SUPREME COURT.

Evening Star, Volume IX, Issue 2751, 11 December 1871, Page 2

SUPREME COURT.

[N BANKRUPTCY. This Day. (Before His Honor Mr Justice Chapman.) On the motion of Mr M'Keay, Alex. Carr and Henry France wore adjudged bank-, rupts. meetings of creditors to be held on the 19th inst, in France’s case at Oamaru. Re Isaac Buckley.—This bankrupt’s discharge was suspended for two mouths. Ro Alex. M. Miller and H. W. Nixon. The bankrupt Nixon alone surrendered himself for examination ; the other bankrupt has left the Colony. The bankrupt Nixon, in answer to Mr. Haggitt, said that he and Miller commenced business in Dunedin as tea and spirit merchants. They called themselves general merchants. They commenced business iu April, 1871, and filed their declaration of insolvency in October last. Bankrupt knew Miller previously in England ; he knew his father, who was in business iu Melbourne, where he bad acted as his agent. They did not come here together. Witness came here from England on business, with an intention of joining Miller, They left London for Sydney together. At Sydney they had a misunderstanding, and then abandoned the idea of joining him. Ultimately he came to Dunedin and joined him. Witness knew more about the tea than the wine trade. When they commenced business, Miller bad a capital of LI3O, and bankrupt of L4O. Miller expected to receive LSOO from bis friends, and bankrupt was now entitled by the will of his mother to an eighth share in LI2OO. Bankrupt went on to detail the firms’s transactions with Messrs Neil and Co., Bowden and Co., FaJck and Co., and others. Miller had left the Colony, taking with him he believed, LBO in money. Bankrupt never kept the books, which were made up by Miller, who had the banking account in his own name. Bankrupt could not account for their deficiency of L3OO. Mr Haggitt contended that the bankrupt was amenable to an indictment for misdemeanor on several grounds. The trustee had been induced to believe by a very transparent dodge that the bankrupt, who had left the country, was guilty of everything ; while Nixon was innocent. Ho hoped the Court would not be so deceived The bankrupt’s conduct, from his own examination, had been nothing less than a deliberate swindle. In the first place they commenced business with a joint capital of Ll7O. His Honor : By the trustee’s report of L 155. Mr Haggitt: It has to-day increased to LI7O—LI3O of Miller’s, and L4O of Nixon’s. The business of general merchants, especially of wine merchants, required a large amount of capital to be embarked in it. His Honor : I don’t know that. Mr Haggitt: It is supposed that persons who sta t such a business have sufficient ; while the bankrupts’ capital was hardly sufficient to start a retail grocery business. The bankrupts were not young, unexperienced men ; the one had been in business as a broker and commission agent, and the other (Miller) had been in business with his father as wine merchant in Melbourne. His Honor ; Under what sub-sections do you move ? Mr Haggitt ; Under section 302; that Miller had appropriated money (L 80), received as the proceeds of the sale of goods for which the parties had not accounted ; consequently neither tfie trustees nor the creditors had been able to prevent Miller’s escape with the money. They were also guilty of misdemeanor, in that they had sold goods in a way otherwise than ordinary, at a time when they were in an insolvent position. His Honor observed that be could not see how Miller managed to get off with so little money. There must be some mousy somewhere. There was L3OO unaccounted for ; and only LI 0 worth of bad debts. Mr M 'Keay (who appeared for the bankrupts) : But they had to live for six months. His Honor ; I have deducted all that. From the bankrupt’s own statement, each drew L2 a-wcek, that is L 4 for twenty six weeks, LlO4 ; rent of office for six months, say L3O ; and I have put down LSO for clothes and other expenses. Reckon it as highly as you ca i, you cannot make it more than LISO ; so that it leaves L 309 wholly unaccounted for. If they had said they had sold their goods at a loss —but the schedule shows no losses, and the deficiency is not at all accounted for. Mr M'Keay : Mention has been made of goods sold at a loss. His Honor : Only in one case. With, this statement of affairs there would be nothing inconsistent in each of the bankrupts having Ll3O in his pocket at this moment. Mr M'Keay : It is not likely. His Honor : But it is quite consistent. If each were brought here and searched, and Ll5O found upon each, there is nothing in that statement of affairs which would be inconsistent with that discovery. Mr Haggitt observed that his Honor’s allowance for clothes was greatly too much, for L2S 10s for tailors’ bills appeared in the schedule - a good allowance for six months. After addressing the Court on the subject of the bankrupts having omitted to keep proper books of account, Mr Haggitt said it was apparent that most of the debts mentioned in the schedule were, incurred without aiiy reasonable anticipation of tho bankrupts’ ability to pay them. This was especially the case in reference to Bowden's debt. When it was incurred the linn’s stock consisted of an ullage cask of sherry, a cask of gin; while in their office were some empty cases and casks—mere dummies to induce people, who might be doing business with them, to believe they Lad a Targe stock. If the Court did not consider that the bankrupts’ conduct clearly camo within the misdemeanour subsections. His Honor : 1 am rather unwilling to prejudge that. You must try the question by preferring a bill. Mr Haggitt went on to say, if the facts did not warrant the Court acting on the misdemeauor subsections, there was sufficient for

impose on the bankrupt a lerigthraeir^peiision of his discharge for twelxe mouths. ■Mr M‘Keay would address himself principally to the \LBO. The bankrupt was very injudicious in' saying Miller took that sum away withhim, because it was a mere surmise purpart. As to the deficiency ho submitted there was some excuse for Nixou, as he did not keep the books. His Honor said a man in his position should have seen that proper books were kept. The statute required it of ignorant laboring men; but the Courts were always lenient with them. But with a general merchant it was different; ho should as soon expect to hear of a banker being without books. Mr M'Keay pointed out that Miller had been the capitalist; the banking account had been in his name. Nixon was almost a clerk. Neglig*. nee there might have been. His Honor: Great negligence, amounting in this case to recklessness. After further argument — His Honor said, without approaching the question of misdemeanor, he thought the bankrupt’s conduct very reckless, and very careless of the interests of his creditors. Commencing business with L4O, he got into debt to the extent of L7OO, and now loft L 350 to be account d for. Bankrupt’s certificate would be suspended for six months.