SUPRME COURT.

Evening Star, Volume VII, Issue 1941, 26 July 1869, Page 2

SUPRME COURT.

IN BANKRUPTCY. Tms Day. (Before His Honor Mr Justice Ward.) FINAL DISCHAHO i s. There being no opposition in the following cases the usual order of discharge w-s granted : Kobe it Heaney, and Thomas White. FINAL EXAMINATIONS. In each of the following cases the applications were postponed for a week Mary Clements, John M'Cubbin, Charles Townsend, and Robert Love. He. James Thompson.—This bankrupt was opposed by Mr Macassey, on behalf of creditors ; Mr Harris appeared for him In answer to Mr Macassey, he said that he filed Ins declaration of insolvency on the 28tb of May, but he h-‘d been in insolvent circumstances for many months previous. On the 15th May, he handed over to his brother-in-law, Mr Pearson, two cows and two calves, which ho had had in his possession—one cow and a calf for about two years, and the other cow and calf for nearly eighteen months They were purchased with money supplied to him by his brother-in-law, to whom they belonged. Ho was allowed to keep them, ami r -ceive their milk for attending to them. He dealt with a Mr Dewes. a storekeeper at Waitahuna. He never said to him or to his wife, “I have two cows, and if you are about to distress me, 1 will sell one and live on the money.” On the loth of May, he went to Dewes’, and asked him to meet Mr Pearson and a lawyer at Waitahuna, in order that some arrangement might he come to as to his debt. Dewes refused, saying that he had not pushed him, and did not intend to do so. He (bankrupt) received L 8 from his sister, to enable him to come to town to tile his declaration. He had a hut and garden, which he sold for LB, a portion of which went to pay a debt, and the remainder to the support of his family. He knew a Mr Higgins, who was manager for Messrs Smith and Hibbard, at Waitahuna. Higgins on one occasion pr- ss l d for payment of his account, and he told him that he had some cows belonging to his brother-in-law, by whom he was instructed to sell them. He had a steer, and if Higgins would buy it, h 1 would be enabled to give him some money. Higgins refused to buy the steer. He handed over the cows to Pearson when he was about to become insolvent. If he had not done so, he had no doubt but that they would have remained in his nossession.

In answer to Mr Harris, the bankrupt said that he had dealings with Hibbard and Co. extending over four years. He had purchased of them to the extent of 1-200, which he had paid off with the exception of bS. He had had dealings the Dewes to the extent of LBO. He attributed his insolvency to ill success in mining. During the last two years his earnings had averaged about LI per week. At the time he tiled hia schedule his debts amounted to LSO. MrMacassoy applied, under the 145 th section. for an order directing the sale of the cattle, on the ground that they were at the order and disposition of the b nkrupt when he committed au act of bankruptcy. H'submitted that a prima facie cas had been made, shaving thar the cattle virtually belonged to the bankrupt. Without the order the trustee would not be able to try the juestion as to the ownership of the cattle ; if the order was granted, it rested with the trustee whether he should proceed, because if he did so, he rcuderself amenable for costs.

The Judge admitted that the ease was a

most suspicious one ; and was understood to say, that he did not think the bankrupt had possession of the cattle when he committed an act of bankruptcy. The first act of bankruptcy committed by him was clearly when he applic i to be adjudicated a bankrupt. Mr Macassey submitted that under sccthm 27 of the first branch of the Act. a fraudulent transfer was an act of bankruptcy. In this case, the passing over of the cattle by the bankrupt" to his brother-in-law was clearly a fraudulent transfer in point of law. The Judge said there could bo no doubt about it, if he too'-; for granted that they weie the b mkrupt’s pr perty Mr Macas ey contend d that it was only necessary to estab-ish a prhna fade case. The presumpiion was, be submitted, that the c ittle had been tr usferred by the bankrupt for the purpose of defeating and delaying his cr ditors. He did not say that this had been conclusively shown ; without the order the question could not be tried, an i by granting the order the interests of any party would not be injuriously affected. The Judge said that all the evidence with reference to the cattle was given by the bankrupt himself, and he swore positively that they were not his. Under the circumstauc. s he (the Judge) could not take it for granted that they w>-rc.

Mr Macassey then submitted that the bankrupt's order of discharge should be suspended, because be had continued to incur debts, Avhen he knew he was in an insolvent position. As to the statements made by him in the witness box, be (Mr Macassey) would not refer to them, as they tvould form the subject of other proceedings.

Mr Harris said that it was unnecessary that he six-mid address the Court upon the first point after his Honor’s expression of opinion. Mr Macass* y’s other contention amounted to this—that the bankrupt’s certificate should be suspended because he had been unable to pay 20s in the pound at a moment’s notice. The bankrupt’s position had been that of many hundreds in the province, who during the last four or five years had carried on the very precarious occupation of mining. For many months they were obliged to contract debts —he might almost say they were encouraged to contract debts —in the hope of being able to pay them off with the proceeds of their subsequent work. In this particular case the bankrupt during two years had only been earning on the average LI a week, with which he had to support a wife and family. No charge of extravagance bad been brought against him, nor was it said that he had been of intemperate habits, or in any way dishonest, save that he had been unable to pay some balances of account. Mr Harris referred to the fact that the bankrupt had reduced the accounts of Messrs Smith and Hibbard and Dewes, in the one case from LI 7 to L 8 during a short time. He submitted that the case was one of misfortune entirely, and did not merit any lengthened suspension of the order of discharge. The Judge said that he was unable to grant the order applied for under the 145 th section, because it had not been proved that the bankrupt had committed an act of bankruptcy befo e he transferred tbe ea tie to his brother-in-law ; had it been proved that ho had clone so, he would assuredly have granted the order. He thought that the bankrupt should not have incurred such large liabilities situated as he was, and suspended his order for two months. lie Thomas Davidson. —The Kith July was fixed for the bankrupt’s final examination. The Court then adjourned.