The courts.

Otago Witness, Issue 1342, 18 August 1877, Page 17

The courts.

SUPREME COURT.--IN BANK-

RUPTCY.

Monday, 13th .August. r / ' ! (Before His Honour Mr justice "v^ilMams.)^" | - BE JOSEPH MACKAT., '.' t ' '," "^ , : Motion for discbarge. Mr Stewart appeared for the banlcrupt, and Mr Haggitt'to' oppose on' .behalf of the National Bant Mr F. X. ! Ghap-' man watched the proceedings on behalf of Mr John Mackay. - . '[",_,.,, ' ; The fallowing witnesses were called by Mr Haggitt:— Joseph Mackay : The papers now produced' relate to an action by the National Bank' of 1 New Zealand against - rayselft In -th^fr action, the Bank seught to .recover.- from' me ,L 3458 7s6d. That action was commenced r qn { July ,15th, 1876. t .defended it,', anil it was' 'ready' for trial, but on the 31st *of* •October, ■ 1876, I confessed- judgment l "-!' -did not know when I put in my pleas' that I had no defence to., ths action. . The, document now produced relates to. another, ' action brought against me by the same plaintiffs.'. . It is for. L3OB, and represents the amount of ai' i accommodation bill which I got from"Greorge , Wilson, at the request of the Bank. --I put iii a defence to that -action, but in it also; 'judgment w&s conTessed, and the bankers got money.^ The bill did nr>t represent "a busifness transaction between myself 'and Mr Wil- [ son. There was another action brought by the -Bank against me on a bill for L 135 of .Capstiolr, ■Duthie, and Co. I made an affidavit upon which I got leave to defend. • The Bank got the amount of Wilson's bill .through my : brother, who became bondsman' for the amount: : , I have not satisfied the judgment the Bank got f against me for L 300 0; they have got all my "property, which they have realised on, and got [more than &11 my other creditors together. Another writ was served on me: for L 1200 .; The Bank wanted their money in twelve days instead of ihirty days; had they said, thirty, they might have got it. The Bank began to' press me a r short time after I 'got : into'' their ■ debt; and continued to do so ever 'since. • The .document produced isja statement of my, affairs: given; to the Bank in ; Ma.rch, 1876. ,, It i^; a, correct statement. I believe, I had all the properties stated therein at the-tiine. * Indisposed' of them between the' time' of and' .the Bank ' obtaining ' judgment. 7 ' 'I' swear ' the' object of disposing of. the properties vvras. not, the preventing of 'the Bank obtaining their, money. .1 went round the Colony ( ,iu May. ancl June* X w ( e"nt in^ my. "own, name', , ,bu s t I "received and- Sent ' telegrainß' i 'from. Wellington' id the name of James -Smith. i I could not. hide myself. I lived. with frienda all the. time, and was welcomed everywhere by everybody from r^ie Premjer^downwarys. . I did m ot.h ave t;he telegrams sent jn 'another ■riatneln order to conceal my wh'ereaboutß'frdni f tii'e"Banki' ! 'l' did' not send a telflgram -under the name of James Smith, to have all my debts collected to prevent the Bank getting, paid.; I had no legal writ in my bands when I disposed pf any "properties.,' -Isold to Walls' arid'my 1 brother my book .debts.' ! Th^'Bank'soia'aiy; stationery; stock. • Every book' I' had • is'in the ' bailiffs 'inventory, including my oldialmanacs. which. l did not sell last year. The ,Bank had a bill/of sale over my. t books. I sold Wells and Mackay, my. book debts, amounting "to r L4OOO . to LSOOO, ,the almanac LIOOO, and ' the Bruce ' Herald; valued at L 2000.' This was gold for L 477 14s lOd, and the consideration -that; my debts, amounting to about L 450, be paid.- The almanac is a good property if lam i* iti I have carried it on for 16 years, and must be a fool if I had not made something of it:; ■ I was under the ,impre!3sidn' when I 'made this sale that I was'doing the best for the general body, of my, creditors,', but fop my wages-men in particular, j, I s sold, al^o, jiny. . furniture r and ,150- tons of .coal in warehouse for' L 330 .. My' furniture .was worth about' L 30 6; the coal was worth about 14s per'ton.' ■ There were also some groceries in M'Leod's stores, 1 worth about LSO, included in the sale.- .,1 think.: this wjas a. good .sale for.my, creditors., k IjSpid the, coalpit ta jMj Finlay Mackaj 1 ," had a ' mortgage over it for LSOO. ,The pit was valued 1 by meat L4OOO. In my statement to tho Bank ' I said the profit would give L 250 a year. i'». The agreement wan prepared by; my instructions. ■ The stamp duty was paid by me. , - This jsvas a , bona fi4e t transaction. • I filed,' a declaration., of' insolvency in the District Court Tbkomairiro bec'ause lresided there, andnot'frolui'any diai respect to this Court. I had about ft dozen' creditors at that" timel " I iireviously'swore that I had no othpr creditor than the' Bank. I subsequently filed a list of about forty. These were all bona fide creditors: Xgave my debts when I filed at L 3416 8a 6dj. assets, L2l 14s. In; March I was worth about L2S,O(H>; in Ocj tpber I had made away with everything, so as to reduce my assets to L 2 1155. I had settled 1 with my creditors as far as I could except the Bank. I paid them out of the proceeds of the sale of property to Abbot. Thewgot all the same, and gaye receipts in full I, paid'7s in the LI in Augustus month' before the Bank got J ; judgment. 'Mr Heath told ' me the" Bank' get' my property,' and /; l "woulid Jbe a 'ruined man. I expected to beabletopay all my creditors in full' when the Bankbeganto press me. I was in a better position than I nadever been. Had I been allowed to realise my property, I could have paid aU my crecli-' tors; the Bank included. ' "'' ' ' „.' I W. B. Heath, formerly manager of the Tokoinairiro branch j deposed that he distinctly gave Mr Mackay to understand that the Bank was in earnest' in 1 pressing him. The list of, Mr Mackay's property was furnished to him in order that the Bank might know what property the bankrupt had. To Mr Stewart : The Bank waa desirous of • getting all -the security which it could. Had the Bank received the securities which they, demanded, it would have been, prepared to carry on the account as it had been for some time. The Bank looked upon Mr Mackay's estimate of the value of hts property as being imaginary. He had bean told by Mr Mackay that he had been led into speculations by pre , v'ious Bank manager at Tokomairiro. , „ \ Mr.Mackay, examined by Mr Stewart, deI nosed: When I sold the rest of my 'property^ I considered that I had sufficient left to secure t|ie Bank. I always consulted the Bank in ; all my transactions. Had the Bank., extended some further consideration to me, I could .have tided over my jdifficultiea. All my creditors the Bank and Mr Sullivan," ) :'.»/. i'-y _ f , ; I £b Mr Haggitt: J h»ve riot promiaedto pay. my other creditors in full. I. have not madesuoh a promise, to Bower Bros, and Salomon,

i i John Mackay^ I am Joseph Mackay's > brother. I carry?on the business of the Bruce ( Herald. I had not been employed nt the Bruce ■ Herald for threevears r previously to its assign- ■ fcent toirfe 'and WelR > ' I became aware of its assignment between~the lsl~and 14th of Jnly. The. negotiations for »the.- sale were conducted ,by letters and telegrams. , ± J produced these be- , fore the trustee, I hold my brother's f arniture M'security:f6r''Vbill i bf'L3oß. In regard to the goodwill 5 of ! the r Bruce "Herald "atd the book [debts/ arrangements were i made by-Mr-Wells • Mackay whereby wejvere >to pay, the men their, wages, and take over the. .property. . i and .Wells took possession of tho 'bod^c debts and of the* paper with the intentionof Mr" 1 'Joseph- <Mackay (i out -of itJoseph Matekay isnow:editor of theipaper, and Receives 14 a-week ,aa a salary., ... Mx .W,e}ls is ■ now out, of the concern. I gave him over L2OO , for his sharie. He is now book-Tceeper of the ' paper. * ', ', " Jj- •' - - s > H Tb ! 'Mr' Stewart': When we purchased the -> 'copy-right:of,the paper, the Bank was in pos- i ! session' 'of the, plant;' and would not allow it to „ jbe_used._ I have had the, paper .for twelve ; months, and am out of "pocket by it. Mr - t Wells's l engagement 1 extends ! for six ' months. ' i This 'concluded the evidence. ■ • Mr Haggitt, in r addressing the Court, said .. r that if "ever, there j was a .case in which the discharge of ; a banknnot. should be postponed for" ; t,he;lpngest perioi- possible,' under the Act, this was jOne. l In suppbri^bf this, he might only re- , fer to 1 the evidence Mackay had himself given."' He thenj proceeded to review>the cir- . '(jumbtanpea of ; the case. Mackay found rthat he, was unable, to pay, his debts, heßhould ( have at once filed his declaration of "bankruptcy. - There could be no case Bavtiuring more strongly of 'fraud th'anxhe present one.- 'No Judge could ' believe that the transactions >to which thewit- ; ness bad deposed, were bdna. fide .ones. I Mr .Stewart .then addressed the Court, on behalf of the'deb'tori' He submitted "that the * policy of the Act of 1876 was that'the debtor ' should be discharged If he had given up all his ' property, and if he had not been distinctly convicted. s , ; He commented strongly on the action of the Bank. seeking to deprive Mr Mackay _ of 'the meains of supporting himself and family for one or two years, after having got ' possession' of every sixpence which he had.

Hib' Honour, in giving judgment, referred to the leading points of the- case, and the arguments' put forth by the learned counselWbotb. sides; 'and said' that' iti some cases the Court inight l pToperlyreview ; the'decision of the creditors, especially in cases where the interest of ; the/; dissent jug. creditor, ;wculd ,be prejudiced. , He, f *howeyer fc thought ihe cas^did not call for , yery Hevefe.sseritenceV"arid concluded by'suageriding'thtf bankrupt's' discharge J for Bix ' months.' " ' | !'''-"'(' 1 ;. 1.,'1 „' -, . , ;