SUPREME COURT—IN BANKRUPTCY.

Otago Witness, Issue 904, 27 March 1869, Page 8

SUPREME COURT— IN BANKRUPTCY.

Monday, 22nd March. (Before His Honour Mr Justice Ward.)

EXPENSES TO WITNESSES.

Re Charles Anderson. — Mr W. D. 'Stewart explained that he appeared, in this matter, to oppose, and that Mr W. W. Wilson appeared on behalr of the bankrupt. Two witnesses had been sum-moni-d to attend, but Mr Wilson had informed him that he advised them to leave the Court unleßS they were guaranteed their expenses. Hedrewthe attention of the Court to the fact, because he did not consider that the course adopted by Mr Wilson was a judicious one. The learned Counsel cited Section 325, which provided for the payment of the expenses of ■witnesses summoned. His Honour : There are no general rules on the subject. Mr Stewart : ~No, your Honour. Mr Wilson, in explanation, said he was prepared to take any responsibility in connection with the advice he gave to his client. The parties who were to be examined resided about 100 miles from Dunedin. They came here in obedience to a subpoena, and asked his opinion whether their expenses ought not to be be paid. He replied, certainly they ought .to get their expenses. When they had S given their evidence they might find it ' difiicult to vet their expenses. He asked j Mr Stewart whether he or his client would i guarantee the parties their expenses. i\e, however, made no answer. He (Mr Wilson) repeated, " Will you or will you not do so (" and failing to get a satisfactory answer, he told one of the witnesses to leave the Court until some arrangement hsd been made regarding the expenses. Mr Stewart intimated that the expenses of one witness (Yernon) had been paid. Mr Wilson said the witness had t>orrowed L 2 from Mr Herbert, but had not, he t elieved, been paid his expenses. He gave the advice referred to ten minutes before the Court opened. Jn reply to His Honour, Mr Stev\art said that one of the witnesses was the wife of the bankrupt. Of coarse his (Mr Stewart's) client was prepared to pay whatever expenses the Court directed. His Honour explained that unless the expenses of witnesses were paid they could not be subject to penalties on refusing to attend. Was there any estate ? Mr Stewart replied that there were some debt/S represented as being worth a little, together with stock-in-trade. Mr Wilson suggested that if no expenses were paid it would be almost tantamount to ignoring the fact that the witnesses had come to town. His Honour asked Mr Stewart what his client was prepared to do in the matter ? Mr Stewart said he was willing to pay whit the Court decided upon. His Honor : I presume, Mr Wilson, you are satisfied with that guarantee ? Mr Wilson : Yes, if Mr Herbert says he will pay travelling expenses, &c. The witnesses are here for the benefit of the opposing creditors. His Honour : Will you be satisfied with whatever expenses are ordered by the Court ? Mr Wilson : Yea, your Honour. ADJOURNED FINAL EXAMINATION" AND DISCHARGE. He Thomas Everett. — MrE. F. Ward appeared in support. He stated that the declaration of insolvency was filed on the 20ch January ; that the matter was gazetted on the Ist February ; that Everett was adjudged a bankrupt on the 17th February ; and that a meeting of creditors w;».s appointed to te held on the 2Uh, but that it was afterwards adjourned until the 3rd inst. Ultimately last Monday wa3 the day appointed, but was postponed with the leave of the Court until that day. The usual notices had been given in the newspaper, and the proper documents filed. No person appeared to oppose. The bankrupt was briefly examined by His Honour. The former said he had given a bill of salo in favour of Mr Newman, who lent him money. There was Lll6 due. He gave a bill on the 4th February for L 79, with interest at 10 per cent. His Hono\ir pointed out that the interest would not, with the principal, make the total amount. He then took the evidence of the witness as to the sums in which he had received the money. The witness fur her stated in reply to His Honour that he purchased a horse 1 •fro;.i Mr M'Ewan, and that when he bought the animal he did not mention the bill of sale to his creditor. Mr Ward : Will your Honour ask him what arrangement was made as to payment ? His Honour": What arrangement was made? Witness : I was to pay L 5 down at once, and the remainder in instalments.

His Honour : And you did not tell your creditor that you had the bill of sale ? Witness : No. His Honour : Then yon acted a very dishonest part. You had no right to purchase property and render it subject to a bill of sale. It is gross dishonesty. After some remarks from Mr Ward, His Honour said : I am bound to look to the report of the trustee (Mr Bathgate), and he has very properly drawn my attention to this particular point. As you (to the bankrupt) have acted thus, your certificate will be suspended for six weeks. Certificate suspended for six weeks accordingly. Ke Thomas Pbddie. — Mr Wilson appeared in support of the motion for a final order, which, after the \ ankrupt had been briefly examined, was granted. E.B Charles Anderson, Storekeeper, Tuapeka Mouth. — Mr Wilson appeared for the bankrupt ; and Mr W. D. Stewart, on behalf of Messrs Herbert and Co, Mr Fitzgerald, and others to oppose. The bankrupt was examined by Mr Stewart, and stated that he was a miner and storekeeper residing at; Tuapeka Mouth. He commenced business at' Lawrence about five years ago, and then had L 25. Carried on business at Law- ' ' recce about two years, and afterwards , went to Tuapeka Mouth. He kept books I three years ago ; but he was at present ' j only possessed of that which had been handed to Mr Bathgate. Believed, however, there were still one or two books at Tuapeka Mouth. When he went to Tuapeka Mouth he had no more capital than "whan he commenced business at Lawrence. Had a cow, and part of the store was removed. Left Lawrence, and went to Tuapeka Mouth, because he thought he would be able to do more business there. He also had an interest in a claim there. He held a one-half share of the entire claim. He could not tell what was the value of the claim. Was not now carrying on business at Tuapeka Mouth. Edward Vernon, -who was a partner with him in the claim, had ceased to be his mate. In May last witness possessed six head of cattle, a store, and the one halfshare in the claim. He could not tell of what his stock in-trade consisted at that time. In November last Vernon owed him some money on account of the claim. Believed the amount was L 32 10s. He now owed him L 22 os 10^d. (At this stage the evidence given by the witness as to the money owing to and due to Vernon was of a confused nature.) He übimately stated that when he came to a final settlement with Vernon hefound that he owed him about L 35, and that at his request, Vernon lent him L9O. He (wrcnebs) received a bill for L9O, and he got it cashed. He sold the cattle to Vernon on the 6th of November ; he got L7O — part in ca*h and pf-xt in notes. Mr Bnchan disounted the L9O bill. Buchan got ahout L2O due to him, and the remainder of the money was paid by witness to various persona. M'JSicoll also received about L2O. Since December Mrs Ander- 1 son had had the custody of witness's store on behalf of Vernon. He could not give the date when po3sessior was taken' by Vernon. Could not say whether it was in December or January. It was after Christmas.

Mr Stewart : You filed your schedule on the 21st January, aud you say that your mfc has been managing the business for Vernon from a period between Christmas ast and the new year. Can you explain that 1 Witness : I cannot explain it. Yernon took possession in his absence. R? (witness) continued to reside on the premises. Yernon also resided atthe store sometimes, and witness's wife had resided there continuously. Mr Stewart : There is a bill of sale, and by that deed you gave up all interest in the claim to Yernon on the 6th November. Witness : Yes. Mr Stewart : What is the value of the property 1 Witness : I cannot say. Mr Stewart : You were in partnership with Yernon ?

Witness : Yes.

Mr Stewart : Give us a rough estimate of the value of the property which was mortgaged 1 Witness : I cannot do so.

Mr Stewart : At a previous examination you stated that " you told Vernon to take possession ;" you now say that he took possession in your absence. How do you reconcile those two statements ? Witness : When I put him in possession I told him it was the best thing he could have done.

Mr Stewart : Will your wife be paid for attending to the business 1 Witness : 1 expect so. Mr Stewart : When you filed your schedule, you owed Messrs Herbert and Co. over L3OO for gooda supplied. Did you not 7 Witness: Yeß,

Witness : months.

Mr Stewart : Sad Vernon no interest in the Btoi # c prior to November last ? Witness : None whatever. Mr Stewart : Who drew the bill of sale 'I Witness : Mr Richards, of Lawrence. Mr Stewart : Did you pay him ? Witness : No. Mr Stewart : Who did pay him ? Did Vernon do bo ? Witness : I suspect Vernon did. Mr Stewart : You owed M'Nicoll Borne money 1 Witness : Yes. I owed him a large sum of money. I have made no arrangement with him ahout payment. I gave no renewal of a bill of exchange to Clarke. I did not give one the nig it before I came to town. Mr Stewart : Who has been supplying you with money to come to Dunedin ? Witness : I borrowed it. Mr Stewart : From whom 1 Witness : From Mr W. G. Buchan, timber merchant, Tuapeka Mouth. He lent me Ll5. Mr Stewart: When? Witness : On the day that 1 filed my schedule. Mr Stewart : Did he give you the money to enable you to file your schedule ? Witness : He did not. Mr Stewart : Did you not tell him at the time that you were going to file your schedule ? Witness : I told him at the time that I waa going to file my schedule. I said that I was going to town, and that I could not see my way to hold out any longer. 1 then asked him to oblige me with Ll5, and he accordingly let me have it. I suppose the total amount referred to includes the Ll5. Mr Stewart : When was the last washing from the claim ? Witness : In December last. I worked then at intervals, but I do not know how much gold was received. In reply to a remark made by Mr Stewart, His Honour said he had seldom heard a more unsatisfactory examination. Mr Stewart : What profits did you receive from the claim 1 Witness : I received none for 12 months. Mr Stewart : Do you recollect telling Mr Her! ert, in December last, that you expected that the result of the washing at the claim would enable you to pay all liabilities ? Witness : I do not recollect having said so. Mr Stewart : You did not disclose to Mr Herbert this bill of sale 1 Witness : Ido not think so. Mr John Herbert knew about it. Cross-examined by Mr Wilson : There had been a larjje balance due to Mr Herbert ever since he (witness) commenced business. The Messrs Herbert knew that he had the claim. They often Baid " You ! are right enough — you are as comfortable |as a king." Their opinion as to the claim was favourable. The claim was upwards of L2OO in debt. Ed ward Vernon statedthathe was a miner residing at Tuapeka Mouth. Had known the bankrupt for about five years. Had been in partnership with him in a mining claim and water race. He considered the partnership to have been dissolved on the 20th December, 1868. A washing from the claim took place in December. He could not speab as ro the exact amount of gold obtained. It was small, and not sufficient to pay the men. It might have realised LlOO. He did not think the amount realised was so much. About 20oz ; that wa3the accumulation of nearly a year, there not having been a washing up for seven months previous. That paid the men, but he and the bankrupt got nothing — they incurred additional expense. The bankrupt owed witness L 35 in October last. There were debts upon the claim for which he (witness) was liable ; he considered that the bankrupt would be responsible to him for a portion of them. If he had sued the bankrupt in Octo 1 er last for all due, he believed he would have claimed L2OO. The bankrupt owed him nothing except what he was liable foe in the partnership. The L9O was given by bill. His agent, Richards the mining agent, asked him for it. He drew up the bUI of sale. Mr Wilson suggested the probability that the practice of mining agents drawing up bills of sale was too common. His Honour was understood to say that it must be stopped. Witness did not think he would have got the bill of sale unless ha had advanced the L9O. He did not know that the bankrupt was heavily indebted to Messrs Herbert. He knew that he was getting goods from them, and presumed that he was obtaining them on credit. Margaret Anderson, the wife of the bankrupt, stated that she had teen managing the business for Vernon, who would receive the proceeda. She did not tell Mr M'Nicoll that her htißband was going through the Court, but that some of his creditors would be all right.

Neither did she tell Fitzgerald anything to that effect. She believed that M'Nicoll supplied Vernon with goods at the Btore. Cross-examined by Mr Wilson : I am allowed to stay at the store in consideration of the services 1 render. Mr Stewart said he thought that before the bankrupt came to ask for his certificate, he ought to come before the Court with clean hands. It was his opinion that the evidence advanced was simply a story Goncocted between the parties, and that the affair has been arranged for the purpose of defeating creditors. The leirned Counsel then referred to the transactions as between Vernon and the bankrupt, and also to the discrepancies which he contended appeared throughout the whole of their evidence. The only book produced was quite unintelligible, and he trusted that i the Court would not consent to issue the bankrupt a certificate for a considerable time to come. I His Honour said that the bankrupt appeared to be a very illiterate man, and that it wa3 no doubt difficult for such persons to keep their books in a presentable form, or as well as persons residing in the city. Mr Stewart called attention to the fact that in England the practice of keeping books improperly was regarded with great suspicion, and that bankrupts who acted so were treated with severity. The conduct of the bankrupt had, he con'ended, been of the most reprehensible kind, and he trusted that His Honour would signify his dissatisfaction by withholding a certificate of discharge by almost the longest period permitted under the Act. Mr Wilson said he hoped the Court would make some allowance for the illiterateness of he bankrupt, who was a foreigner. The mistake made was in his not hating yiven an account of the business 12 months ago. His Honour said that this was a case which must be regarded with the gravest suspicion. There appeared to have been no pressure on the part of creditors. The bankrupt seemed to have been getting deeper and deeper into debt, and instead of calling a meeting of his creditors, he took sweet counsel with his friend Vernon. There were various discret pancies in the evidence, and they pointed to the conclusion that the affair in which the bankrupt had been engaged was intended to defraud creditors. He (His Honour) would not go so far himself ; if he did, he would certainly cause criminal measures to be taken against the bankrupt. The least he could do was to suspend the bankrupt's certificate for Bis. months. Certificate was suspended for six months accordingly. i Mr Stewart applied for an order under the 145 th clause of the Bankruptcy Act, to sell the stock-in-trade. His Honour replied that the creditors should take steps to set aside the transaction FINAL EXAMINATION" AND DISCHARGE. Re H. M. Walkem.— Mr Wilson appeared in support. In answer to Hia Honour, the bankrupt stated that he gave Mr Heymanson power to realise on the property. His Honour said if anything was realised, it would have to Le handed over to the creditors. Order granted. Re Alexander Begg. — His Honour said it appeared that the bankrupt had met with unavoidable misfortunes. He had been ill for fourteen months, and it was, therefore, Dot to be wondered at that he was now in an unenviable position. Order granted. Re Isaac Cxarke. — Mr Ward, instructed by Mr Stamper, appeared to support the application for a final order. His Honour said that this waa a case similar to the last. The applicant had been unable to work for & period of 16 months. Order granted. Re Henry Collett.— Mr Ward, instructed by Mr Stamper, appeared in support. His Honour (to bankrupt) : How came you not to be able to pay your debts 1 Witness : The debt was contracted when out of employment. His Honour : But you are now employed ? Witness : My present expenses are large. I have a wife and children. My salary is Ll2 a month, and I have to pay houae-rent. In order to pay what I have, my children have been deprived of necessary comforts. His Honour : You get L 3 per week and your board ? Witness : No, your Honour ; I have to keep myself and family out of that sum. His Honour said he did not think he ought immediately to grant the bankrupt his discharge. In fact, it seemed that when persons got out of employment for a short time they apparently got in debt wherever they could get trust, and thsn came to the Court and asked (o have their debts wiped oft That sort of thing would

not do. When a man was in work he ought to endeavour to pay his creditors.

Witness : I have endeavoured to do so, your Honour. I have paid others, and deprived my wife and children of what they ought to have. After some remarks from Mr Bathgate, who said the bankrupt had not shown a disposition to pay creditors, His Honour said he certainly could not consent to deprive the creditors of their jußt rights. (To Witness)— You must arrange to pay something, and unless you do, your creditors will bring pressure to bear upon you. Therefore the sooner you make some arrangement with them the better.

Application suspended for three months. Rb Edward Croker, of Lawrence. — Mr Haggitt applied, on behalf of a creditor, that Edward Croker might be adjudicated a bankrupt. He stated that the act of bankruptcy relied on was the filing of a deed of arrangement by the debtor, and his failure to have declared the complete execution of the deed within four months of the date of filing. He (Mr Haggitt) also applied that as the debtor and most of the creditors resided at Lawrence, the meeting of creditors should be held there.

Adjudication was granted, and a meeting of creditors was fixed to v be held at the Resident Magistrate's Court, Lawrence, on the 14th proximo.