SUPREME COURT.—IN BANKRUPTCY.

Otago Daily Times, Issue 3049, 14 November 1871, Page 2

SUPREME COURT.—IN BANKRUPTCY.

Monday, 13th'* November. ' (Before His Honour Mr Justice Chapman.) appointment of trustee. The appointment of Mr Leary, as trustee in the following estates, was confirmed :— Alexander Mayo MUler and Henry WiUiam Nixon, of Dunedin, general merchants, on the application of Mr B. C. Haggitt; Frederick Horatio Evans, of Dunedin, commission agent, on the application of Mr Catomore ; Isaac Buckley, of Woodhaugh, contractor, on the application of Mr M'Keay. The Court also fixed the 27th inst. for the last examination of the bankrupts. application for leave to file. Mr Kenyon moved for leave to file a petition in re S. G. Wood, the time for tiling having expired on Saturday last. The necessary preliminary proceedings had been taken, but it had been found impossible tobrmg the I petition to Dunedin in time. In any case, however, it could not have arrived here untU after the Court was closed on Saturday. His Honour : What power have I in the matter? , , .. . Mr Kenyon said he understood that on more than one occasion His Honour had allowed a petition to be filed after the expiration of the three days mentioned in the Act. The application affected many other cases, because it had been found iv those cases that the time aUowed was not sufficient. If the appUcation were granted, adjudication could be applied for afterwards. Ultimately, . His Honour said he would enquire mto the circumstances under which he had granted a somewhat similar application. He thought that in that case the negligence which occurred was first fuUy accounted for, and that inasmuch as a final order of discharge cured previous defects, he (the learned Judge) aUowed the petition to be filed, the bankrupt taking the risk of what might occur afterwards. He would, however, take time to consider the application. complete execution of deeds. Mr James Smith moved that the time for applying that a Deed of Arrangement made in the estate of John Thomas Chaplm be declared completely executed should be further enlarged. It seemed that the Registrar had been unable to come to any decision on the evidence given as to the value of the security of the Bank ot New Zealand, and inasmuch as there is an arbitration case pending* by which means it is expected the exact value will be ascertained, Mr Smith asked that the time for making the application should be postponed until after the sittings ot the arbitrators had been concluded. His Honour said he had read the report, and it certainly appeared to him that from the nature of the security, it would be very difficult to value. In answer to His Honour, _ Mr Harris said it was expected that tlie arbitration proceedings would be brought to a close during the present week. Mr Macassey opposed the application on behalf of the Bank of New Zealand. Me quoted the 266 th section of the Act, contending that it provided that the application must be made within three months of the filing of the deed, which took place on the 24th April. He also cited the 267 th section as to the time within wliich complete -■ execution must be made. Subsequently . he cited the case of R* P°™£„ X \-> . Law Repts., Chan. Appeals (186o ; J>), 104, in which case it was stated, mat tne , Lord Chancellor had no power to direct a . trust deed to be registered under the Bankruptcy Act, 1801, when more than tweiity--1 eight days had elapsed since its execution, J although the deed might have been left with ' the Registrar, and an application for regisb tration made to the Commissioner witlun I the twenty-eight days. He next cited Ke J Skinner, 10 Jurist, N.S., 1137, and coul tended! that both cases were unfavourable to the application of his learned fr»encL i | Apart from that- (question, however, he sua-

mitted that if the application was one which. the Court had power to entertain, it was left essentially to the discretion of the Court, and it should not be granted in the absence of evidence showing what had been, done under the deed. ,iS Mr Smith said he thought liis learned friend had altogether overlooked the latter part of section 272, wliich gave the Court power to extend the time on good cause being shown. . There could be no doubt aa to the power possessed by the Court under that section, in pursuance of wbich applications had already been made in this case, from time to time. He would ask the Courfc to extend the time for making the appUcation for a month. After argument, His Honour said he must refuse the application. He was sorry to have to render the proceedings abortive, cause a fresh deed to be filed, and so create expense; but he could not help it. Mr Smith said that as' the point was an. important one, he would ask leave to appeal upon it. His Honour said he considered Mr Smith was entitled to have leave to appeal The application in re WUliam FuUer was adjourned for a week by consent. FINAL ORDERS. Breading and Reeve.—The application of WiUiam Breading, of Dunedin, cabinet maker, for a certificate of discharge, was granted, as was also that of Edmund Reeve. Thomas Farrelu—The application of Thomas Farrell, of Dunedin, hotelkeeper, which had been adjourned to enable Mr Harris to caU witnesses, was mentioned by Mr Catomore, counsel for +he bankrupt. The latter was examined by Mr Harris, who appeared for creditors. The bankrupt stated that he commenced business _as a hotelkeeper, three years ago, at which time he had between £50 and £60. His wife conducted the business during his absence from home. He had been in the employ of Messrs Wilson and Birch, brewers, at the rate of Sts per day, but when employed by them regularly he received £2 per week. He could not say what he had received from that firm, in money and goods during the three years ; probably he earned about £60, during the whole of that time. He had been possessed of a horse and an express waggon. The horse he purchased from Messrs Briscoe and Co. Tlie express he obtained from Mc Brade, his landlord. It was not paid for ; it was given by Brade, who used to board at bankrupt's house, as compensationforservices rendered. The rent of the house was £1 per week, it had beenarranged that Brade should pay 16s a week for his board. When bankrupt filed his declaration of insolvency he owed Brade £45 for rent. Before the 30th July he was led to believe that Brade was in his debt, that was the reason why bankrupt told Mr WUson, of Wilson and Birch, that suclt was the case. He did not keep any books respecting the with Brade. The latter seized the liorse and express for rent on the morning after bankrupt filed. The express had since been sold to another party. It had not been returned to bankrupt by his wife or by Brade. About a. month prior to his insolvency bankrupt went to Messrs Keast and Co , brewers, and purchased three or four hogsheads of ale, valued at £12 16s. That was the first transaction he had with Keast and Co., and he told them at the time that he intended to pay a portion of the money at the end of the month. They ultimately sued him inthe Resident Magistrate's Court, ancl obtained judgment; but he filed previously. He was not in a solvent state when he obtained the beer from Keast and Co.. but he did not inform them ofthe fact at the time. When he obtained the beer he had a reasonable prospect of being able to pay for it, but nofc of paying all his other creditors 20s in the £. He could not say to whom the express now belenged. The bankrupt, on being cross-examined by Mr Catomore, stated that the express was sold by the bailiff on behalf of the landlord, and that he was now indebted to the latter to the extent of about £6. He had looked upon the express as his wife's property. She was not interested in it at the present time. Wilson had been afc his house several times since his insolvency. He came there to look at the stock. On one occasion he knocked the glasses about, and handed the cigars to people then in the barWilson subsequently told him that the firm, of WUson and Birch could oppose his application for a certificate and get it suspended for six months ; but that if he (bankrupt} would promise to pay them they would not oppose him, but give him time to pay. Mr Wilson, of Wilson and Birch, who was examined by Mr Harris, stated that bankrupt had been in the employ of the firm at the rate of 8s per day. He thought that the firm had paid bankrupt, in goods and money, more than double £60. Bankrupt ultimately told them that Brade had offered him an. express, and that he thought he could earn more money by it than in the employ of the firai. Bankrupt had always given him to understand that Brade was in his debt. The firm had always been willing to give banfcrupt any time if he would pay the debt. About a week ago witness noticed that the name of the bankrupt's wife was on the express referred to. It was not true that he (witness) gave about a pound and a half of the bankrupt's cigars to people in the bar; neither did he knock the glasses about in the way the bankrupt had described. The box: contained Hot more than four cigars ; he took them out of the box, and paid for them, and he also paid for several glasses of beer foepersons who were present at the time. Anything he liad he paid bankrupt for. Mr M'Carthy gave evidence regarding the transactions of the bankrupt with the firm, of Keast and Co., with wliich firm witness is connected, showing that the firm waa compelled to take legal proceedings in the hope of obtaining payment of their debt. Mr Harris contended that when the bankrupt obtained these goods he had no reasonable prospect 'of being able to pay for them ; that there was at least cause for the suspicion that the vehicle belonged to the bankrupt's wife or family at the present time, and that the issue of his certificate ought t» be suspended, for whatever period the Courfc might think fit. Had substantial proof been given that the vehicle stiU belonged to ther bankrupt, he (Mr Harris) would have applied that it should be handed over to the Trustee. After Mr Catomore had been heard ia reply, His Honour decided to suspend the bankrupt's certificate for three months. Re Julius.—Mr Kenyon stated that Mr Julius, of the firm of E. A. and E, Julius-, was in attendance, but that the report of the Trustee, Mr Robert Campbell, had not been received. He wished to know whether His Honour would grant an order subject to His Honour said he could not do that. Under the 120 th section he was bound to take into consideration the circumstances of the case, whether there was opposition or not, and unless he saw the Trustee's report he could not tell what the circumstances were. Mr Kenyon : Could your Honour dispense with the attendance of the bankrupt ? The Maori, which was to have brought the report, has gone north instead of coming south, as anticipated. After an explanation had been made hy the bankrupt, who also stated that he <hd not anticipate any opposition, His Honour said he would dispense witft. the attendance of the bankrupt for the future, but that he must run the risk of any opposition that might start up. EXAMINATION OF WITNESSES. Mr Catomore applied that the examination, of witnesses in the estate of Isaac Buckley, of Woodhaugh, near Dunedin, contractor, be postponed untU the next sitting in Bankruptcy. Mr M'Keay, who appeared for the trustee and creditors, said it was important that the witnesses at least should be examined. Mr Catomore intimated that Mr Edward Cook, the bankrupt's solicitor, was unavoidably absent. It was ultimately decided that the matter should be postponed until the next sitting of the Court in Bankruptcy. The Court then adjourned.