SUPREME COURT.

Evening Star, Volume VIII, Issue 2152, 30 March 1870, Page 2

SUPREME COURT.

IN BANKRUPTCY. (Before Mr Justice Ward.) Be Edward O’Donoouue.—- On the application of Mr Kenyon, the petitioner was adjudged a bankrupt, and the first meeting of creditors fixed for Friday week. Be Henry Watson.— On the application of Mr Kenyon, the deed oi arranpement between the bankrupt and his creditors was de< lared to be complete. Be Alex. R. Hay.- This was an application to rescind the order of Court confirming the appointment of Mr J. L. Butteryvorth, on the following grounds Ist, that in law and in fact Mr Butterworth was never elected trustee ; that he accepted the office of supervisor at a full meeting of creditors, and did not resign until the 15th March ; 3rd, that he held the offices of trustee and supervisor at the same time ; 4th, that that since such resignation he had not been appointed trustee. Mr Macassey was beard in support of the application, and Mr Smith against it. After a lengthened argument, his Honor said the ground was conclusive ; and granted the application with costs out of the estate.

Mr Cook made a similar application to remove Mr Butterworth from the trusteeship in John Hay’s estate. Order granted. Mr Kenyon applied for the confirmation of Mr Horne’s election as trustee. Refused. RE WILLIAM J. lIENNINGHAM, Before the termination of the business, his Honor referred to this case as follows :—At the last sitting of the Court I said I would take time to consider whether 1 should direct a criminal prosecution to be instituted against the bankrupt Henningham. Since then 1 have carefnlly considered the case. I have come to the conclusion that I shonid not be doing xpy duty if I allowed so gross a fraud as that shown by the evidence to he passed over without higher pehuke than the mere suspension of the order of discharge. (His Honor then referred at length to the facts of the case, and referring to the reasons given by the bankrupt for not surrendering his policy of life insurance, said)— The account given by the bankrupt is that lie had along believed that this policy had been surrendered to him by his wife’s trustees at the time of his departure from Melbourne. But when it was proposed to surrender it in favor of Musson, it dawned upon him for the first time in many years that this was not the case, through some conversations he had had with his wife. Against this statement must bo set the foregoing—First, that in the deed made in 18G', purporting to convey the wholo of the bankrupt’s property _ to trustees for his creditors, no mention is made of this policy ; and, secondly, in the four schedules filed by him in the past and present bankruptcy proceedings in 1864-9-70, as I before remarked, to the truth ot which the bankrupt solemnly swore, as containing a full list of his property, mortgaged or otherwise—there is not one word of this policy. If the bankrupt believed the policy to bo his own property, he must have believed that ho was swearing falsely when ho swore to the correctness of any list of assets omitting it. His statement that he left the matter to his solicitors was no excuse. Every man is rcsponsblc for what he states on oath. Besides, these lists of assets could only be r prepared from his own instructions, and no solicitor would have omitted from the list any asset of such value as the policy. That the loans before referred to were obtained by the bankrupt on false representations that the policy was his property there can he no doubt, and I can draw no other conclusion from the systematic exclusion of the policy from the above-mentioned list of assets than that the bankrupt knew these representations to be false. Whenever he wanted an advance he stated |tho policy to he his own, hut whenever he was called upon to furnish a list of lus assets he omitted it, and when at last ho was called upon to join in the surrender of his policy for the purpose of paying the creditor to whom he had mortgaged it, he refused to concur, and gave notice to the agent of tho insurance office of the prior assignment in his wife’s favor. He has repeatedly stated during? these proceedings that the policy would he assigned to his creditors, hut no step's in that direction have been taken, although adjournments have taken place with the view of this being done. In tho face of these facts, I cannot say that there is not prlnfa facie evidence ot the loan procured by the bankrupt from Thomas Musson, was obtained by false representations with intent to defraud. 1 had a doubt when this matter was last before me whether this was not a precisely parallel case with that of Rex v. Codrington; but there arc circumstances which show a material difle-

rence between that ease and the present. Besides, Bex v. Codrington has been much doubted, if not overruled; and although hereafter it should be found necessary to reserve a point of law for the Court of Appeal, it is clearly for the interests of the public that so gross a fraud as that now in question should not be passed over without a criminal prosecution. It therefore becomes my duty, though with great ivgret, to direct that a criminal prosecution be instituted against the bankrupt Henningham, for having obtained money under false representations, with intent to defraud. Mr Cook sup osed that it would be the duty of the Crown Prosecutor to conduct the prosecution. His Honor replied that he would direct the necessary steps to be taken.