DISTRICT COURT.

South Canterbury Times, Issue 2205, 13 April 1880, Page 2

DISTRICT COURT.

TIMAKU—YESTEKDAY.

[Before His Honor Judge Ward.]

Green v. Knublcy. Application by defendant’s solicitor to set aside a former verdict. Mr Jameson for the plaintiff, and Mr Ecid for the defendant.

Mr Reid said that on the 12th Tan., 1880, a verdict had been given in favor of the plaintiff by three-fourths of the jury, and the question then arose as to whether the verdict was receivable at all. He contended that the provisions of the Act clearly did not apply, and therefore a verdict of three-fourths of a jury could not bo accepted. The jury Act of 1876 was another substitution of the Jury Act of 1871, and that referred only to issues agreed upon and settled in the Supremo Court. By the Jury Act of 1868, clause 68, the jury in the District Court must be unanimous in their verdict, and that clause had not been repealed. On these grounds the verdict should be set aside.

Mr Jameson in reply submitted (hat as a three-fourths verdict held good in the Supreme Court, it should also hold good in the smaller Court. His Honor ruled that the verdict could not be taken unless the jury were unanimous. It was quite clear, from the Act of 1871, that a verdict of part of the jury could not be accepted. lie John Wilson. This was an application by Mr Austin on behalf of the trustee for an order for possession of certain land. His Honor said he had carefully considered the case, and would have to make an order in favour of the trustee. Be George Cliff. Application for an order of discharge. Mr Hamersley for the debtor, and Mr Jameson to oppose. George Cliff, examined, said he had resided in Timaru fourteen or fifteen years. Ten years ago he sought the protection of the Court. Offered to compromise with his creditors on the 18th July, and being unable filed on 25th. Received about £ls between these dates in payment of small accounts. Received about £5 from one Potter, and a promissory note for £.17 18s from Wm. Parke, the proceeds of which went to Mr Wortlcy to pay for his son’s education in Christ’s College. Also a promissory note from Blyth for £l5O, and an accommodation from Gibson for £169 13s Id, for which goods were furnished. The sum of £25 17s received from James Hilton was paid to Turnbull for money advanced by the latter. On July 11 gave Turnbull an order on Waters for £l3O. None of these transactions were entered on Ids books. The latter were generally balanced monthly to show outstanding accounts. Xu statement of liabilities and assets was made out for twelve or eighteen months before filing. Banked at the National Bank, and received an advance there on the security of his property. He believed at the time £4200 was due on the property to the Building Society, but afterwards ascertained that the debt was greater. Mr Sutter also held bills over it for £BOO. lie acknowledged writing a letter (produced) asking for £3500 on a second mortgage on his property, but said he overlooked Mr Sutter’s mortgage when he wrote it. Owed the Bank about £3OOO when he filed. Did not mention a loan of £4OO from Mr Hayliurst to the Bank. The land at Cliff Town belonged to Mrs Cliff for whom he acted as agent. Tate and Hall used to collect the rents, which lie believed were paid to the Building Society. Bought some bush land at Wairaate, and had an in ten stin section 334 belonging to Dr Macintyre. No entries were made in his books of land purchased. Was in the habit of paying for the land and borrowing as much as he could ou it, and paying the money away. To Mr Hamersley—My bankruptcy was occasioned by the Waimatc lire. I could not estimate my loss by it, as it mined me. I lost £I3OO by King and Co., £ISOO by the Waimatc fire, £260 by Thornton, £l5O by Sibley and other amounts which would more than cover my liabilities. At the time I filed I had £ls and some odd shillings in my pocket, out of which I paid £5 for servants’ wages, as the trustees refused to do so. In July, 1877, I remember filing a list of my assets at a meeting of creditors, which was afterwards adjourned. It was owing to the National Bank not consenting that I had to file. Since I filed the trustees have not gone through the books with me, although I was always agreeable to do anything for them. All Mrs Cliff's property was bought with borrowed money, and the rents were paid into the Building Society to pay off the debt. The further hearing of the case was then adjourned till II o’clock this morning. THIS DAY. The case was resumed this morning. The debtor’s examination was continued. He stated that the only monies in his possession before he filed were £ls, £5 of which he paid away as wages. Cross-examined by Mr Jameson—The trustees never wont through the hooks with witness, or asked him to explain anything. James Stevens, manager of the Timaru Branch of the National Bank of New Zealand, deposed to the Bank having joined with other creditors in calling for an investigation into Cliff’s affairs. He was acred itorjof the Bank’s to the amount of £3OOO. Would not have made advances to Cliff had he been aware of there being a second mortgage over his property. William Slorickcr, accountant, Timaru, deposed to being called in by the trustees to examine the debtor’s books.. They were kept very loosely, and it had been impossible to strike any balance. Several extracts wore read from the debtor’s ledger, showing that various sums had been cither incorrectly entered or not entered at all.

By Mr Hamersloy—-Iliid not examined the bank-book to sec whether the cash and promissory notes received by tiie debtor and incorrectly entered had been paid into the Bank. They might have been. E. 11. Tate, Secretary of the Timarn Provident Building Society, deposed to having collected certain rents for the debtor. t'lilV mortgaged his properly to the Society for T-ioOO in 1878. The rents collected were to pay off the mortgage, and were paid into the credit of the Building Society as (hey were collected. The mortgage instalments amounted to fh;’) per month. The rents wotdd not pay more than L'oO per month. Paid CoOO, rents collected, into Building Society account live days after (,'lilf tiled, and another sum of.(MOD, making a total of ,CVOO. This money should have been paid in three years before, but was overlooked by witness who paid the money out of his own pocket to make up the deficiency. Prom the time the money was collected np to the time Cl ill; tiled witness had never had any conversation with him about the money. Mr damesou said that he should not detain the Court by any lengthy remarks on the case, but rather leave the

Court to arrive at its own conclusions from the evidence submitted. He would beg to draw His Honor’s attention to the fact that the four.dajr lists had not been filed and posted in compliance with the Act, and, on this ground alone His Honor could refuse to grant the debtor’s discharge, as he had refused in other cases. The learned counsel then commented on the loose way the hooks of the debtor bad been kept. Having filed on a previous occasion, the debtor should have exercised more than ordinary care in keeping his books correctly. Under the 14th section of the Fraudulent Debtors’ Act ’7B, His Honor was empowered to refuse the application for discharge on the ground of the books having been badly kept. Mr Hamersley remarked that the books bad been kept loosely, and nothing more. The bookkeeper should have entered up all amounts in both bill book and ledger, and not simply in the ledger. Mr Cliff bad been waiting for nine months now for his order of discharge, having filed, in August last, and the whole of that time he had been practically suspended from carrying on any occupation. The trustees were liable at any time to step in and interfere. Now this was very different from the ordinary applications for discharge. There was no imputation or charge of any kind against the debtor, and there was no proof that the creditors had lost money. The position held by Mr Cliff prior to his bankruptcy had given the case a certain notoriety. Had he been a small contractor or dealer of no consequence there would have been no obstacle to the granting of the application. In summing up the case, His Honor said the books it had been shown had been very badly kept—especially calculated to mislead in fact, but the most serious part of the ease was in connection with the National Bank. The bankrupt had stated that he had told the manager that there was a second mortgage over his property, but the Bank manager had sworn that he did not know there was any such thing. The order of discharge would be suspended for 18 months. The Court then adjourned.