SUPREME COURT.

Evening Star, Volume VIII, Issue 2144, 21 March 1870, Page 2

SUPREME COURT.

IN BANKRUPTCY. This Da^. (Before Mr Justice Ward.) Re William M'Nickle.— A further order herein, directing the deed of arrangement to be filed in Court, and annulling the declaration of iusolvcney, was granted. Re John Britans. —An application to sell certain property was granted. Re Alex, and John Hav. —Mr James Smith moved that the appointment of Mr J. L. Butterworth as trustee be c mfiimed. He said that it would be seen from the minutes of the meeting of creditors, that the whole of the creditors present were in favor of Mr Butterworth’s election, with the exception of Mr Horne, who represented absent creditors, but the Court p had already pronounced that the proofs upon which he claimed to vote should be expunged. Mr Kenyon rose to oppose on behalf of Mr Horne, but it was ruled that he had no locus standi. He then pointed out that proof of debt had not been filed by Mr Butterworth. Mr Smith said that proofs had been presented at the meeting of creditors by Mr Butterworth, but had been retained by Mr Horne. He remarked further that it did not require that the trustee should be a creditor ; consequently proof need not be riled. Mr Macassey, on behalf of the bankrupts, felt it his duty to point out what would be the inevitable result of the application. By sections IX3 and 99, at the first meeting of creditors a trustee and two supervisors nad to be appointed ; the latter of necessity should be different persona from the trustee, it being evidently intended that they should be of a controlling character. Turning to the minutes, it would be found that Mr Butterworth was elected one of the supervisors. He was now at one and the same time trustee and supervisor. Mr Smith remarked that Mr Butterworth had resigned the office of supervisor. Mr Macassey submitted that the only way to get out of the dilemma was to call another meeting of creditors at which the proceedings might be gone over de novo.

Mr Smith replied and in answer to a question by his Honor said that Mr Butterworth had done nothing other than he might do as a creditor. On one occasion Mr Horne came to him and asked him he approvedfof

the advertisement inviting tenders, and on another occasion he went over the stock on the bankrupts’ premises. His Honor would assume that he did so by reason of his offer of supervisor. That was however a question to be decided hereafter. Mr Smith was willing to accept any possible risk in that respect. His Honor said that inasmuch as there had been nothing shown that Mr Butterworth had accepted the office of supervisor, and it was not clearly shown that he had acted as supervisor, and therefore the election as trustee being valid, and that of supervisor being ivoid, the election of trustee would be confirmed. Re John O’Coxnor.— The appointment of trustee in this estate was confirmed. In the following cases the persons mentioned were declared bankrupts, and meetings of creditors fixed for the 28th instant : —Philip Flynn, Robert Jack, and George Clark. The cases of Arthur Hassell, Leonard Whittington, Charles Nicholson, and George Harper were postponed. Re William John Hknninoham. —Application for final discharge. Mr Macassey stated that the Liverpool and London Insurance Company at Sydney had instructed their agent here that the bankrupt’s policy of life insurance has been actually assigned to trustees under a marriage settlement a long time since, and that notice from tho trustees had been received. The company here now declined all negotiations for its surrender. He proposed to call Mr Cook, who executed several mortgages for the bankrupt, and who would state that he interrogated tho bankrupt as to his policy, and that he always told him that the security was unincumbered. The policy had been in the hands of the bankrupt for years past, and he had been dealing with it. In Musson’s case he had rendered himself liable to a criminal prrsecution, because he had obtained money by representing that the security was unencumbered. At this stage of the proceedings the bankrupt entered the court. He was severely interrogated by his Honor, and replied in effect as follows—He had always believed the policy was his own ; it was included in former statements of assets; in the deed of arrangement it was mentioned as security to Mr Masson. When he assigned it to the bank, it was his firm belief it was his own. There had been no attempt at concealment on his part. He had to mention that he bdieved that his wife’s trustees would consent to a surrender sooner than Musson should suffer loss. His Honor said that, in regard to the first ground of objection urged by Mr Macassey, he confessed he should not have delayed the order of discharge on that account. He alluded to the expensive litigation entered into by the bankrupt in respect tq Mr Driver, and the prosecution instituted by him. There was a certain amount of hardship in being prosecuted, and then the prosecution being abandoned. With respect to the action for malicious prosecution, and costs in respect of it, it was very improper for the bankrupt to have commenced without the expectancy of being able to pay costs in case of defeat. But, notwithstanding, he would have made some excuse for the irritation the prosecution necessarily but from what transpired to-day, it appeared that the bankrupt, for some time past, had been systematically procuring money by false pretences —he could use no other term. On the several occasions when required to make statements of his assets, be systematically omitted all mention of the policy, although positively required to do so, Nevertheless, he repeatedly used it to obtain advances of money. The only inference that eould be drawn from that was, that he had systematically used it from time to time, although he knew perfectly well that it was not his own. By doing so, he was sorry to say he had remembered himself liable to a criminal prosecution. He (the Judge) would have to consider whether he should direct a criminal prosecution; but in the meantime his certificate would be suspended for two years. Ee T. and F. A Little.— The application for complete execution of a deed of arrangement, was granted. Ee Alex, and Johx Hav.— This was an applcation for final discharge. After a lengthened argument, the case was adjourned.