SUPREME COURT.

Nelson Evening Mail, Volume VIII, Issue 212, 3 September 1873, Page 2

SUPREME COURT.

civil sittings. [Btfore his Honor- Mr/ Justice BichkoitoJ -"- Yesterday. Symons v. W.Ukie— Continued. John Aiken sworn, examined by Mr Adams : I am accountant and manager of the bnuneu of W. Edwards & Co. On the fifth of JSeptemberJast, James Wilkie waa indebted to the Arabia the sum of £1,439 Hn 9d. There, was no dispute about the amount. On the day named J. Wilkie left a message at the Btore, in consequence of which I called upon defendant. He offered to pa/ a composition of 12s 6d in the Douud on his brother's debt to our firm and to two' other creditors — Messrs Fisher and Davis. I'communicated this to plaintiff, and Fisher, and D.ivi.o, and they ultimately a<«eptejd tbe offer. On ihe day Allowing, the. defendant called ut our warehouse to say that he had ascertained that the debts of the three creditors amounted to more than he supposed them to he, and that he was not willing to go beyond £1,200 to purchase the three •*'**" . Ultimately the (auditors gave way,

and agreed to accept the second offer and share the amount pro rata. Plaintiff was to be paid one third of this compounded amount -by cheque, •■ one third by acceptance at three months, and one tiiird by acceptance at six months. On the Allowing Monday I made out a statement of the account, and taking^with me fcfeo .hiUfl of egr xijlajjge, drawn fo^pie^greea^ataoiuW, vrami upon the defendant, who after examining the account accepted the bills, and gave me a cheque for £254 8s lOd , tftat being the amount of the first payment. [Bills handed to witness.] I notice the stamps, Affixed tifiem. § Mr Conolly here raised an objection to the two : bills produced being received as evidence on the ground that the stamp had not been duly cancell.ed_as _provided for by the Act. - A lengthy argument emu^d,~seT~tbe _ close of which His Honor said that he regretted the narrowness of the provisions of the Act, but was compelled to rule that the bills were inadmissible as evidence. Irr-addition to the objectteiTTaised he thought that the signature running diagonally across the bottom corner of the stamp was not sufficient cancellation, as the Act distinctly stated that the signature was to commence on the paper on the left hand side of the stamp, and be carried across to t^at on the right hand side. He thought it was to be regretted that the rights of parties were made to depend upon such very petty matters. f John ! Aiken, cross-examined :r saw James Wilkie on the 4th Dtcember. I conversed with him about the affair. Tddn't ' remember his saying he was willing to give everything up to his creditors. He had been carrying on usiness with us for a long time. I believe he had met with an accident in consequence of which he had neglected hlsbueinrss. I asked him the amount of his stock and debts. I cannot remember what he valued them at . I don't remember his saying he- was going to give up all to his creditors, nor m c replying "Well Mr Wilkie you'rejtoo honest." I first knew from -Mr J"hhe?r and Mr Davis the amount of J. Wilkie's debt to them on the following day. I don't think I knew then what Wilkie owed Fisher and Davis. The defendant offered 12s 6d in the pound for the debts. I presumed he knew the amount from his brother. It was not from any representation of mine that he made the ofiyr. When I said we would take 12s 6d I most likely knew the amonnt of the debts to Fisher and Davis. They were much larger than was first Btated. I learned that from defendant's own statement. At the time he offered 12s 6d I am not aware whether he knewi the amount. I don't remember 'defendant repudiating the bargain on account of the discrepancy in Dayjs and.Fiaher's-debts. When we all met in Mr Symons' office there was a discussion about the value of J. Wilkie's property. Our firm, has had a good many dealings with the defendant, who was always a very straightforward man of business. I don't rememl^er defendant saying if the stock were worth £1350, with £100 off for small debts, he would not mmd giving £1200 for it. I remember Mr Davis proposing to have a memorandum in writing. I remember defendant coming to me a day or two a f ter, giving the cheque, and complaining how little stock there wai. ''. When I gave the account to defendant I believe he read it,.. I don't remember James Wilkie's two bills being attached to it. Re-examined : Mr Symons did not assert any knowledge of the estate at the interview. It was remarked at'the time that none of them knew anything about its value. I am quite positive that it was the debts that were sold and ndt the estate. ' ' '" This Day.., , . T. R. Fisher: I a«*n a 'merchant. ""-Early in September last Mr J. Wilkie was indebted to me. I had ap.interview with defendant at Mr Symons' office, Messrs, Symons, Davis, and J. Aiken were also present. The arrangement come to was that ! defendant should purchase the debts of the three creditors present for £1200, being as defendant - said, 10s 7Jd in the pound. The mode of payment was to be one-third cash, one-third at three, and one-third at six months. On the following morning defendant paid me £1 10. j < '(Drossy-examined : At 10s 7sd in the pound I ! should have had to receive £264 15s 9d. There j was discount deducted for what I received 1 in excess of one- third. I received 10s 7Jd on my open account, and two bills already matured, the only amount left in abeyance being four bills then current. An arrangement to this effect was : made at Mr Symons' office by the defendant with Mr Davis and myself The creditors were all at Mr Symons' office before Mr Wilkie came. I had before that communicated to Mr Aiken the amount of J. Wilkie's debt to me. At the interview there- was -somertaikiabont the 'Talue of J. Wilkie's estate. There was nothing said about defendant purchasing the stock of fJ. Wilkie,,. I have-had several- dealings with defendant; and always found him a thoroughly straightforward ■man. The arrangement between, the defendant and the creditors was not for the purchase of the I ttock. I think it very likely that defendant [ would pay us the £1200 if he felt that he | was going ito get back something approaching j that sum. Mr Wilkie told me a few days after that the stock and book debts amounted only to £540.- The creditors met again on tne 10th of September. Mr Wilkie was very mnch annoyed at finding the result of his bargain unfavorable to his interest. Re-examined: At the time of making the arrangement I' knew nothing of the value of the stock and book debts. I understood that Mr Wilkie was endeavoring to do something for his brother irrespective of the value of the property, which was not discussed with a view to the adjustment. ■ John Symons: lam the plaintiff in this action. Early in September Mr J . Wilkie was indebted to me £1419:- I remember a meeting of the creditors in my office. Defendant was there. After son-e conversation he offered to purchase our debts for £1200.. .We.accepteel. Cross-examined: At our interview with Mr Wilkie, the value of the. stock. and book debts was probably spoken of. Defendant was to pay the t&l 200 irrespective of any consideration of reimbursement. A few days after, I saw defendant, when he expressed dissatisfaction with the value of the stock, &c. He endeavored to get an allowance made. Ke-examined: The purchase had no reference whatever to the value of the Btoc£. 3 He asked for a reduction merely as a matter of grace He complained that „he . had been. 1 deceived by his brother. ■ This closed the case .-fojj the plaintiff. 1 .... ... Mr Conolly having opened the case for the defence, called -> '-"•«■ 1•; n , James Wilkie, who said, I have been for some years a storekeeper at Motueka. ~I had landed property there. As.storekeeper had been dealing with Edwards & Co, Mr Fisher, and Mr Davis. In August, 1572, had a conversation, with Mr Aiken. We Bpoke about my affairs, and he told me I had better take advice about it. I came to Nelson again in September, and again saw Mr Aiken, I told him I had taken no advice, but had come to ..give- everything, -up tahim. . I divided the monthly takings between Edwards & Co, Fisher, and Davis. He asked if I had seen my brother. I replied, No, and that I did not think I would. I told him what I thought was the value of .therstock,jgHn^y, jepe^'apidjithat.the book debts were £306, ana that I haa sheep worth £l(fo. I told him I owed Davis £250, and Fisher J6250. I had not then seen my brother. Mr Aiken asked me what I proposed doing. I said I - would leave it in bis hands. He told me to see Fisher aud JDayis next morning, but need notxlo , co that night. I saw my brother about ten o'clock next morning. Mr Aiken came while I was with him, and said he thought the estate would pay about 15a in the pound: My brother said, " You know better, it can't pay that." I said iv reply to my brother,! thought I cquljL.pay 10s bnt not 12s. He was going to find the money for mo. Mr Aiken told him the amount of 1 ioher'? aud Davis' debts. It was arranged that I was to pay 128; Mr Aiken was satisfied. I found afterwards that there was £100 mure due to Davis, and £150 to Fisher, bills ahat I had forgotten. My brother was annoyed to hear of this additional debt, and said he would have nothing to do with it, ' ''

Cross-examined : I am still keeping a store, I don't know for whom. My brother supplies a few goods. I and my sons are falling bush, and my wife keeps the store. I did not owe my brother money at the time of .my difficulties. I have since conveyed to l#m rnyklanded property 1 atMotueka. I g»t notbitfg for /Baking that g|§ve^panceSr It way' not in consideration paying my debt?. I had received notice from the mortgagees, and told my brother that I could not pay it off I estimated the value of my estate and book debs at £900. . . told Mi^fijiken, and my brqthfr they had better fake stock. * -*- k~& William Wilkie: I am defendant in this action. I remember seeing Mr Aiken early in September last. He asked me if I had seen my brother. I said, not for three months, we hnd not been very friendly as he had not been behaving hinoself properly. He said he had been doing v&ryibadly - lately. I replied that I knew it, and that I thought he had been allowed far too much credit. He asked me if I would do anything for him. I said "Oh, no thank you," and advised him to take the affair out of hig hands altogether. After a time I said I wjould' not mifld .(Joijig. something if the whole estate was taken out of his hands. I would give full value for everything that was, there. Mr Aiken saw ' me again in the evening, told me my brother had been drinking, and advised me to take him heme^. and I might be able to do something witlr him ih tile morning I saw him in the morning in my store. Mr Aiken followed him, and in the course of conversation said the stock was worth £900, the book debts £300, and shefg £150. Jamet agreed to this. Aiken said, «yl suppose that's* worth £1500. I replied, "Go along" with you Aiken, you know what a bankrupt's stock is." ' My brother said he did not think he could pay 1()3 in the pound. I offered, if he could pay 12s, to advance the money without interest. Mr Aiken said he ought -to have l^s^edjiand 1., declined. He went away and came back later, * and said, we will accept the 12s. I replied' Very well, I'll get Jenny to see aboat the affair. I was not at the time aware of the true amount due to Fisher and Davis. I learnt it shortly after .^ I then went to Aiken and complained of the discrepancy, and said I would have nothing at all j t< l d fS 1 * % Aijrhour lpterat hte request , I, afte*r raismg^some objections, accompanied nim to the office. I found the three creditors there, and I joked with them, saying they had the wrong man. I told them I was going, .to send over to take stock and would give them 20s in the pound for all that was there. lam willing to invest in piy bj other.'s^pfpperty jta the .auiount,of j £1000. I suggested that they should take the land, | but they refused. Mr Fisher said that it £150 were taken off for bad stock, it would be a fair bargain Mr Symons pressed me very hard to offer so much in the pound, but I refused. I said if the stock was worth £900, the book 4eba £300, and the shop £150, 1 would gwe "£ KOO. Ihis was accepted. Therfe wasj nothing .said about my purchasing their debts. I made no offer of any specific amount in the pound. I said | I was going to send two persons over to take stock, and suggested that Mr Symons should send some one as well. He sajd \b v^asrauite unnecessary, but would be satisfleb! withr their'account. I was to pay £1200 in cash, £400 in cash, and the rest at three and six months. I paid Mr Fisher £110 the next morning: I saw- Mr- Aiken afterwards, and he complained that I had been favoring Mr Fisher. I told him the circumstances which were that Mr Fisher had told inc. that he had two bills coming, one that day, and wanted the money. He asked me if I had any objection to do the same for them. I said no; as I thought I was in good hands, and that Edwards & Co. would do that which was right. I gave him a cheque for £250. He went away and came back again. He proposed that I should give bills for the amount. I agreed on condition that if anything went wrong the firm was to indemnify me, to which he agreed, at the same time telling me not to give the other creditors bills, as there was no knowing what might happes.j *■ When the written statement now produced was given to me by Mr Aiken, the two bills of James Wilkie's were pinned on the front of it. 'Ixiid not read it at the time, nor did I do so until the present action was commenced. Barßrop and my son returned from Motueka on tha Tuesday, and told me about the stock. 1 went to Mr Symons and told him the stock and book debts were worth only £520. I said I expected they would 'make it up to £750 at least, being the lowest. sum named at the time of making the bargain. I received the same. r day.ia letter from the three [ creditors declining to re-open the matter. - Cross-examined: I have haoVhothing to do with tbe Motueka business since. It is hanging be- : . tweeu heaven and earth. The stock, book debts, £200 by the affair. The loss is a little too severe now. Mr Symons told me the thing might not &c, were valued by my brother. I expgc^ed'to 16'se^ not be so bad as Inhouglft, and'fecoainaended m<s to go over and Bee ior myself. I went and found" ' matters worse than I expected. 1 expected to ! recoup myßelf slightly out of the landed property when I bought it. I said I would rather lose £300 or £400 than go into Court. I-aaw I had got into_the b.agds of 4he Phi^atines, ijpd thought I nacTbetter try and get out of them as soon as possible. [MrTravers: I thought Mr Davis was : a Jew, not a Philistine.] I gave the three creditors written notice a little later. I have had ; very little to do with Bills of Exchange.. My brother ;had been afraid to come near me for some time lest I should know about his affairs. I think Mr Fisher's version of the story is untrue. He and Mr Symons might have thought I was piirchas-* ing the debts, but they were never mentioned. I think^Mr Aiken may have misrepresented the 'matter to them, and thought that. the bargain was ;a> continuation- of my first offer of 12S in the pound, which it was not. I Henry Barltrop gave evidence of the value of the stock. . John Aiken, recalled : At the time I went to ,the defendant I did not know any of the other creditors had received any moneyi. I don'tr remember seeing Mr Wilkie on the subject of the payment to Fisher. At the time Mr Wilkie gave 'me the bi113, , he did not say anything about money being returned if the' "stock did not come up to the estimated value. By the -foreman : WHec James Wilkie first came to me about being in difficulties, he made a statementof- his -affairs which- -I -put down on paper and., afterwards to his creditors. This closed the case for -the defence. . The Judge was summing up when we went: to press. ■■•-...-. . ..; .•_.,