SUPREME COURT.

Lyttelton Times, Volume XXXIII, Issue 2928, 28 May 1870, Page 3

SUPREME COURT.

Fridat, Mat 27. (Before Mr Justice Gresson.) His Honor sat in the Court Chambers, at 11 o’clock this morning. BB ROBERT PARK, DECEASED. Mr Jameson applied for probate to Marion Park, executrix, reserving to the executor named. His Honor made the order as prayed. BE EPHRAIM COFFEB. Mr Jameson applied for probate to Bsrnabus James Hale and Thomas Carey, curators. His Honor made the order as prayed. In Bankbuptct. BB THOMAS PURDIE. Bis Honor : In this case of Thomas Furdie, I have considered the evidence, and I must say that I am not at all satisfied with the conduct of the bankrupt. It appears to me that without going the length of expressing my conviction that there was a deliberate intention to mislead and misrepresent to Mr Mason the state of his affairs when he obtained the iron in question; there was at all events conduct on the part of the bankrupt which was calculated to mislead, and did in fact mislead Mr Mason as to the state of bis affairs. I think I am not pressing unduly on the bankrupt in making this statement, because I take Mr Mason’s account, which shows plainly that there was misrepresentation. 1 take Mr Mason’s account of the transaction, as qualified by the bankrupt’s own statement in evidence, and it appears to me, taking that view, that the bankrupt’s statements to Mr Mason were calculated to mialiad and not strictly true. He stated first that he wanted six tons of iron ; then subsequently he returned and made a statement of his having obtained two tons, and therefore only required four tons ; and then of his having obtained two tons again. Now the facts, as appearing from the bankrupt’s own evidence, are these: He states that Mr Neighbours didn’t want more than about two and a half tons. Therefore, looking at it from the bankrupt’s own point of view, the statement was untrue, and was calculated to mislead with regard to the place of delivery. He would not inform Mr Mason as to where he intended the iron to be ultimately delivered. He led him to think that it was to be delivered at a different place to where it was actually to be delivered. He accounts for that by saying that he did not wish Mr Neighbours to know where the iron came from, so that he might not be ousted of his profit. Now, if there had been perfect openness in the transaction, I don’t see why he should not have stated openly to Mr Mason where the iron was to be delivered. There is another important point in the case. Mr Purdie, by his counsel, seems to have urged od the Court that it wa» a justifiable course for a trader to go and represent himself in a state of solvency under circumstances such as those in which Mr Purdie was placed in at the time he went to Mr Mason. It appears that in point of fact he was not in a position to pay at the utmost more than 10s in the pound. He says it was true that Mr Mason’s suddenly refusing him credit, coupled with the fact of Mr Hargreaves refusing him credit also, led to his insolvency; but I think traders must understand that they are not in a wholesome, still less in a sound position, if they are going on in their business by the sufferance of any particular creditor. That was his position. It is true he might have gone op for months and carried on an extensive business but for the creditors taking the action they did. Trade cannot possibly be carried on safely to the public, if it is not understood that the Court will censure and disapprove of such conduct as this. One objection raised to his discharge was, that he did not keep proper books of account. It is true that his accounts were kept in such a manner that a man in business onght not to keep his accounts in, but that, I think, is » matter of comparatively small moment where there is anything like misrepresentation, as there is in this case. Upon the whole, therefore, the order that I am disposed to make is an absolute order, to be suspended for 12 months. Mr Garrick applied for the costs of the opposing creditor; also that protection be withdrawn. . . His Honor said he had never before included the withdrawal of protection in the final order. However, if he refused to withdraw protection, it would simply make the suspension of no value at all. , Bankrupt: What is to become of a man • wife and family. . . His Honor : I don’t know. You ought to have considered them before. . Dr Foster questioned whether his Honor

coulA wMMraw promotion on an u parte application. He thought that notice should be served. • . His Honor ssli bebfid oonsidered this bass most carefully, and>M Jkoafht it very likely that an application for ||p-wlthdrawal of protection would have been made. What end was there to be gained by requiring Mr Garrick to serve a separate notice 7 It would amount to a re-argument of the matter at great expense, and the Court could not possibly know the circumstances of the case better than now. He thought that it was quite within his jurisdiction to withdraw protection now. He did not see that Dr Foster would gain anything by a separate notice being served. His client might get out of the way. Dr Foster doubted whether an order could be made on an application which had not been set down and which was altogether ex parte. His Honor thought the Court had absolute jurisdiction, and he did not see any reason why it was not in the power of the Court to withdraw protection at the time of suspending relief.

Mr Slater said his Honor could make the order at once. That was the practice at home. Mr Garrick said he wished to make himself distinctly clear on the point. If it were a substantive application, he should give notice, but at the time of the final bearing, the Court might order the suspension of a bankrupt’s protection, and withdraw that protection which hitherto existed, and this might be done by means of one or two orders. After some further discussion, his Honor made an order suspending relief for twelve months, and withdrawing protection Ctwo separate orders); the opposing creditor to have his costs out of the estate. RE THOMAS LESTER OSBORN. His Honor : la this case I do not feel satisfled with the conduct of the bankrupt. I think that it has been unsatisfactory in two or three respects. First, it appears to me that he has not dealt altogether fairly and indifferently between his creditors; that when he ultimately felt himself to be in embarrassed circumstances, he disposed of part of his property with a preference to some of his creditors, and 1 think more especially to his son, a lad of fourteen years of age. He dealt with him in a way, on his own showing, that was hardly justifiable. Before I leave that subject I may just notice that the bankrupt’s evidence is not fully borne out bv the evidence of Mr Swan, whose evidence is not very satisfactory certainly. The bankrupt states that he sold a property for £2OO, and that he paid £9O of it to Mr Swan for cash lent about twelve months ago. Now it appears, when we look at Mr Swan’s evidence, that such was not the case. Mr Swan says that he lent the bankrupt twelve months before bis bankruptcy £BO. There can be no mistake of the sum ; he said be had £6O, and made up the remainder by borrowing £2O from Osborne, the horse-dealer.

Bankrupt: I beg your Honor’s pardon ; I paid him £lO additional as interest. His Honor: Don’t interrupt me; this is evidence given on oath. That is certainly not satisfactory. Then there is the paying of his son, a lad of U years, £4B of this money, although he boarded him for twelve months, or at the rate of nearly £1 a-week for this lad. I think that a person in these circumstances should be disposed to treat his creditors better than his own son, and not in this Way. Then as to his accounts. It appears to me he has been careless—l don’t say there has been wilfulness in the statement of his accounts. He says he furnished to the clerk of the Provisional Trustee certain chattels which were not included in his statement, Possibly it may be so, and, therefore I do not say there has been anything wilfully wrong with regard to this; but it appears to me that there has been carelessness on the part of the bankrupt, and I am confirmed in this view by the evidence of the trustee, which shows that the bankrupt’s conduct amounted to indifference, and that he did not offer any assistance, or at most very little, in making up his accounts. Upon that part of the case, the trustee says. [Read.] Then, on being examined by the bankrupt, Mr Warner says. [Read.] I have taken the evidence of the trustee, as qualified by that of the bankrupt, and I think it is not pressing too hardly on him—on the broad inference that he was not so anxious as every bankrupt ought to be to give every assistance in the making out of his accounts —when I think that is a ground for censure also. Under the circumstances, the order I am disposed to make is an absolute order, to be suspended for six months. Mr Garrick applied for the trustee's costs of opposition, and also that protection might be withdrawn. His Honor acceded to the application. KB THOMAS MACK AT, Mr Slater applied for an order of adjudication and meeting of creditors. The Registrar informed his Honor that an order of adjudication had already been made in this case. On referring to the file, this was found to be the case; and his Honor thereupon made an order annulling the previous order of adjudication, and extended the time for applying for a fresh order until Tuesday next. KB PATRICK FREDERICK SINCLAIR MILLER. Mr Slater applied for an order of adjudication and meeting of creditors. His Honor made the order, fixing the meeting of creditors for Wednesday, the Bth June, at 12 o’clock. BB HORATIO JAMES WOOD. Mr Joynt, on behalf of the petitioning creditor (Robinson Ruddick), applied for an order for leave to issue summonses to Messrs Philip Hanmer and Robinson Ruddick—the first to prove the bankruptcy, and the other to prove the debt. His Honor made the order as prayed, and extended the time for applying for an order of adjudication until Tuesday next. RE ARTHUR ROBERT COOPER. Mr Hanmer applied for an order confirming the choice of trustee, and appointing the last examination for Monday, the 27th June. RE THOS. NICHOLSON CLARKSON. Mr Bamford applied for an order o f adjudication and meeting of creditors. His Honor made the order, and fixed the meeting of creditors for Wednesday, the Bth June, at one o’clock. RE J. H, BODING. Dr Foster intimated that in this case Mr J. S, Williams and himself had agreed to a deed, and they had reason to hope tnat all the creditors would agree to it. In Banco, graham t. peppebell. The further argument in this case was postponed by consent. The Court then rose.