SUPREME COURT.—IN BANKRUPTCY.

Otago Daily Times, Issue 2129, 1 December 1868, Page 2

SUPREME COURT.—IN BANKRUPTCY.

MONIMY, NoVKMJIKII .'JOtll. (Before Fi« Honour Mr .Justice Ward.)

Rv. Gkokok Pattuiisov.—Mr Sinythies applied that the bankrupt might pass his iinal examination and bo discharged. The order was granted.

lii: Ar.riiKu Hi:j.i.yf.k.—Mr M'Keay . . apj)lied for adjudication of bankruptcy, and stiirgciited that iljo ordinary notices in connection with the ban'sruptcy proceedings should appear in one of th» daily papers instead of the Gazette. Hia Honour consented that such notieCß niighfc apnear citlier in the Daily Times or tha Sun. The learned counsel's application, was granted. Kk Arthur llaksku,. —Mr M'Keay appeared to support the declaration of tho complete execution of a deed, and there being no opposition the application was complied with. Kk John" C'aktkk.— Mr M'Keay appeared in support of a petition for adjudication. Grunted.

Rk J. It. Hodgson.—This was anx application for final examination and diecharge. Mr Wilson appeared in support, and obtained the appointment of =i day. Re John Matiikwh. —jMr M'Koay made a similar application to the previous one, and tho Court tixed tho 14th. December.

liE Andkkw Hamilton-. —At the request of Mr Turton the matter vraa adjourned until next bankruptcy day. 11k Roebuck and Ai-I'M-:<:aktii.— Mir 'Barton requested that this case might be adjourned, inasmuch as necessary accounts had not been filed. An adjournment vrau granted till the 14th December.

He W. H. MAN:iKiELi».--Afler some remarks from Mr Howorth in respect to tho non-attendance of creditors at meetings held, the 14th December was appointed fcr the last examination, &c Re J'a.mks Toud—Application for final, examination and discharge. Mr Harris explained that on a previous Court day ha made a similar application, but that Mr Smythiea having intimated his intention to oppose on behalf of certain creditors, tho matter was ultimately postponed till that day. His Honour : For whom does. Mr Sinythies appear : Mr Sinythies :Mr liobt. Gibson. On being examined by Mr Smythics, tho bankrupt stated that he commenced fanning about six years ago. Could not exactly say what amount of capital ho had when he commenced. There were two hundred acres of ground, and he was possessed of about JL.3GO, besides stock, &c, to tho value of Ll5O. He did not borrow the L3OO. It was hia. own money. He had put his father down as a creditor, he,having at various times advanced bankrupt money. Advanced him L3O nnd LGO, 12 or 18 months ago, but he (witness) gave him no security. Witness had had dealings with. Messrs Driver and M'Lean, andgavo them, a bill of sale over hia properly, to secure, money advanced, &c. They commenceti to advance witness money about two. year 3 ago, and their account altogetheramounted to about L7OO. The bill o£ sale was given about 18 months, ago. Owed them about LSOO at that lime,. aucE. the sum had since increased t<> L'<OQl They had a sale, and everything was. sold, and witness presumed their claim, was settled. There was about LOG in. hand. Witness had a threshing machine, which was also included in tii« bill o£ sale, aud it was sold, at the sale. "Witness had since worked the machino, not on his own account, but on account of the owner, and had received money in respect to the work on his behalf. Witness had been in tho h-^bit of travelling about and threshing for the farmers. The. owner was to get a per centage -with profits. Had received money on accont.fc of the work. Was not now working the* machine. It was still in his possession. There was no money owing witness in respect to the. work. Know a man named Chadack. He did not owe witness any money for threshing. Had threshed for him, but witness gave a man who worked for him. ft» order to. receive tho money ~_ x

tho man who wa3 working the madiine. Believed he gave that ordc-r Uforc ho filed his declaration. Conid not aav how long >more. The tlm-ahing was done Rome <-i','lit or nine months eg". The man to whom ho r.'av(3 the order ww niancd Joe, but he did not know hia s'irnaine. Some mangold wnrtzel'i and tnrnipn wrivs sold to Mwm-rj Potter and C>. There wero a few on the "round, and they said they would give witness some timber for them. Witness had. however, received nothing for them. That wan Mine.; the sale ; they wnrti not worth lifting. Witness employed several labourers. Had not

pairtiho whole of them their w;i {,"■(«. Thomas Davidson worked for hi:i>. 8.-iieved hii account was 1,24 for wcgi*s. Jarnis liovd

waa with witness for four or five yearn. Witm.vs owed him 1/53 Uy*. A man named Lainberton also worked for witness, to whom ih'.-rc was owing L(J2 oa. Was not sure if that was tho exact amount. To

JarncK M'Crertdy there was owing L'JO V-U. Did not toll any of the ;iV»ve mentioned that a bill of sale had been givon Witness pve.mimed they worked for him believing that the fnrm waa hi<s property. Thomas Davidfon assisted with* the machine. H<-cnt bands ; but witness worked the nurohiuo himself. There was an agreement as to witness's remuneration. Thou. Davidson's wages were included in the money rw.-ivecl. Was indebted to Robt. Donmlly, who cot judgment against v.itncas, and execution in tho Resident M.v gistrate's Court. A bailiff, or another man who accompanied him, said they intended to levy on an hydraulic press. Witnei>a intimated a' the time that it was not his property ; that Messrs Driver and Maclean held a hill of sale over it ; and one of them 8,-iid that it was not registered. It had been put down as an asset in tho estate. Witness had been pofi.s^psed of four horses. They were included in tho bill of sale. One of them was disposed of at the sale. Oarmichael, who had been working for wi'ness, obtained ; two horses in lieu of wages. Sold him one after the sale. Also sold one to Mr Paterson, a baker, at Green Inland. Messrs Driver and M'Lean would have to arrange with Oarmichael for the one they had Bold him. In reply to Mr Harris, the witness said that ho himself purchased the threshing machine spoken of, and arranged with Messrs Oliver and Lowe, to pay for it by bills. Witness could not take up the bills when they became due, and consequently his father took some of them up. Made no arrangement for his father to be a joint proprietor in regard to the machine. The las* bill paid by witness's father amounted to LI.OO, and tho previous one to LI.'JO. When, witness borrowed money from Messrs Driver and Maclean there Wiis an arrangement made that he should give them security whenever they demanded it. The money advanced was obtained on that understanding, and the bill of sale was given in conformity with that agreement. Paid L3OO a voar for tho 200 acres of land. Property of that description had decreased in vaiuu since witness became lessee of tho farm. The rent, too, was very high—wages were high, and tha prices of produce low. Had always lived economically, and worked on tho farm. Had put nothing !>}' for himself. To Mr Smythiea : I never lost money by gambling ; never did gamble .anywhere. In reply to Mr Harris, tho witness stated that ho had been a teetotaller for .some years.

Mr Smythies contended flint the Vankrnpt l>;iil manifestly commenced business with too little capital, and that ho li:id been employing labour without any proBpcct of l.'uhitc (il)lo to pay tlio.so v/liomi his cmployod. Tlio dixpoaal of two liorseu to one of the crcdifors, under tlio «irci)infitances, constituted n frandnlont profi--renco. ITo Biilimitted that thu bankrupt was not entitled to an ord'-.r.

Mr Harris fiUff^es'cd that the bankrupt ought certainly to receive some consideration. It should I c recollected that, in addition to LliOO, ho ulho had to the value of LlTiO in stock, when ho commenced business—the whole sum being more than many persons had commenced business with in ()t;i'.fo. Had the seasons been favourable he would have been placed beyond all difliculty. T!;o only matter in respect, to which he could bo blamed, was in regard to the disposal of two of th.j horßos. It wis probable, however, that at that time he was under the impression ho would have hern able to carry on. His Honour considered that tho conduct of the bankrupt in regard to the horses, brought him within the T'Oth clause. It was probable that he anticipated ho would get assistance to enable him to carry on. He, however, disapproved of tho practice of giving one wealthy creditor a bill of sale—a preferential claim—and at ihn same time depriving poor labourers of their hardly earned wages. It was to ho regretted that the wages should have been allowed to run on as they appeared to have dono. It was his duty, ho considered, to mark his disapproval of such conduct by suspending tho order for six wecka. Order suspended accordingly.

Hi', Nicholas "Bi;kiut,l — Application for final examination ami discharge. Mr lloworth appeared in support of the motion. Mr Maciissey sui/gested that the mater sin mid stand over for a. work. After some discussion, it was decided that the bankrupt, should be examined. Oji being interrogated by IVTr M acasnoy, he stated that he filed liis declaration of insolvency on the .'Srd August, lie then entered into an explanation respecting somo property, which he piin-.hased in Cumberland street., and handed over to trustees on behalf of Mrs JJi-r----rill. Valued the property at L1,1(H), and lio had not iusfvuetod tho auctioneer to dispose of it for less than L 1,200. Could not explain the nri ture of the tr;i.it doel. Could not. .say whether he had an interest in it or ■not. It had bfs-n sot apart on behalf of liis wife and children. Sorno of the improvements '.•"'-■otod io tho house were paid for by monoy obtained from a Building Society. Witness did not. consider himself in .cli!!iculiies until tho B:uik refused to render him further a^nt-am-?. He had reivivod inducements from the Bank which enabled him to civvy on business, aid lie had thought that their aid would bo continued. Them was now sntlicicnt to pay 5s in tho pound. Bnd he ! een enabled to carry on be would have been able to pay 20a in tho pound. The amount of the composition was n it. paid because the debts could not bo got in, nor realised in time. After the bankrupt had I'oon further examined, Mr Macassny f'l'd that bcffiv :ui order was granted, the bankrupt should ' o CJilled'upon to furnish furfc.ier ovid«!iicc as to his position under !ho tru-*- deed.

MrHowortb dr.jw attention to s<>w.il matters which ho considered justified tho gran liny of the order, and to tho report of thoMrustees, which set forth that the bankrupt had rendered them all the assistance in his power. His Honour also alluded to tho favourable manner in which tho trustees had spoken of tho bankrupt, but said that post nuptial settlements which were made within a few months of a man Vwcominrj bankrupt must be regarded with suspicion. He directed that tho caao should bo nd-

journed until iho next hitting m bankruptcy.

IX BANCO,

SOTION TO fX)NTMtM SAI.K,

Hakims v. Siianlky.—This was an application for an order to confirm sale. Mr Howor h appeared in support of the motion. _ Mr Smith stated that there was no opposition, and an order was mado. MOTION TO JJIS.SOI.VB AN INJUNCTION. ORKKI.L V. JoNI'.S AND ANOTHER.—AII adjourned motion to dissolve an injunction, granted to stay execution upon a judgment obtained for 'ho sum of LIOO. Mr James Smith, wi?h Mr Macassey, appeared in support of tho motion, and Mr Smythies to show cause. Mr Smith was proceeding to state that notice had .' een given for two purpose*,

to std aside an order of His Honor Mr Justice Chapman, when Mr Srnythies

in'imated that this was an adjourned case, and that they should now commence proceedings at tho stage at which they concluded on the previous Court day. Mr Smith contended that the application was now limited to tho second ground in the no'Jw, viz . to set aside the order, with cost*. Mr Smith was about to state the particulars of tho declaration, when Mr Sinythiea remarked that there had been an adjournment granted, in order to enable the filing of an affidavit, Mr Smith, on that occasion, asked to bo allowed to proceed with the case, and file an affila-

1 vit afterwards. Ho (Mr Smythies) then ' contended that it could not be received. i Mr Smith understood that an adjournment 1 took place on tho implied, if not tho ex- ; 'pressed, consent of the other side. It • was not now competent for them to ob- ■ jvet to the course proposed to be taken. | Jfis Honour suggested that Mr Smith Kliould show the Court that it could admit tho affidavit. Mr Smith replied that tho Court could receive it. After further argument, Mr Smith read the declaration, and said it was asked amongst other things that the deed of the I.Bih January might be declared void, and that tho aflidavits on which the kt. jiart.e injunction was obtained would bo satisfactorily answered by three affidavits filed by Messrs. J. H. Harris, J. Jones, and J. 11. Jones. He also contended that there was ample evidence as furnished by tho affidavits of those gentlemen, showing a materiil suppression of facts by the plaintiff when applying for tho injunction. It wan well known that when the ex parti injunctions wero applied for, it was necessary that the Court »hould bo fully informed in respect to every material circumstance in connection with the case. If it was afterwards ascertained that any material fact had been suppressed, it was a proceeding always regarded as being futal to tho injunction and tho order under which it had been obtained. Th«ro wero inateri:'l facts kept back in connection with the correspondence respecting tho granting of a new lease. The afiidavits ho had alluded to, wont to shew that the plaintiff really a'.fjuiescod in tho Bale made. In the absence of proof to the contrary—and there was none before the Court—it was bound to presume that the registrar had properly performed his duty. The learned counsel quoted several authorities in support of his views, and urged that no remarks of his could make it more clear to tho Court, than it was at the present timo that there had been a suppression of ma'erial facts. The second ground urged was that the facts disclosed were not such as warranted tho granting of an ex jiarfr. injunction. Ho submitted that such was the case. Tho fourth ground was that no case of fraud or collusion was made out by the plaintiffs declaration. Tho declaration did not set out fraud ; there was merely, an aliegtigation that tho sale was not conducted in such a way as to secure tho best price. Tho plaintiff, too, before asking assistance in compelling redemption, should shew equity on his side by paying off the necessary interest. Mr Macassoy followed on tho same side. Mr Smythioa submitted that tho motion must be dismissed. The other side had raised merely points of djmurrer. Regarding tho <juostion as to the alleged suppression of facts, ho contended that everything which was necessary to be shown was set out in tho Oth clause, and that tho contents of the letters worn merely an amplification of what appeared in the Oth clause. It was also urged that no case of fraud or collusion had heon made out in the plaintiffs declaration. They did not allogo fraud, but an improper sale. Ho contended that the motion ou^ht to bo dismissed, and with costs. Mr .Smith having agiiiu addressed the Court, flis Honour remarked that tho injunction must bo dissolved. The motion, therefore, to dissolve tho injunction was granted, with costs—tho costs of the day granted to Mr Sinythies on a previous occasion to be a set oft'against the costs now granted. MOTION FOII RUI.K NISI. Isaac v. Kemj'tjiornk.—Mr Barton moved for a rulo itisi to rescind an order of His Honour Mr Justice Ward, granting the defendant leave to plead. Tho learned counsel intimated that he submitted the motion on. the three following grounds :—I. That no reasonable cause for the delay in pleading within tho time limited was shown by the defendant. 2. That of tho two ple-is submitted by tho defendant in Chambers, tho first was manifestly untrue, and that the second was not issuablo. 3. That tho learned •Tiulyo improperly refused evidence on the part of tho plaintiff on the hearing of tho summons, viz., tho affidavit made by tho plaintilFin answer to the affidavit of the defendant's solicitor. Order made.

1 Jam. r pay v. Crafts and Chapman. — Mr Wilson appeared in pursnanco of a rule nisi to show cause. There was no appenraneo for tho other side, and the ca^o having been called on, it was diach:ir::ed with costs.

The Court then adjourned xincdie.