MOTION AGAINST TRUSTEE’S APPOINTMENT.

Patea Mail, 23 August 1881, Page 3

MOTION AGAINST TRUSTEE’S APPOINTMENT.

A motion of a novel character was made yesterday, before the Clerk of the District Court, to upset the appointment of Mr W. Cowern as creditors’ trustee in the bankruptcy estate of Mr W. Williams. Mr Elliott Barton, solicitor acting for Mr Duncan (representing large native claims) and for Mr North, a principal creditor, put in two affidavits alleging that the trustee’s election was void through irregularity of procedure ; the blame, if any, attaching to the then chairman of meeting. Major Brassey had attended the first meeting of creditors under bankruptcy, being proxy for the natives for whom Mr Duncan was acting. Mr Barton’s argument was that these affidavits showed that Mr Farrah, chairman, put a motion to the meeting for Mr Cowcrn’s appointment as trustee, and without giving time to those creditors who wished to object, he then declared the motion carried unanimously. Reasonable time was not allowed. Major Brassey then said “1 object.” Mr North said “So do I.” The Chairman said they were too late, hut he recorded their protest on the minutes. That resolution was invalid because these two objectors represented a majority in value, and the resolution could be carried only by a majority of creditors present, in number and value, voting for it. It might be said these two creditors did not vote against the motion, but ho contended they did vote against it virtually, and as no procedure was laid down in the act for taking votes, they must be held to have voted against the motion legally. The highest precedent as to the mode of taking votes was that of Parliament, and there the practice was for the Speaker to put a motion, and if any member said “ No ” or otherwise objected, the bell was rung and the Speaker took a division. Inasmuch as these two creditors had virtually said “ No ” by objecting, the chairman ought then to have taken a division. He did not do so ; therefore the trustee’s election had not been legally made, as no proper opportunity had been allowed for objections. The fact that the chairman had recorded the two protests on the minutes was in itself evidence that those creditors voted “ No,” and they being a majority in value, the trustee’s appointment was null. He would ask the Clerk, on these grounds, to summon a second meeting of creditors, to enable them to appoint a trustee in proper form. Mr Hamerton, for the trustee, quoted from affidavits signed by 14 persons. who were present at the trustee’s election, showing that reasonable time was given for creditors to object, and there being no voice raised against, the motion was declared carried unanmously. Mr Farrah’s affidavit said that when he had declared the motion carried and sat down, Major Brassey whispered to him : “ Damn it, Farrah, we should have a Wanganui man in.” Then Mr Farrah said it was too late. Major Brassey said aloud “ I object.” Mr North said “So do I.” The other 13 affidavits all supported this version, except that what Major Brassey had said in low lone was not heard by others. Mr Dale, chairman of the County Council, had made affidavit that in conducting Council business he would not have allowed more time for receiving “Noes” to a motion put. Other chairmen of public bodies had made affidavits to the same effect. The whole thing was an after-thought on the part of the objectors. Expenses had been incurred by the trustee before receiving notice of this motion, and the fullest costs ought to be given if this motion were disallowed, in order to check this tendency to fritter away the whole estate in lawyers, expenses. The Clerk said he would consider the points raised, and give decision on Tuesday morning;