SUPREME COURT.

Otago Witness, Issue 2240, 4 February 1897, Page 20

SUPREME COURT.

IN BANKRUPTCY. Monday, February 1. (Before his Honor Mr Justice Willinms.) EE WILLIAM HALL, OF CLARKSVILLE, STOCKDEALER. Motion for order of di«charge. My Thornton appeared for the debtor. His ilouor remarked that according to the assignee's report the assets were not sufficient to pay xhe preferential claims for wages. Mr (iraham said that that was so, but he uude--stood that tho credilo-s who were not paid had i sii.ee consente \ to the present application. i Mr Thornton said that tnpre was only one such ; creditor, a Mr Camerou, who 'had told him (Mr j Thornton) that he was willing for the man to get I his discharge, j His Honor said he thought there should be ! something in writing. I Mr Thornton observed that he had sent the ! consent for signature, but it bad not been •returned. j His Honor said the matter had better sand over. RE BENJAMIN BERN, HOTELKEEPER. Motion for final order of discharge. Mr Solomon, who appeared in support of the application, said that this matter had stood on the j list for a long time. Bern was prosecuted for I | breaches of the bankruptcy law, found guilty, j and sentenced to six months' imprisonment;. At i I the last bankruptcy sitting he (Mr ■ olomon) asked j I that the application bs disposed of, and hia j I Honor had .said tb<<t it would not be right to do so withomt notice being given to all the creditors. [ That noticft had since been given, and he rather expected that Mr M'F<irlan», who had opposed, would be present. He bad probably forgotten to attend, but he had 3»id that t' c supervisors would not object to the granting of an order. He (Mr Solomon) did not suppose that an immediate order would be granted, but he submitted that the oa*e was cot one in which the discharge would be refuse^. Bankrupt had a family to sun1 port, he had suffeied punishment for hiß crime, I and he (l>arned counsel) submitted that it was desirable in the general interest that there should be some finality to the suspension. Bern's was ! not a very bad casp. The sole charge of fraud was that immediately before or after his bankruptcy a case of brandy was removed from his premises. Beyond this, of course, he had been very lax in the keeping of book?. It must be acknowledged that he had been guilty of breaches of the Bankruptcy Act, but he (Mr Solomon) submitted that it was only grave cases indeed that would be i visitor! with an absolute refusal of discharge, - '

His Honor anked whether there was anything to add to tho assignee's report. Mr Graham replied that there was, but ha might remark that the case of brandy referred to was only one item out of several charges. His Honor : The case was v btwl one, but the debtor has been in court since the 14th November, 3894, aud he has also suffered six months imprisonment for an offence under the Bankruptcy .Act. Under these circumstanced, and iv the absence of opposition on the part of the creditors. I think I am justified in fixing a term at the end of which the bankrupt may be discharged. The order of discharge therefore will not be absolutely refused, but.it will bo suspended for a further term of two years. RK JAMKS HENRY HOLMES KKRIt, GENTI^MAN. Motion for rlual older of discbarge. Mr Milne appeared in support of the application, aad«Mr D. D. Macdonald to oppore. Mr Milne said tho bankrupt had already passed hia public cxamiuatiou, which was declared closed, but there was one creditor present to oppose. Mr Macdonald Bnid that he repreiented tho opposing creditor. The grounds of the opposition were : In* the first place it was phowu by the cvi- > dence that, flic bankrupt wa3 not in trade. In the next place it was shown that he kept no books— no books at all from which, his transactions could bo made out. Further, he had no assets, and this was tho second time of filing. Tho prior bankruptcy was about two years earlier. Then the evidence also showed that although he absconded from DunediD, being in debt £147, he got £60 from his mother and went to Australia for a trip, and stayed at Menzies's and Scott's and other first-class hotels, and enjoyed himself with the money, and paid nothing to his creditors a fall. The evidence also showed that up to the time of his examination he wa9 stayingat Watson's andhad been staying there for a. considerable period. Then there was a creditor named Smeatonwho opposed, and said that bankrupt had got money from him under false pretence*, and i when the public examination came on the debtor | admitted that he had " squared" Smeaton a few days previously. Those wero the grounds" on which he (Mr Macdonald) opposed. Debtor said that he was forced in f o the Bankruptcy Court by ] Mr Tilburn, but the debtor had no assets, and if brought to the lower court, aud the possession of means had not been shown, no order would have been made against him. He (Mr Macdonald) did not know whether Kerr had been earning money J sincd he filed in March, 1896. I Mr Milne, ia reply, said that the list of debts j was a small one. The debt to Tilbutn was due on ' the endorsement of a promissory note given by Piercy, formerly of the Grand Hotel, aud originally issued for a debt due to Itoberb Wilson and Co. The other debts were small ones. The debt due to Smeaton was inciured on account of a ! personal friend, ftud there was no intention of : avoiding it, and, as stated, it bad been arranged. 1 As to the Rbxenco of books, Mr Macdonald ad« '■ mitted that debtor was not a trader. He had I had only two transactions within the period covered by the bankruptcy, and both had resulted in loss. As to the trip, ho had received money for the f xpre?s purpose of going away to see whether he could not get something to do in the w«y of agencies, but he was unsuccessful. His Honor said the debtor seemed to have been bankrupt before. Mr Milne said that was so, and hi* Honor would rt-member that the bankruptcy had been ! practically caused by a fire. The debtor was then carrying on biiiioeaa at Rosi-neath. There had been opposition to iris diachargo on that occasion, and tho discharge was granted unconditionally. At that time the bankruptcy had been oaused by misfortune, and that view had been taken by his Honor when the discharge was opposed. The debtor had previously been iv business iv Dunedin, and had paid a considerable dividend. Mr Graham : The dividend was fis 2J«i. Mr Milne said that the' debtor had not been able to get on his feet since his'previous bankruptcy, but <<Jte prwure of th"« present opposing I creditor was tho reason of his now being in th« ' Bankruptcy Court. His Honor said : The case is an unsatisfactory one. '1 here are no asset*, and the bankrupt kept no tccountp. Thera was a piibllc examination of the bankrupt-, and that did not disclose a'satisfactory state of affair*. It fe«jn« to me the case I is one where, if the bankrupt wants an order of 1 discharge, ho ought to manage to pay something to the creditors or make some offer. Tho order j of discharge will be refused at present, but, of course, is will be open for the bankrupt at any future time to apply afresh for an order. Mr Milne : Perhaps your Honor will allow th« ca«e to stand down for the next bankruptcy day. His Honor : Very well. K.E JOHN RYLTCV EX PARTK WILLIAM QUIN. Motion for leave to proceed for recovery of debt, and to make process available notwithstanding bankruptcy. Mr Solomon, instructed by Messrs Perry «nd Perry, of Timaru, applied that the court wonld give leave for the ittsue of a writ to try an action between one Quin and Ryley in respect to a sale of wheat. Quin claimed on Rylsy's estate, which claim the assignee nr«t disallowed, but after' wards admitted proof of, as the amount involved was less than tho costs of an action would be, but before the notice of an allowance was received matter* had been put in train for moving the court;, wherefore costs were askod against the assignee and Rylev's estat*. Mr Haggitt appeared for the assignee, and Mr Sim for Ryley. Mr Sim said that, in rsspect to the merits, Ryley never disputed that under the agreement Quin should bn allowed to retain a quantity of seed wheat, but \t had transpired that Quin, instead of retaining the wheat for that purpose, had sold a quantity of it. Mr Solomon said that the facts as represented to him bore a very different complexion. After lejfal argument, His Hoaor gave judgment as follows-:— lf the summons taVen out had been a ' simple appeal from the ' rejection of the proof by the assignee there might have been some groundsperbaps for asking that the costjs of the summons should be allowed out of tho estate. The claim, however, put forward in the summons is, primarily, tbat Quin should be allowed to bring jan action against Riley. The request for , the [ admission of the proof is a us ere alternative, and ; is entirely subsidiary to what appears on the face I of th j . summons to be the main object sought to j be attained by it. In such circumstances, if ■ immediatelyafter the receipt of the summons j the assignee a«seuta to admit the proof. I think ; that the creditor ought to be content, and that he \ ha* no right to ask for cost* in addition. There is also this further leason : the summons does not ask for costs. It may be that tbat circumstance would net deprive the court of jurisdiction to • give eo^s ; but the summons when it was pre- [ bented to the assignee did not ask for costs, out merely that the proof should be admitted. Now, the assignee in rejecting the proof said that bis rea'on for rejecting it was that there was a counter claim which Hyley's estate had against Quin. After he had received the summons the assignee wrote and admitted the claim and gave his reason for admitting it — that the total amount involved would not in all probability amount to the cost of contesting the matter. The assignee therefore, in I admitting the claim, gave notice to the other side ' that he was really eompromisin{ftue matter. >The i summons, as I Baid, did not ask for costs, and the ; assignee, in compromising the matter as ho did, would naturally assume that he was not asked to paytlum. If the summons had asked for costs it is reasonable to suppose that the assignee would have framed his answer to the proof in a somewhat different manner, and would practically bavc said, " I admit the proof, but I wont admit costs." Ido not think, therefore, thero is any ground for Mr Quin now coming and asking for the costs of the summons, 'ihe only question now between himse'f and the assignee i 8 whether tha assignee Bhould pay the costs of the summons, and the assignee has been specially br&ugbt here in order that the court may decide whether he .should or sbould not; pay. If the court now decide, as it doe 3 decide, that the assignee ought not to pay, then it seems to me the assignee is, according to the ordinary rule, entitled to the coats of the present proceedings as against Mr Quin ; and so, of course, is the debtor entitled to the costs of the present proceedings as against Mr Quin. The summons will be dismissed, Mr Quin paying two guineas costs to tbo official aßsigu.ee aud to the bankrupt. Tho public examination of the debtor i« re« ported elsewhero in this issufe