SUPREME COURT.

Evening Star, Volume VIII, Issue 2162, 11 April 1870, Page 2

SUPREME COURT.

IN BANKRUPTCY. (Before Mr Justice Ward.) Re Walter Bell. —On the motion of Mr Howorth, the appointment of Mr Henry Howorth as trustee was confirmed. Re Geo. Harper, merchant, Oamaru.— Mr Barton was understood to say that he bad communicated with his client by ’letter forwarded to Oamaru, but had received no reply. Mr Cook, who opposed on behalf of Mesfirs Dalgety, Rattray and Co., relied upon the facts as disclosed, which he said were so plain as to require no comment, and Mr Macassey, who opposed on behalf of the Bank of New Zealand, concurred in the observation of Mr Cook.

Mr Barton, for the bankrupt, said ftp had the curious task of meeting arguments which had not been presented. There had been a charge of falsifying his books brought against the bankrupt ; but he submitted there was not a shadow of proof of such a. charge, aud the other charges made against him were on tfie game footing. He would call attention to the fact that Mr Black, Harper’s partner, had been allowed to get oft clear ; no opposition had been made to his discharge. He would ask the Court to bear in mind that the real crime with which Harper had been charged, was having commenced a partnership with considerable debts hanging over him ; and in this respect Black was equally guilty; yet the latter had no imputation cast upon him, and he (Mr Barton) would like the Court to make no difference between them. It would open the door to these kind of crimes if the Bank of New Zealand should be allowed to oppose one man, when it enticed the other into a partnership, and afterwards helped him to secure the stock. The bank should be above that sort of thing. Here they were pariiceps criminis, and should not be allowed to ask that the bankrupt’s certificate should be suspended, or that the pains and penalties of the Act should be imposed on him. He could not see how Messrs Dalgety, Rattray, and Co, claimed on the partnership estate, when the debt was due by Harper alone. . Mr Macas ey pointed out that the learned counsel for the bankrupt had not touched upon the distinct grounds raised, viz., that Harper had.entered into partnership with Black without acquainting him of the previous sale of stock; that he had used the name of the firm by giving bills to Dalgety, Rattray, and Co., whose claim had only reference to himself ; and that he had given a fraudulent preference to certain creditors. After further argument, His Honor gave judgment. He was sorry to have to hold that some portion of the objections raised by counsel for tho Bank of New Zealand and Dalgety, Rattray, and Co. had been sustained, It was clear that when the partnership was entered into, both parties were more or less indebted ; but Black’s account differed widely from that given by Harper. Black stated he was not insolvent, being indebted in the sum of L9OO,

besides L4OO on account of a house building but had in his possession L 60 0; therefore his real indebtedness at the time Would appear to have been between L6OO and L7OO. Harper, according to his own evidence, was indebted in the sura of L 13,500, aganst which were assets to the amount of JL9500 ; leaving a deficit of L 4300. He stated himself that he gave no statement of his affairs to Black ; only telling him of Dalgety, Rattray and Co.’s debt. It was therefore fraud —perhaps not legally punishable—by which he induced Black to enter the partnership. Nob only was he utterly insolvent at the time, but he owed L4ooo' which he had no reasonable expectation of being able to pay. With respect to the other transaction spoken of, that with Mr Burke, there is no doubt it was a disreputable one. It was clear, therefore, that Harper had been insolvent for a very long t me, and had neglected to file his declaration of insolvency, without reasonable excuse for such neglect. He did not think the charge of falsifying books had been proved. It was quite clear, too, that Black had been grievously defrauded. Bankrupt’s certificate was suspended for six months. Re George Young. —An application for adjudication, which was adjourned for a week, subject to the right of the debtor to urge certain objections to it. Re William Wood, of Oamaru.—Adjudication granted. Re D. H. Miller. —An application to declare a deed of arrangement completely executed, which was done. Re Chas. B. Young. —Mr Smith moved that the deed of arrangement between the bankrupt and his creditors be declared null and void so far as the release of the former was concerned, on the grounds that the bankrupt had been guilty of fraud and culpable negligence in preparing a statement of his property, &c., that the deed was not executed by three-fourths in value of the creditors, and that the statement of astets was not correct. Granted, Rk Alex. R. Hay. —This was an adjourned application for bankrupt’s costs, in respect of last Monday’s application, to be paid out of the estate. Affidavits were read ; one by Mr Smith, setting forth that notice of Messrs Bing, Harris, aud Co.’s suit and the object for which it was to be brought [was given to bankrupt’s solicitor, and ®no by Mr Macassey alleging that no notice was given to him as solicitor for the bankrupt, and in such a manner that it could not be considered binding. Mr Smith considered it would be unfair to diminish the sum divisable amongst the creditors one compensate the bankrupt for the course they had taken, which turned out to be mere officiousness.

Mr Maoassey referred to the instructions he had received from creditors to take measures to have the estate taken out of court. His Honor said that Mr Macassey might fairly consider he was acting in the interests of the estate. So many persons were acting in that way in the estate of the unfortunate bankrupts, Jthftt it was difficult for creditors, counsel, or the Court to understand where the real interest lay. There could be no question that there was fair grounds for Mr Macassey believing that he was acting de facto for the largest portion of creditors as well as for the bankrupts. It was therefore unnecessary to consider whether the notice of action amounted to a full notice. Costs allowed. Mr Smith desired to state publicly that there were creditors in the estate who would take notice of this Abstractiveness on the part of the bankrupts ; and when they came up for their discharge, would ask the Court to deal more severely with them than it would have otherwise done. Such action as notice had been given of, was calculated to place the bankrupt in a very unfavorable position on that occasion, and he would suggest tq his learned friend the propriety of considering how far it would interfere with their clients' position. Mr Macassey replied that the bankrupts were quite prepared to justify the whole of their proceedings, especially their proceedings in resisting the action. Although some of their local creditors did not think the course taken was a proper one, most of the influential foreign creditors—the larger body—thought differently; and in deference to the views of the latter, the bankrupts had acted. They also acted on his advice —advice the result 'of conversation—and he was <mite sure be would not be deterred from gmng effect to what had been stated.