SUPREME COURT, WESTLAND DISTRICT.

West Coast Times, Issue 970, 31 October 1868, Page 2

SUPREME COURT, WESTLAND DISTRICT.

DKBTOItS' AND CREDITORS' ACTS. Friday. October 30, 1868. (Before His Honor Judge Clake.) The Court opened at 11 o'clock. RE PHILIP STBRNBKHG. Mr South appeared for the Trustee, and Mr Harvey for Mr B. Marks, a creditor. In this case an order had been obtained, calling on Bemad Marks ami Benjamin Fuerst to attend for examination, and also to shew cause Avhy the particulars of their demand against the estate, should not be disallowed with all costs. Bernard Marks, examined by Mr Harvey— Before I went to Melbourne, I saw the Trustee in this estate, and told him that as I was about to leave for Duneilin and Melbourne, and asked hin if I should be wanted before the 13t'» June, if so 1 would delay my journey. The Trustee said I should not 'be required. Mr South was instructed to say that the Trustee has not the slightest i (-collection of that having laken place. Examined by Mr South— l and my partner are creditors of the insolvent. My partner is a creditor in the credit account but not in money matters. In August or September, 1867, insolvent Avas indebted to me in £64 los 9d ; that sum he paid me. I believe Stcniberg bought the hist parcel of goods from us at the time lie paid the £64. In February, ISGB, the estate Avas indebted to me about £-2-2S or ' £•230 for money paid b}- me on account of the estate. About February, 1868, I swore that at the time I took the bill of sale Sternberg Avas indebted to me for about £124 or £130. I have paid money since the bill of sale was made, the absolute debts Avas £124 or £130, but money which I paid by the sanction and guarantee of the creditors made the sum up to a larger amount. When I swore that the debt Avas £124 or £130 I had not instructions from the creditors in Melbourne to prove on the estate for money I had laid out. Some of those expenses Avere incurred at the time I stated the estate OAved me £124 or £130. I Avas present at a meeting of creditors in Melbourne on Gth December, 1867, and offered to assign Sternberg's bill of sale for the full amount of my claim. I did this at all the meetings, and I stated my claim to be £124 besides expenses which I had incurred in maintaining the estate. I put in a proof of debt on 27th April, 1868. I lent Steinberg £10 10s Ido not know for what purpose. I lent it to him in my oavh place at Ilokiliku. I cannot recollect Avhcther I paid any money for him on the sane day. I paid money for costs to Button and Reid. Sternberg gave them instructions in my presence. Those instructions related to the preparation of the bill of sale. I believe I did not give instructions for the bill of s<ile. Ido not think that I swore I did. Did you swear in this court in February that you gave instructions for that bi'l of sale? Witness— l cannot say that I did. I did not take Steniberg to Button and Reid's, but I went with him. I did not propose to him to go there. Thoso gen» ♦lemon wero not my Bplioitorn nt tU time, '

I often employed, Mr Recs . Dn Is ovember .Ist I lent Stembferg £3 at the Grey. The of £6 10s, on November 26th, Avas lent to Sternber^. Ido not know for what purpose, as I was not here at the time. I know that money was paid ont of my pocket, because when I came home the account was handed to me as money paid on account of the estate. The sum of £97 2-i Gd, dishonored acceptance, under date December 2nd, 1867. That aceeptancc was given for goods supplied. I was in Melbourne on that day. Under December 18th there .is casli lent £10, which was for money paid out of my own pocket on account of the estate. That item will not appear in any of my books; . You will not find any entries for anything but goods. At this stage of the proceedings the Court adjourned until 2 p.m. On the Court resuming, the examination of Bernard Marks was proceeded with. "Witness, examined by Mr South.— The item £10, under date January 6, 1868, was for bill of sale from Sternberg to me. I heard that the sequestration took place on November 13, 1867. The creditors in .Melbourne authorised me to withdraw the estate from the court and to wind it up myself, and it was by their authority I incurred these expences. I obtained the bill of sale solely to protect the creditors. I did so in order to frustrate Sternberg's design to defraud me and the rest of his creditors, my friends. I did Hot communicate with the Hokitika creditor, because he might have swept nearly the whole away, leaving nothing for niy friends in Melbourne. I incurred the expenses on hi 1 of sale on the authority of the creditors. I believe the expenses we're paid at the time they were incurred. My expenses to Charleston and part of them to Greymouth, were included in the sums charged as expenses on bill of sale. The amount charged as Avages was, I believe, paid to Emanuel Mark.?. I paid Mr O'Loughlin £12 10s on account of the estate, for services rendered for the purpose of protecting the estate. I think I have Mr O'Loughlin's bill at home. The sum of £28, charged as amount p.iid to the.Sßqueatrator, I paid in pursuance of ah order of Court, but as I had fto't previously received that money, I think I have a right to cla ; m on the estate. When I arrived in Melbourne I offered to deposit £1000 in the hands of two disinterested parties to abide their award whether I had acted rightly in endeavoring to secure the estate, and after the creditors had held two or three meetings they agreed to submit the question to the arbitration of their own solicitor, Mr Attenborpugh, and he gave an award in my favor. In Mnrtu, 1868, a power of attorney, given m r e by the creditors* was revoked by them. (Power of attorney and revocation put in.) If the Avhole of this proof is disallowed I shall not lose a shilling, as I have been indemnified. By Mr Harvey — The creditors in Melbourne handed me a power of attorney on 21st December, 1867. (Power of attorney put in and read.) It gave full power to Bernard Marks to take the estate out of \ the hands of the Sequestrator, should he deem it fit, and guaranteeing all expenses. Mr South— That power of attorney ih revoked^ ... Mr 1-iorvey — Yes. But it gave Mr j Marks power to take the estate out of the hands of the Sequestrator. I put that in as an authority from the creditors to Mr Marks to incur certain expenses. Examination continued— Acting under that power of attorney, I paid certain money for the benefit of the estate. At the meeting of creditors on the 20th of December, the creditors begged of me to take the estate out of the insolvent court, as its management was so expensive. I paid no morey after I received the revocation of the power of attorney, except for debts I incurred before. 1 have" lately been in Melbourne, and when there I convened a meeting of creditors. At that meeting it was agreed by the creditors to leave the matter to the arbitration of Mr Attcuborough, their solicitor. Mr South objected to this evidence as being irrelevant. His Honor sustained the objection. Examination continued — That document was handed to me by the creditors. Document (Attcnborongh's award) put it. By Mr South — I am not aware that creditors to the amount of £980 los that have not agreed to that document. This is the first time I have heard Mr C. Louisson's name mentioned as a creditor of the estate k By His Honor — I was not aware of the declaration of insolvency at the meeting of the 6th December, 1867. I was not here when the declaration was filed, but as soon as I came hack from Melbourne, I communicated witli the sequcstrator. On the 2 1 ht December, when I received the power of attorney, I knew that there was a declaration of insolvency. Mr Harvey said that he had no objection to all the items incurred since the sequestration being struck out of the proof. Mr South submitted that the expenses connected with the bill of sale ought not to be borne by the estate. Mr Harvey — Then I will withdraw my admission. • Edward Hardcastle, the trustee, examined by Mr Harvey — Some considerable time after the sequestration, Mr Marks came to me and made certain statements. I do not recollect you coming to mo, and asking me to send up a man to Charleston to take possession of a portion of Sternberg's estate. Ido not recollect refusing to do so unless you paid the expenses. T do not deny that I did not do so. Ido recollect jour telling me that Mr Marks was going to Charleston. Ido not recollect you informing me about the bill of sale ; but I do recollect your saying saying something about the meeting of the creditors in Melbourne. I did not communicate with the creditors in Melbourne as to their wishes in winding up the estate. I did not take the trouble to inquire of the Melbourne creditors their opinion respecting Mr Marks. By Mr South— l first heard of the bill of sale from Sternberg. It was on the 22ud January. By Mr Harvey— lt "was on the 11th January that I and Mr Marks went to Mr Hardcastle. Witness — Previously to that I had made inquiry and found that there was a bill of sale to Mr Marks over the whole estate, and I did not, therefore, send a man to Charleston. It was not until after Sternberg had been to me that Marks made any offer to me to give up the estate. I did not any of the estate from Mr Marks until after the first day of the examination. I demanded the estate from Mr Marks, but he refused to give it up unless I handed to. him the bill of exchange which Sternberg had han.led to me. By Mr Harvey — Mr Marks did not on the 11th January in your presence oficr to surrender the estate to me. I will not swear that you did not do so. Mr South addressed the court in support of the disallowance of the claim. His Honor eaid that he believed Mr M(irk» was entitled to £132 9ft 4cl, and the

impression on his (the Judge's) mind Avas that Mr Marks had been more out of pocket than that through the injudicious manner in which he ha-* acted. He thought Mr Marks has acted very fairly towards the creditors in that respect, and no doubt he has been a sufferer through acting injudiciously. The court adjourned sine die.