DISTRICT COURT.

Globe, Volume XXIV, Issue 2707, 11 December 1882, Page 3

DISTRICT COURT.

This Day. [Before His Honor Judge Ward.] The usual monthly sitting of the Court was opened at 11 a.m. ADJOURNMENTS. The cases jof Burton v Parkes, Bell v Wilson, and creditors of H. F. Neeley’s trustees v Saunders, were adjourned for a month, and several others were settled out of Court. TRUSTEES OP JOHN COTHER V H. MARKS. In this case the plaintiffs sued to recover .£2OO, alleged value of goods belonging to the estate of the bankrupt, which it was stated the defendant had converted to his own use. The defendant denied all the material allegations, and averred that the debtor had given him a bill of sale over the goods, on the authority of which he took the goods. Mr J. B. Fisher appeared for the plaintiffs, Mr Holmes for defendant.

Mr Fisher opened the case for the plaintiffs, and stated the facts. John Cothor deposed that on February 27th, ISS2, he filed his declaration of insolvency. In August, ISSI, he purchased the business known as Cashel House from Mr Berry Cass. He did not know the amount he paid for it. He took the stock at 25 per cent, under cost. The stock came to about £3500, and 25 per cent, off that was paid for it. The lease, fixtures and fittings were also purchased by witness. Mr Best managed the arrangement for witness with Mr Cass.

Mr Holmes objected that it did not matter for the purposes of the case how the witness paid Mr Cass. Examination continued—The stock from River’s buildings was also taken in to the business. This was valued at from £ISOO to £I7OO. Witness bought goods from several merchants, Messrs Edwards, Bennetts and Co. amongst the number. Nothing was paid for these goods—bills were given. At this time witness had transactions with defendant on November 4th. Witness executed a bill of sale to secure £1440. The money did not pass through his hands. Mr Holmes objected to this lino of examination as not relevant to the case before the Court. They claimed under a bill of sale the furniture, &c., of the bankrupt, which was denied by defendant. Now the plaintiffs were going into the whole case. He should at once contend that his learned friend had no ground whatever for objecting to the bill of sale on the ground of a former bill of sale, which was the plaintiff's case. The filing of a declaration was not an act of bankruptcy until followed by adjudication. His Honor said that the contention of the plaintiff was that the debtor had absented himself from his place of business, which was an act of bankruptcy. Mr Fisher said he was challenging the second bill of sale, by virtue of which Marks took possession of the furniture of the debtor on account of the proceedings which had passed between Marks and the debtor. It therefore became necessary to go through all the relations of the parties. Examination continued Subsequently to giving the bill of sale witness went to Dunedin and to Wellington to see his creditors there. Ihe defendant kno w he was going. Witness subsequently had an interview with his creditors. Mr Best informed Mr Marks of that interview. Witness then gave defendant a bill of sale ov.t his furniture, as he wanted some money. Witness carried on business in Cashel House himself up to 6th February. The business was under the supervision of Mr Marks. This supervision commenced before Christmas. A young man was placed at the desk to take account of the takings, and he took the cash to Mr Marks. Defendant had also a second mortgage over the property of witness in Armagh street. This was given in January, ISS2 ; in 1831 witness gave Marks a mortgage over the lease of Cashel House. Defendant was not then in possession at Cashel House. The premises were shut on the Sth February. Best got a bill of exchange for £ll4, drawn in his favor, discounted by Marks. Witness was consulted about it.

By his Honor—The money passed throug h Mr Best’s hands ; he could not say whether any of the money stuck to Mr Best’s hands. Witness meant by being consulted about the bill that he had signed it. By Mr Fisher—Witness remained in the business till it was closed. He superintended the business and attended to the customers. In January Mr Thomson obtained judgment against witness find the bailiffs were put in. The bailiffs were paid out by witness. He got the money from Mr Marks—it was close on .£2OO. A composition of 10s in the £ was paid to Mr Thompson through Mr Best, who made the arrangement. Mr Thompson’s debt was about .£7O. Witness paid money to his mother, £l4O, and Mr Slater’s costs. He received on February 24th a summons from Thompson, Shannon and Co., calling upon him to show cause why ho should not be adjudicated a bankrupt, and be filed on February 27th. Witness was in possession of the goods mentioned in the second bill of sale for nine or ton days after the bankruptcy. Subsequently the goods were sold by Mr Marks for £l5O to Mr Cook of Nelson, and witness rented them from Mr Cook.

Cross-examined by Mr Holmes—The bill of sale over the furniture was signed and the money paid by Marks prior to the bailiffs being put in hy Thompson. Witness also received ,£llO from Marks, in addition to the amounts to pay off Thompson. Witness remained in the business after Marks took possession, and did not leave until February Bth. The value of the furniture under the bill of sale was £l5O, and defendant advanced over £2OO on the first hill of sale. Marks gave him £l4lO to cover overdraft at the hank, &c. The summons to show cause why he should not be adjudicated bankrupt "’as received by. him after his business promises were closed up. Ee-examined hy Mr Fisher —Mr Marks remained in possession of Cashel House after the closing. Tlus closed the case for the plaintiff. Mr Holmes said the defence was a very brief one, and rested entirely on the evidence given for the plaintiff. The bankrupt was in pecuniary difficulties, and received from defendants £2OO giving therefore a bill of sa V Tht> defenda* <• b

also in possession of the goods and chattels of the bankrupt at Cashel House. He was unaware what case they had to meet, as their bill of sale was not under the Act at all void. Up to the time of his filing the bankrupt had not committed an act of bankruptcy. , . ~ , , . Mr Pisher contended that the debtor had committed an act of bankruptcy by Marks entering into possession of the premises. This was borne out by the juclgment of Mr Justice Williams. The position occupied by the debtor came under the clause of the Act of not being in his usual place of business, because it was tantamount to a leaving that he was deprived, o his usual control and power. His Honor said that this contention went far beyond any cose that had yet been decided. Mr Pisher said he would then contend that the bill of sale was not valid, inasmuch as the signature of the attesting witness was not in due form, inasmuch as it did not set out the residence and occupation of the witness. _ On the Court resuming at 2 p.m., H. R. Rich, clerk to Slater and Son, the attesting witness to the bill of sale, was called to prove that the statement of his name, residence and address was correct at the time the bill was attested hy his signature. Mr Holmes then addressed the Court on the legal point raised by Mr Pisher as to the validity of the bill of sale. The learned counsel proceeded to cite a number of authorities in support of his contention that the bill of sale was valid.

Mr Pisher having replied at some length. His Honor gave judgment for .£146. on the ground that the affidavit of the attesting witness, which should he filed with the bill of sale was defective, in not setting out the description of the residence and occupation of the attesting witness at the time of making tno affidavit. The Court adjourned till H a.m. tomorrow.