DISTRICT COURT.

Taranaki Daily News, Volume XXXXV, Issue 119, 21 May 1903, Page 2

DISTRICT COURT.

4, WfIDN-SiUV, 20. h Mir—Before District Judge Kettle CLiIM ON A P.N. | Union Sawmiili'ig Company v, tha New Plymouh Sa9h and Door Company, claim £450 on a promissory note. Mr Crump, of JElthara, appeared for plaintiffs, and Mr Q ullnm (of Govett [and Quilliam) for the defendants. Th'B wes a claim for piyincn'. of .a promissory to'e which had been stop i pjd by defendants, owing, it was alleged, to the conditions under which it was given not beirg comp'ied with. The tic's alleged by defenlants were .hat they bought a s*wmill from the plaintiffs, Messrs iiunciman, Ohew Ohong, and others, trading as .the Union Timber Co., including two leases, one of wh'ch confai icd a right to a siding at tho Elth m railway station, whiih ouH only be transferred with ■he consent of the Minister of Railways. Id was alleged that tho p.n. was given on ropn saotati jn by Runciman .hat Mr Oiuaap, solicitor, held this con «nt. Mr Ellis, managing clerk to Qovett and Q tilliam, oi thew representations, seal the p.n. to Mr Crump iccampmied by a letter, in which he sated tha p.n. was sjni-, he (Mr Ellis) understanding from Ruucimm thtt he (Mr Crump) hell the consent of the minister. Mr Crump, it was alleged, notwithstanding this resarva'ni', handed the pn. over to Runciman. The hoe seat of the minister not being forthcoming, payment of ths p.n. was stopped.

The main facts wee admitted, Mr Crump relying on a promise from the Department to a tie v lease, under different condition 3 , which it wjs held Wi-ra known to defendants, Mr Quilliam call d,

John Elli-", manager liw clerk for defendant's solicitorß. Had the m\nagemcnb of this affa : r in my bauds. H '.d interviows whh Mr Runciman and Mr OhoDg. They commu- icated with their s ilicitor on the te'ephone in my offica. Oa the 24th Mr Runviman s'ntei he believed the consnts were in Mr Orump's hauls. I acted on that b.lbf, On tha 26 h I sent the p.n. and wrote toMrOrumpforthecm>eot, and asked him to sead the onssnt in to my firm, By Mr Crump: Oa the 270 h Ojt. t wro.e seating the offer was accapted. Wa3 not prjsnt when th> arrangement was made. Uundrstood all abng a p.n. w a to be givei ia p.ymerit. A. deposit of £o was pii 1 in cash, X 45 (an old dfcbb) a-:d the balance of the .£SOO by p.n, for £450. [VlrOrusop hire read and pui ia a numoer of letters wire 1 ! hid p ssed between the parties.] I knew you wantel to be cognisant of every hing before you concurred. L tsr I got a wiro from you raying settle on the terms Agreed toby Runciman and Ohong. Possession was given, I believ, of tha property, including the siding. Am not personally aware if the defendants are s'.ill in possession. Am aware- there was an ! agreement to lay a tramway. Cannot say if it nukes no meothn of a s'ding, Kno.v no hing of any arrangein intbebwean the Union Tiim.r G), and the Eltham Box Company. Only kaewof theleas°. S ateinentof acount (put in) is the one I seat to Runci am, I would certainly not have settle! had [ co' understood you hvi the consent. The consent was not obta ; nel during the currency of the Bil', and has n=vjr been obtained as fir as I know, Knaw of co corro3p3cdence on the part of defenlant tint woull prevent the consent baing ob'aimd. Mr Q liliiern said he did not propose to call any further evideuce. Mr Crump thea opened his case, and contended that the Biding right was a mere incident of the purchis?. Tdey bought five things—(l) the goodwill, (2) the leise, (3) right to hy tramway, (4) all buildings, sidings'acd ways, ini (5) chitte'.s, bjx nncain*, safe, office furniture, etc.

Hit Honor said the defence was tint they hid not obtained oonsilera'ion. T'hay did cos impute fraud, Mr Qailliam said hi rested his whole case on mar. prestation. Thay understood the Company had thi eoaeenn to the transfer ; that was all they wanted, Mr Orump siid they had a promise to consent.

Mr Qailliam said he was prepared to say if the omsent of the Minister was hand id over the. ease need not go any further. His Honor considered the p.n. should not have been handed over. Ho veve ■, he would hear evidence Mr Crump called Taoiuas Ruuciman, one of tha plaintiff-', a sawmiiler formerly re-idiog at EUtham, deposed thit he was when the arrangement forthesalein question was made. The siding right was not talkei about. Mr Snowball, manager, was aware of the position of chs siding right. The position was (hit the Box Company haJ rights te the siding: the Box Company's yard is oeyond our yard and had a right to u-e th i siding. Mr Snowball knew all a lout this and was on the siding frequently. At the meeting of directors it was agreed that part payment should be by promissory note. Mr Ellis asked if the consent of the Railway Department ti.;d been got, I said I believed Mr Crump had got a telegram that consent would be given; I could not sea ho.v the consent could be withheld from a strong company who was taking it over from a weak eompiny. I understood the consent would ba got b.-fore tbe Bill matured. I asked Mr Orump the question if the consent had be?n got but he misunderstood me as we were fixing up tbe Box Company at the time and he thought I was referring to it. To His Honor: I came to New Ply mouth with tbe idea that Mr Orump hd the consent.

To Mr Crump ; I knew you had a telegram and i nought it referred to the Union Timber Company. To Hfs Honor: I expecteJ to get the formal consent bi-foro tin Utll matured. I explained this to Mr EIU as I had previous experieto of the delay in getting auytbing from thi Uepaitnent; I mean the sigoa an to-, she formal co sen*'. I got the promissory note from Mr Cruuip oa the 2nd \ of January. l To Mr Cramp: Had conversation /with Mr Tribe on the q testion of the sidirg. The Sash and D jjr Oomp ny had resolutions with the o'her company I had soli tj ie. the li.i Company.

Mr Q lilliam pointed ou'; that tbis was after tho difficulty hid arisen. Mr Crump Slid this was by wiy of a waiver.

His Honor said he. had no evidence of the waiver; th9o:r.espDnltnc3 8 \i:k ti tho sami print all along ; they tai i sjiva us the consent and we will pay, Mr Crump slid hj hid tbeouse-v and real letters fr>tn t lett til way Department-, dated ISch February, sitting cboy had no oVj ;c ioa to the transfer of the siding 3227. Mr Q t llitm siid that only nppliel totheoue letse, Ha put in the con-

■suit t!r/ri'"i by tL i Hu.it-i' « l *>'<<il

His Honor pointed out; that h was the duty of plaintiffs to Re 1 , eiir Joseph Ward's signature, as Minister of Railway*, before tlvro w..s ;t 1 g<l transfer. Mr Orump contended that whit they sold was the sanction of the Department, but the S\sb & Djor Factory had prevented them go'ting the transfer,

IMr Runcimau's cross-examination was continued. The tramway had b?en | taken up and the iron r.iils of the Biding \ put on top of the tramway line. The tramway deed was in existence, an 1 * was one of those assigned. Cannot si> where the original siding agreement has gone. Have searched everywhere for it and cannot find it, Mr Quilliam said he had rec lived a form upon which they were asked to make application for a siding right at £25 a year, instead of getting an existing oae at £lO. iGwjsqaite anew thing.

H s Honor: Why was noi the purchasers made aware of this '(

Mr Orump contended they did know. Mr Q ailliam denied this, and said they were asked to pay £35 a year no* for what they exp?cced to get for £lO a year.

In reply to Mr Q lilliam, Mr Runciman said there was a mistake as to the area of the sections. Tois was put right and the money paid. The goodwill if tb.3 business would be much more valuable with the yard and sidings In reply to His Honor, Mr Runoimau said he went to Wellington about the siding. Git the decuman 1 ; somb monihs afterwards. Did nit hand it over to the purchasers.

His Honor said chis was tb.3 cause of the whole trouble. If this documenthad baen handed over there wonld have baon no trouble. He suggested ad pumice; the case till 10 o'clock to morrow morning, with a view to a settlement baiog arrived at. If no I settlement was arrived at ha would [give juJgmen*.

IS( BANKKUPfGY. Iq the mitter of an applic ition by the T.ranaki 3*wmtilers Association to have William Miller Wood head adjudicated a hanki upt. Mr appeared in support of the apt>ucitioa ani Mr Milone opposed.

Mr Spence opaned by explaining what led up to the proceedings and called

Obarles Ahier, who beiog sworn, said: lam a siwmiller and a director of the T<-.ranaki Siwmillers' Association. Remember a meeting of tbe directors of the Company at Stratford, when Mr Woodhead and his solicitor were preseot. Uertiio property was Vitluad at £6OO subject t) a mortgage of £3OO to the Stratford Building Society and £7OO to Mr Shailer Weston. Understood the section was one taken up on defer re J payment, the purchase of which was not complete. Two other p.opertiea were mentioned; I understood the Eoru mill was valued at £2OOO and the Pembroke-road Mill at £2500. The figures might be reversed ; understood there was a guarantied bank overdraft of £IOOO and a fur her ad /ance of £2500, and believe it was guiranteei by Mr Weston, who held a security over all the property. Mr Wnod&ead owed us a private debt fjr t'mbir supplied of £94 15s 7d. We understood that he could not pay it. I think there were promissory notes for the amount, There was some irregularity in fchia and Boon's acouunt. He still owds the £94 15i 7d.

By Mr Malone: At the meeting he admitted defalcations, but said that -he coctld make restitutions. The question of taking proceedings was not mentioned, Dj not renumber your sayiog if he unconditionally bands over his propsrty n) proeeading? would ba taken, Rememb'r Mr Woadhcad writing to thj Ohaiiman, admitting his defalcations, but cannot say what Mr Brown did ; the directors did not offer to compromise in any way. Mr Woadhead cartain property by way of restitution, bat there was no quas ion .of prjceeiiuga menti >ned. Cannot value the seotions in JulietI street.

Mr Speoo3 said that was all the evidence he would call.

Mr Malone opened for the defence and called

Willi,m Miller Wo)dhead, wbosiid I am the parson named in prooaidings before the Ocur% misappropriated th>) sum of £ISOO of the Sawmillors Association, wrote to tha Churmaa informing hi in of wuat I be ieved to be the amount of my dsf Uoation'', and offered to h-»nd over all my propa.iy to them by way of restitution. Ith mgtn if I gave up everything to them that uo proceedings would be taken. The avoidanja ot proceedings was in my mind all through. Had a conversation wi h you ai.d asked you to act as so-ci'nr. Toe question of costs aro-c M., bpenoe hsre objected, and His Honor ruled in his favour. Evidencj continued: I had a few otiitr liabilities at that time; there were two p.n's current at the tim«, £lO3 each to N. J. King and Smart Bros.; consilered the house would piy wha' was owing on it, and the Juliet-street sestiona would pay Mr. Weston. That is why they were not put in. Consider I was treated diecourtiously regardiog notice of meetings.

By Mr. Spence: Sent a written statement showing my li ibilities and assets to the first meeting. Did not mention Mr. Wes'on's mortgage; my acion was quite voluntary. Admitted £i 10i was owinp, and possibly owed Stewart & 00. a small accaunt.

I To Mr. MJone: What he kept out, j viz, hou.e and sections in Juliet-street was what he daem-id sufficient for othvr oreditors, Understood Mr. Weston would accept XSOO of X7OO. Valued the housj at X7OO. Mr. Mtlone submitted there hid been no act of bankrupcy, H's Honor that debtor was tvileutly bankrupt at the tim-, and was trying to do h;e bess to make restituior, but would the law al'o v h'.m to (iictite to th.9 o'hcr creditors ? | Mr Malons submitted that from •iebtoi-'s asaitj and liabilities he was solvent, though no'- then in ready cash, ! >e-. the very perasns who would have ientfitted by the turned round and attacked is as an ros of bankruptcy. Tha hw on tbe point was] ,eemingly wrapped up in a quastioa of, preference,and he qui!eic«earelating' 'herato. ' I

His Honor rule J there hid been no fraudulent pro ft re nee, as debtor made the assignment to save himself fiom ptosecuti -n. There hid been no doiniism nu iva in the debtji's ac'.ian to s iv'rt pref-reuee. Mr .viaoae q-wtod further auth riies ;o show theie hid been no acs of jink'up cy. His donor: Here the creiior will not ti ki the assig, me»t, but, prefers he estate to be wcund up in bankruptcy,

iti.' ■"•'!ji.'"vtii'-i liMtdfcliut.'he:t;<«i;(ii- , rjY. miM'. '-).. •■■ /u.,'.. .;>. ',li',- sub. tv.u.i'tl part of the properly to oonsttlutean act of bankruptcy, but here a tubjtantiul pirt c>f the property was oxcli do 3, With reg .rd to the question of pr.. fereiice, Mr Malone explained the circumstances under which bis fi*m undertook Woodheai's ease, tellinghiaa that he must either pay c sh down for coss or give security, and that he had promise j to give wjcmity. His Honor: You prepared the dead and took care of youtse'.ves. Mr Malore submitted there was valid consideration, and, therefore, no ques« ion of fraudulent preference, Mr Spence replied, cmtendjsg ohe rweignment was an act of .bank* ■uptcy, although it did noli include all his property. He quoted cases to show that there must be equal treatment ol til creditors. There had been an attempt by the debtor to make a division jf his estate ics eid of leaving it for che creditors to doeo. His Honor said he would not trouble Mr Spence any further. He was of opinion the deed was an act of bankruptcy, His Honor went over the c ; rcumstances under which the deed was g<veo, ani said the deed was practically an assignment of the whole of h : s property, and was objectionable on two grounds -(1) It was against the policy of the bankrup'cy law for the debtor to dictate as to the division of bis estate; (2) The debtor had no right 1 1 secure debts or liabilities that Day . occur after the deed was signed, The debtor's estate must be wound up under the ordinary prooess cf bankruptcy. He thought the debtor was honestly trjiog to make restitution, but the parties did not aecapt ic. The order of id judication would be granted. The. petitioning creditors' oosts to be tared and pud out of the estate. On the application of Mr Bpenoe, His' Honor said he would mike an order au horisiog debtor to be brought from prison to be present at any mealing of creditors when necessary.

The case rf MoAHum v. Birnard, which was B.t do#n for tearing, mi struck out oa Mr Qailliam (for plaintifi) stating the matttr was settled, Mr Speoo* appeared for defendant.