RESIDENT MAGISTRATE'S COURT.

Otago Daily Times, Issue 4172, 2 July 1875, Page 2

RESIDENT MAGISTRATE'S COURT.

Thursday, Ist July. (Before Ji, Bathgate, 'Esq., "ELM.)

D. M. Spedding and W. Hepburn : v. Thosl Fraser, &c.—Claim of L 2 15s 6d,defendant's alleged proportion of law costs, accountant's charges, te, in the bankrupt estate of George Perriman. MrF. Chapman appeared for the plaintiffs, and Mr Denniston for the defendant. J. Mouat, solicitor, gave evidence as to his instructions from several of Perriinan's creditors to proceed with the case in the Bankruptcy Court. Thomas Fraser deposed that his claim against Perri man's estate, was L 37 Is lOd, and he first knew of the resolution passed at the meeting of creditors, authorising the plaintiffs to take proceedings whenappearingin this court. Witness had not signed the deed. Mr Denniston moved for a non-suit on the grounds that there was no evidence to'show on what basis the differentproportionsof costewerepalculatecl, and tliat as Hepburn only paid his individual share he \vas riot in a position to, appear as plaintiff." In the course of his reply, Mr Ghapman characterised the defendant's evidence as /'subterfuge:" His Worship ruled that i a prima facie case had been established, and was willing to allow the defendant to'prove that he had been asked to pay; more thau': he should do. With regard .to the second point, it s was difficult to see how - the defendant was prejudiced by Hepburn being one of the plaintiffs. He (the Magistrate) was not going to throw this case ovei ; . on technical grounds. He said there, was a case to answer, and reserved the non-suit points. Mr Dennistoir, .in opening the case for the''defence, said that the plaint.ffa had mismanaged the Whole business, which had baen very loosely conduct-; e'dw The defendant 'neve£ gavei instructions to the plaintiffs, and therefore preferred spending several days-in court to paying such a small proportion: of the costs as 10s. The general body of the creditors were willing to take 5s in the £, and knew nothing of the action of the plaintiffs in putting the bahkrupt George Perriman through the court. ..Peter Miller, one of Perriman's creditors, was'suei for 10s 2d, and resisted the claim. Though present at the meeting, he heard nothing about bankruptcy proceedings. Perriman said "he-could give no further explanation; but there* was the books." Henry Miller,, another creditor, deposed that there had; been, nothing said at the meeting about upsetting the deed and taking bankruptcy proceedings. The amount for which he was sued was L 2 4s. He had accepted the composition (5s in the £) upon L 29 15s 3d. There was no resolution of the creditors atithorising the institution of bankruptcy proceedings. Archibald Mbir gave similar testimony. His Worship said that here there had evidently been a very bad case of insolvencyr-so bad that when the unfortunate creditors were called together they spent a good deal of time in angry altercation, and one defendant went the length of stating his conviction that the books of the insolvent were made up and "cooked" for the occasion. There was a preliminary meeting on the 24th September in Mr Mouat's office, and the same tone on the part of the creditors of the estate was then exhibited.. They agreed among themselves to upset the deed of arrangement, and to have Perriman adjudicated a bankrupt. There had been 5. material change "in tfte- facts to those previously presented to, the Court. Until His Worship heard Mr Mouat's evidence as to what took place on the 24th September, he could not understand how it was that there had been no formal employment of Mr Mouat. Light was now thrown on the evidence, as Mr Mouat said he had been employed by a, large number of Perriman's creditors to bring the case into the Insolvency Court. At this meeting, a resolution was passed handing the books over to Spedding and Hepburn, and to sell cer,tain movoiibles belonging to Perriman; and the meeting adjourned in order to have a report brought up by the accountant employed. At the second meeting, Mr Mouat has sworn posi

tively that he stated 'to the creditors then present what had takeri place; There was counter evidence by two witnesses' who were in the unfortunate position of defendants, that they heard nothing; but one poaJtive witness vram worth a dozen of them. Frasw had not coasented to take 5s in the £1; but e-Veni if he had, it would have been clearly careless1 of himnotto have notified that he withdrew from all resiwEsibility...: His Worship was prepared; to give effect to the point of misjoinder in tins way r It could be amended, as even in the Supreme Court, at any time. He must give a very plain, opinion—that the creditors should have ttwught twice upon the matter before coming into this Court, refusing to pay a few shillings..;- There was no plea that there had been any advantage taken of the defendants. The proceedings weie taken to punish a bad insolvent. For want o£ Mr Mouat'a. evidence, he was bound to nonsuit in the last case. These proceedings -were fairly and honestly taken for the common adivantage, and therefore the common payinentoF Is 6d in £1 should be made. These cas&s-'were calculated to put'an end to that good faiili-that ought to exist in mercantile circles. To say that everything miist be scrupulously.-., observer], to .'say that it inwt.-'bcf.'.-.jftoca-rately ..described,". would do inucni to destroy the- faith which now exists.i -They did not -want'■•signed'- minutes arid written proofs of every! action. The defendant undoubtedly by his presence at that third, ineefing without expressing dissent, ratified all that had taken place before and became responsibleThere was a legal responsibility .proved sw against the defendant in this case. "J With, regard to the misjoinder, there was no prejudice in His "Worship's opinion, arid he" might strike out Hepburn,l as Speddiiig was the one that paid the money. Etis Worship gave judgment for the amount claimed, with costs. , ; Mr Den— niston submitted that costs should not be allowed. .His .Worship said it. was .a bad case foir which something could not be said." Judgment would be for the plaintiff Speddiag, with.cosb1. His Worship had known of an insolvent jestate where the creditors' had lost their1"whole amounts and had to pay 20s in the £ pro rata, on their debts. As this was a test case, the" others would be contifiued;andrhe advised the. defendants to compromise the matter. Mir Denniston " accepted "the adiournmefct. rfi<i wished to know the day. His njiwHfep : These statements are quite irregujsa*oojnrag; from the Bar, and there must lie no remarks otstatements coming from the'-Bar.lt: is, highly irregular. To Mr Dennistofti; '■_ Not ;another word if you please.. ,;*>■" V^ The other cases were adjourned till th&-;lGtJk inst. .