellery from Jacobs. The Assignee said his point was that the jewellery was not properly discovered to him, but was left to be found out by a search through the books. Sir R. Stout baid that the jewellery was fully described in the books. Mr Chapman remarked that when the matter was previously before the Court, Bis Honor excluded evidence of conversations between Benjamin and Horder at the time the entries in the book were made. The object was evident: to make it appear that original entries were in existence bearing out the statement he had made. Sir R. Stout Baid that so far as the jewellery was concerned all the transactions were explained at the public examination on the 21tit August, and satisfactorily explained. His Honor: Do I understand that all this jewellery was security from Collinß ? Sir R. Stout Baid that they were all wrong about this matter. The jewellery in Sydney was Hyndman'B and the other jewellery was Collins's, and Horder was correct in saying, that fearing distraint for rent he took it to Jacobs. So far as that was concerned, what was put in the bankrupt's statement was the total amount of the book debts. The things held against them were never separately valued, and were never held as security for book debts. If Benjamin had wished to act the rogue, surely he could have sold the things, and where would the Assignee have been then ? As to Harrington's deposit, Benjamin was anxious that he should be paid, and wished that money coming from Home to the estate should be applied by his partner to pay it. It was explained, however, that this money had to go to the bank, and therefore Harrington could not be paid. The facts showed Benjamin's anxiety to pay. And there was not a tittle of evidence to show that Benjamin believed he was not solvent. The business was a profitable one, and would have so continued. What wrecked it was the rink affair the indemnity to Sutherland. So far as Harrington was concerned, they carried on in good faith, and had no idea that they would not be able to carry on. It was the two things mentioned that, had wrecked them. His Honor: Is that so ?

Sir R. Stout replied in the affirmative, and added that there was no evidence that the firm did not believe their balance-sheets to be correct, and no evidence that they were not correct. That disposed of Harrington's matter entirely. As to the alteration in the books, His Honor had already found that there was a sale of the shares, but a sale at an undervalue, and that being so the entries in the books only went to show that it was a sale. And Benjamin had not denied making the entries. They did not put a new complexion on the state of affairs. What Benjamin had done was foolish rather than wrong, and it was of no avail either way. He had committed no offence under the Act. What the Court had to look at was simply whether up to the time of filing he had done anything improper in the conduct of hb business; and it could not be said so in this case. The only thing Benjamin had done was to injure himself and his wife and family by becoming guarantor for Donnelly and Sutherland, and there was nothing to show that his was not a genuine case of misfortune, and that he was not entitled to his discharge. His Honor: I shall look through the papers and the evidence given in the previous case, and will give judgment next bankruptcy day. BR. THOMAS IBVINE. Motion for discharge. Mr Gallaway appeared in support of the motion. , Otder.granted.