NELSON.

Lyttelton Times, Volume XXIII, Issue 1409, 6 June 1865, Page 6

NELSON.

By the Otago we have our files to the 2nd inst. "We take the following report, from the Nelson Examiner of the 28th ult, of the proceedings in the Insolvent Debtors Court:— In Re Charles Elliott's Petition. IMPORTANT QUESTION AS TO SHEEP OX TERMS. The petition set forth " that for many years past, petitioner had carried on business in the city of Nelson as a printer, and as the proprietor and publisher of the iVefeo?» Examiner, and had also for many years past been possessed of, and in the occupation of certain runs in the province of Marlborough, and therein carried on business as a sheep farmer, ana for some time carried on the business of a butcher. " That petitioner, from losses, from the depreciation in the value of sheep and of sheep runs, and from other causes, which it was not in his power to prevent, is unable to meet his liabilities on his several occupations." The liabilities and assets, as represented by the schedules attached to thepetition amountto-Liabili-ties, £48,236 19s fid; assets, £43,717 158 9d; showing •Tappet deficit of £4,519 3s 9d. It is believed, however, that the assets-particularly the va ue of sheep-are greatlv over-estimated; and that, therefore, this last sum by no means represents the actual deficit in the estate. The following are the main particulars of the schedule filed in Court, and produced at the examination. We give this thus fully because a question of great interest to sheep farmers and others arises in connection with this estate:— Liabilities. Creditors secured— £ s - <*• N. Ed wards and Co., merchants, bills of s; V le 5,756 15 3 Executors of J. Elliott 2,600 0 0 Society for the Propagation of the Gospel, and interest 820 0 0 Mrs. Burns' Trustees and interest ... 372 0 0 Mrs. Brewster 50 ° jj jj Mrs. Robertson, Melbourne 6,400 0 0 E. Green... 5 - 400 J ° Wm. Henry Turner 2,000 ° ° 23,948 15 3 Sundry persons, names unknown, shearers, labourers, shepherds, &c. 800 0 © Creditors UnsecuredSundry persons, names unknown, sundry tradesmen 300 0 0 V. and J. Figgins, London 386 7 7 James Wrigley and Co., Manchester... 184 12 2 S. L. Muller,'Marlborough 3,535 8 0 J. W. Barnicoat, Richmond 770 0 0 J. D. Circle 880 0 0 Bursill and Howard ... 410 0 0 Georsje Duppa ° ° C. Elliott, junior 557 5 8 H. Redwood, junior, 278 0 6 C. Sewell 200 0 0 E. Green .'. 250 0 0 19 other creditor?, under £100 each, amount to •• 1.085 11 6 9,108 4 11 * Wool Rentals due in Current Year— W.L. Shepherd ... 800 0 0 J.S'aples* 167 0 0 Mrs. Mills 105 0 0 Mrs. Macshane (balance) 110 1 4 Mrs. Nicholson 203 0 0 Mrs. Harvey's Trustees 54 2 0 Wm. Cullen 205 7 O Mrs. Witherby's Trustees 108 0 0 J. Gully (balance) 39 0 0 — Kinnersly 77 0 0 C. Anderson, Otago, shepherd ... 36 0 0 Trustees of Bishop of Nelson ... 45 0 0 E. Prichard 202 10 0 2151 19 0 Sheep— J. Staples 1072, at 15s 804 0 0

Mrs. Mills 702, at 15s 527 10 0 Mrs. Nicholson 2412, at 15s 1,609 0 0 Mrs. Harvey's Trustees ... 687, at 15s 516 15 0 Wm. Cullen 805, at 15s 604 5 0 Mrs. Witherby's Trustees. .1368, at 15s 1,026 0 0 J. Gully 736, at 15s 552 0 0 — Kinnersley ... . ... 956, at 15s 717 0 0 C.Anderson ... ' ... 456, at 15s 342 0 0 Bishop of Nelson's Trustees 568, at 15s 426 0 0 E.Prichard 2550, at 15s 1,913 10 0 W.L. Shepherd 4000, at 15s 3,000 0 0 Total sheep ... 16,512 12,238 0 0 Total Liabilities... 48,236 19 6 ASSETS. £ s d Upcot run, sold to E. Green,who undertakes to satisfy Eobertson's and Turner's claims 5,650 0 0 Sheep—6soo taken by Green, at 20s each ... ... 6,500 O 9 12,150 0 0 Wool of present clip, estimated aif 200 bales at £17, secured to N. Edwards and Co., under Wool Law Act ... 3,400 0 0 Acceptance in hands of N. Edwards and Co 328 17 3 Horses—36, secured by bill of Bale to N. Edwards and Co., at £18 each 648 0 0 4,376 17 3 Freehold Properties (Mortgaged)— Springfield Estate, 850 acres, at £5 per acre, mortgaged to Mrs. Robertson and E.Green 4,250 0 0 Part of Section No. 29, Pakawau (40) acres) > 300 0 0 Section No. 11, Paknwau ... ) 40 acres of Wood, on Waitohi road, at £4 per acre 160 0 0 1\ Town acres, including garden, stables, &c. ... 2,000 0 0 20 Acres of land near Kaituna ... 20 0 0 [The last three items are mortgaged to Mrs. Burns, and second mortgage to Mrs. Robertson.] 6,730 0 0 Dwelling-house, and half-acre of land, mortgaged to Mrs. Brewster, for £500 800 0 0 Mortgaged to the Society for Propagating the Gospel, and second mortgage to J. Elliott's Executors— Printing premises 2,000 0 0 Bill of sale to J. Elliott's Executors— Plant of printing office 1,000 0 0 Stock on premises 700 0 0 £3,700 0 0 Unsecured assets — Goodwill of run in Awatere' 500 0 0 Book debts at printing office, estimated good 1,900 0 0 Book debts during the current quarter 350 0 0 Do do, butchers'shop 1,050 0 0 Acceptances '. 79 8 6 Sheep—ls,ooo, estimated at 15s each 11,250 0 0 [5000 of these sheep were included in a security to N. Edward 3 and Co., and have since been seized by them.] Furniture at dwelling-house 300 0 0 Stores, horses, implements, &c, on hand 200 0 0 15 Shares in Nelson and Marlborough Steam Company 90 0 0 Scrip of 10 shares of Cattle Fair Association ... ... 10 0 0 Accounts owing station 93 10 0 Sundry private debts 138 0 0 Total assets 43,717 15 9 Deficit ... 4,519 3 9 Liabilities as above ...48,236 19 6 Mr. Travers and Mr. Kingdon were for the petitioner, and Mr. Pitt appeared on behalf of Mr. Kinnersley, Mr. Smith, Mr. King, and Mrs. Macshane. Cross-examined by Mr. Pitt: Messrs. N, Edwards and Co. appear on the schedule as secured creditors for the sum of £5,760 15s lOd. They are secured on horaes, the wool clip for last year, and on 5000 sheep. The security consists of a bill of sale over horses f nd

sheep the wool is secured under tte provisions of the, Oil and Wool Securities Act. A t■ !^ By theTJudge: In the bill of sale the Horses are defcribedandipecifled; but thesheep are not-itis a treneral security over 5,000 of the flock. MrTravers : W have taken possession of the uKe of any value, a bill of sale Tlr last ten years have you kept regular accounts of your receipts and TetUiS ? - I could not say that I have & §?" Have you done so sufficiently to show whether you were losing or not ? Petitioner: Yes, I believe I have. The Judge: It will be for this Court to determine, when a proper representation is made to it, whether these bills of sale"that for the sheep for instance, are valid as against the claims of the other creditors. .Jhe examination was continued by Mr. ™tt. Petitioner : When I gave the last bill of sale to Messrs. Edwards and Co., I consider I was m solvent circumstances, and at that time they were not threatenmg to sue me. The wool security and the security over the sheep were given at the same time, about tW Mr. e p"tTwaß the wool security given two yean ag petitio a ner : The bill of sale for the wool was given then, but it was afterwards renewed. The Registrar : He means a second security was given; they cannot renew a bill of sale. Petitioner: Yes, a second security, just a renewal of the former one. , By Mr Pitt: The bill of sale over the horses was ffiven in November last. I called a meeting of my creditors in February last. It was subsequent to that meeting that Messrs. Edwards and Co. took possession of my sheep. They seized 5000 sheep which bore my station brand. They were not otherwise marked or branded; but Messrs. Edwards and Co. afterwards branded them. , The Judge: Unless the sheep were specially branded and so mentioned in the bill of sale, how could they be distinguished ? Mr. Travers: Your Honour will understand that of course this question will arise by and by. The Judge: It will open the question of sheep on terms; which, as it appears clear to me, means that if such sheep are not branded as the property of the person placing them on terms, in the event of the holder becoming insolvent, they must go to the creditors. . TT Mr Travers: Perfectly clear, your Honor. Mr. Pitt: Mrs. Robertson, of Melbourne, appears in your schedule as a secured creditor to the amount of £6,400. On what has she security ? Petitioner: On freehold property,and 10,000 sheep. The Judge: Was there any means of distinguishing which were Messrs. Edwards and Co's sheep and which were Mrs. Robertson's ?

Petitioner: No, your Honor. Mr. Pitt: Were not these the sheep with which you first started in business ? Petitioner: Part of them were, and there was also the increase. The security to Mrs. Robertson was granted in June, 1861. At that <ime I had over 21,000 sheep altogether. There were then various persons who had claims on me on the remaining 11,000 of the flock for sheep on terms. The Judge: You had sheep on terms ?

Petitioner : Yes. The Judge : Tell me, were these sheep distinguished by the rcark of the person to whom they belonged ? Petitioner: No. There was no distinguishing mark except my station brand. By Mr. Pitt: The security over the wool to Messrs. Edwards aud Co. was given over the whole flock. I did not get the consent to my granting such security of any person who had delivered sheep to me on terms. Mr. Pitt: Yet that consent is necessary under the Oil and Wool Securities Act. Now, about Mr. Green's claim; how was the debt to him of £5400 secured ? Petitioner : Mr. Green's security consisted of a mortgage over my whole freehold property, and there was also an agreement to deliver to him 10,000 sheep. Mr. Pitt: Tell us the particulars of Mr. Green's debt. How did it originate ? Petitioner : It originated by my agreeing to enter into partnership with him in May, last year ; he agreeing to purchase half my interest in the runs ; paying me for the sheep at 10s per head ; for the freehold, at 10s per acre. He paid me £5000 about June, by cheques on the Union Bank of Australia. He has not paid me the balance of the £13,000 which was the total amount agreed on to be paid. Mr. Travers here explained that the partnership was shortly afterwards done away with altogether, and Mr. Elliott agreed to sell the whole to Mr. Green for a much larger sum, Green taking the liabilities, debts, &c, and it was agreed to £5400 as part of the purchase money. The additional £400 represented interest. Petitioner in continuation: Mr. Green had also 6500 sheep for £6500. Mr. Pitt: Can you tell us how you disposed of this £5000 ?

Petitioner: I could not say so here; but I believe my books will show it. It was spent in payment of my debts, and went into my general expenditure. Green never made any further payment. My agreement was that I was to deliver to him 6500 sheep, for which he was to pay £6500 ; which sum he was to pay to Mrs. Robertson in discharge of her claim on me. I believe Green got delivery of these sheep in the latter part of February or beginning of March. Mr. Green is bound to pay over to Mrs. Robertson this sum of £6500 according to the terms of agreement. Mr. Pitt said this was all he. wished to enquire into at present.

Mr. Travers read minutes of meetings of creditors, at which it had been resolved to recommend to the Court for appointment as trustees on the estate, Messrs. Oswald, Curtis, J. W. Barnicott, and Evan Pritchard, with an allowance to the trustees of fire per cent, on the assets realised.

The Judge said that, in order to enable the trustees, when appointed, to wind up the estate, it would be necessary to ascertain what was the operation or non-operation of those deeds giving sheep in security ; and if those deeds were invalid, then the trustees for the creditors would demand the sheep.

Mr. Travers said another question would also arise, and that was respecting sheep on terms. It was necessary to know what proveable claims were covered by these agreements.

The Judge: It seems to me to stand in this way: Either a person delivers a number of sheep or pays a certain sum of money, for which he is understood to receive sheep, which are to remain in thehandsof the sheep farmer, who, as bailee, insures that the sheep shall produce a certain number of increase, and so much wool money to be delivered at a future period, in which case the bailor trusts to the solvency of the bailee, and he, in point of fact, parts with his property in those sheep, and becomes, if anything, a creditor—or, another way, a man gives a number of sheep on terms, and if he has them ear-marked at the time, agreeing to allow the bailee a certain percentage of the increase; and if the increase, excepting that per-centage, be also ear-marked in like manner, then these particular sheep are really the property of the bailor. In the first case, the bailor retains no property in the sheep at all; in the other, the sheep so marked remain the property of the bailor. In the one case the bailee is bound to produce a certain number of sheep of a certain description, not the same individual sheep as those put on the run, but equivalents; in the other, the ear-marked sheep are the property of the bailor; and if killed by a storm, or by lightning, the loss falls on the bailor, unless otherwise provided for by agreement.

Messrs. O. Curtis, Barnicoat, and Pritchard were then appointed trustees, with power to carry on the business if they saw fit; and protection was given to the petitioner until further orders. Next appearance in Court to be on 23rd November next.

Mr. Travers stated generally what was set forth in the petition, and added that the petitioner had been under the necessity of confiding, to a considerable extent, the management of his runs to the hands of people whose management was very different indeed from what it had been supposed to be ; and he had also suffered very serious losses by the sudden depreciation in stock. Immediately that the petitioner became aware that the condition of his affairs was such as to render it impossible for him to meet his liabilities, he without hesitation applied to the Court, in order to secure for his creditors at large such portions of the estate as yet remained. Mr. Elliott would be put in the box and examined. Charles Elliott sworn, and examined by Mr. Travers, deponed as follows:—I have lately been carrying on business as a printer and sheep farmer. As a printer I have been 22 years in business in New Zealand, and as a stockowner about 10 or 11 years. I also carried on business in Nelson in name of the Nelson Butchering Establishment. This Inst I entered upon as a ready means of getting rid of fat stock which I could not sell. I made heavy losses by the butchering business, and discontinued it. It lasted about two and a half or three years; and I lost about £3000 by it. In operations as a stockowner generally I have sustained losses, and by endeavouring to make these good, and having to work on borrowed capital, for which I had to pay enormous

interest, the whole profits were more &y busMss as a prihter I believe to haVealwaytf Veen profitable ; but I don't think that business h« been so profitable as to allow |of any profits being applied to other purposes : it merely gave me mv living. Within the last 18 months the value of stock in horses and sheep has been greatly depreciated, to the extent of at least one-half in the value of sheep. I c\n scarcely speak of horses, because they are at present unsaleable. My principal property was, to a very great extent, composed of sheep and horses. I have presented a petition to this Court, together with schedules.'.showing the amount of my liabilities and assets. The contents of these schedules are true to the best of my knowledge and belief ; the assets are made up as nearly as I could make them. The schedules show a deficit of £4519 3s 9d\

Damages fobJ[njury to Sheep on Board Ship. oaton v. ferguson. (From the Colonist, June 2.)

This was an action brought by James Henry Caton, cattle dealer, against Robert Henry Ferguson, master of the steamer Airedale, for loss and damage done to a flock of sheep, 335 in number, on the voyage from Picton to Manukau, through, as was alleged, the negligence of the defendant in conveying the sheep. Damages laid at £296 10s. This sum represented damage to 325 sheep at 10s a head, loss of 10 others smothered on board the vessel, £40 for plaintiff's expenses in Auckland, £25 for man's wages and expenses, and £54 for plaintiffs loss of time, 18 days at Auckland. The evidence showed that plaintiff had paid freight to the agent at Picton for 301 sheep; and that the captain had stated to him, on the arrival of the steamer, that he was short of pens. The sheep, however, were put on board, but it was found at Manukau that 335 sheep had been put on board, being in excess of the number in the agreement. It wis shown a!so that there was an absence of proper accommodation for the sheep, which caused crowding and smothering, and that in taking the sheep from the hold at Nelson, they were taken up in a sling by means of the steam winch, twos and threes being put together in the sling, which experienced witnesses proved was irregular and calculated to injure the sheep. Some objections were taken by the defendant's counsel, Mr. Travers, on the averment that the company were in the position of common carriers, as this was a special contract; but this was over-ruled. Stress was laid on the over-crowding of the ship through plaintiff having placed on board more sheep than had been agreed to be taken by the company. The Judge, on summing up, also referred to this last-named circumstance, and to the manner of slinging the sheep on board ship, and touched on the duty of the company, as carriers, to take proper care of the goods and chattels committed to their charge. The jury returned a verdict for the plaintiff, damages £40; the over-crowding by excess of numbers evidently weighing with them in mitigation of damages. Counsel for the plaintiff, Mr. Pitt; for defendant, Mr. Travers.