SUPREME COURT.

Nelson Evening Mail, Volume IX, Issue 15, 17 January 1874, Page 2

SUPREME COURT.

(Before his Honor Me. Justice Richmond.) IN BANKRUPTCY. Friday, January 16. In re George Edward Levien of Havelock, storekeeper. In October last this bankrupt came up for his final examination, and Mr Fell applied for his discharge. Mr Acton Adams, on behalf of Mr Hyam Davis, a creditor, opposed the application, and evidence was taken at great length, the case lasting four days. At the conclusion of it, his Honor adjourned the case to allow of further evidence being obtained. Mr Fkll now appeared for the bankrupt, and Mr Pitt (with him Mr Acton Adams) for the opposing creditor. Further evidence was taken at some length, the case occupying the whole day. Mr Pitt addressed the Court, and asked that the bankrupt might be committed for wilful and corrupt perjury, or for misdemeanors under sub-sections 3, 4, 6, and 7 of Section 302 of the " Bankruptcy Act," or that his order of discharge might be suspended under sub-section 5 of Section 120, for not having kept proper books of account. Mr Fell having replied, His Honor delivered judgment as follows : I shall proceed at ence to dispose of this case, as I have made up my mind how to deal with it. First, as regards the charge of perjury. I have no intention of committing the bankrupt on this charge. As is pretty generally known, I am averse to exercising the power vested in me in this direction, when I should have to try the case myself in the ordinary course. The remedy of laying an information is open to the parties, and I think it is better that they should pursue it if they think they have a good case. There is another reason which should make a judge pause before exercising this power. It is inexpedient that he should do so unlesshe considers the evidence sufficient to support such a charge, and I am not prepared to say that the evidence in this case alleged to be false is sufficiently material to constitute perjury. Next as to the proposal made to me to certify under section 302. I think thut the commission of any of the misdemeanors under this section has certainly not been established. Nothing amounting to concealment of assets has been shewn. It may be that materials for such a charge exist, and I do not wish to prejudice any further action of the opposing creditor, bat the measure of proof is not full. I therefore pass over this charge and turn (o the next question, viz. — What is to be the action of the Court under Section 120 ? The principal charges have been made with reference to three accounts those of Jones, Haydn, and what I shall treat as one, the three accounts of Murdoch, Leov, and Firth. As to Jones' account, the bankrupt has confessed at least that he has been one party to the concealment of this account — that, for the purpose of concealing it from Mr Hyam Davis, he, himself, by the direction of Mr Moss Davis, transcribed the account from page 58 of the Ledger, which has since been torn out, into the middle of one of the Day Books. It is in the bankrupt's hand-writing, and the date of its being done has been fixed by probable evidence. That transcription was of course done, as it is admitted, for the purpose of concealment, and the natural inference is that the other acts, without which the transcription would have been unavailing, viz. — the cutting out of the page in the Ledger containing Jones' account, and the subsequent pasting together of the leaves in the Day-boos, to which it was transferred must be attributed to the bankrupt. I suggested, on. the former hearing of this case that the pasting together might have been done for the sake of convenience, but as the transcription and mutilation were done to conceal the account, it would seem that this was also part of a scheme for keeping Jones' account in the background. The motive for so doing can scarcely be called a corrupt one, as the bankrnpt could make no private profit by it. [The bankrupt had given a receipt for the balance of this account as being paid "by work to be performed," as bankrupt alleged, on certain alterations in Mr Davis' store at Havelock.] He was , dealing with a creditor whom he considered a hard man, unwilling to allow a reasonable sum to be expended in repairs on the property, and he therefore tried to get it, unknown to Mr Hyam Davis, but with the privity and consent, the bankrupt says, of Mr Mosb Davis. Ido not assume that this was so. It is now clear at any rate that Mr Moss Davis was not at Havelock when it was done. Whether he did assent or not, I think this act of the bankrupt amounts to " omitting to keep proper books of account, or keeping them imperfectly." When a merchant opens his ledger, his mercantile heart, so to speak, ought to lie open to his creditors. lie has no right to keep anything back from them. I now paas on to Haydn's accoant. Thia account appears in the ledger as settled, but we find it transplanted into a little book, where it j

runs up to over £10. I am not imputing to < the bankrupt that he appropriated they money, but I say that the mere transplantation is , a mercantile offence. The account has no business in the little book. As to the remaining accounts, Murdoch's, Lcov's, and Rrth/s, what I have to say is much the same. They ought to appear in the proper books. On the whole, I think that the bankrupt falls wl;hin sub-section 5 of Section 120 of the Bankruj v'y Act, that he l< being a trader has during his trading with intent to conceal the state of his affairs omitted to keep proper books of account," j or " has kept his books imperfectly." There is more than a technical defect in book-keeping. The bankrupt haß manifested an intent to conceal the true state of his affairs I must take notice of this fact, and although I regret that a man with a family, who has not been proved guilty of any misdemeanor in Bankruptcy, should be kept out of his means of livelihood any longer, still it must be so. My judgment is that the bankrupt's order of discharge be suspended for the period of one year from the day appointed for the bankrupt's final examination, October 3rd, 1873. The opposing creditor to be allowed costs out of the estate.

Mr Pitt asked His Honor to say whether the charges made against Mr Moss Davis had been disproved.

His Honor : Of course the evidence so far as it has gone tends still further to exonerate Mr Davis. It is clear that at any rate the transcription of Jones' account was made in his absence.

[This Day.] In re George Silcock, of Spring Grove, laborer. This was a re-hearing of bankrupt's application for his discharge. Mr Acton Adams appeared for bankrupt, and Mr Pitx for George Hop good, the opposing creditor. The bankrupt was examined, and several witnesses were called. The case was a very small one, His Honob suspended Bankrupt's discharge for a period of one year, on the ground that the object of his going through the Court was only to avoid paying the debt of the opposing creditor.