IN BANKRUPTCY.

Taranaki Daily News, Volume L, Issue 60, 30 July 1907, Page 3

IN BANKRUPTCY.

PUBLIC EXAMINATION*

At thk B.M. Court yesterday afternoon, before Mr 11. S. Fixzherbert, S.M., Otto Huss, of Tataraimaka, a bankrupt, was examined concerning his position. Mr Grey (Wilson and Grey) appeared for the Deputy Official Assignee, ;,nd \| r JI. C. Hughes for the bankrupt. Mr Cirey, in opening, staved that in 1!K)4 the bankrupt gave to Mr F. \V. Wake, .if Stratford, a bill of sale over certain stock, without informing him j.hat it waSi already subject to a bill of Nile held by Mr C. T. Puindlc, of New Plymouth, and Mr Wake had subsequently to pay off this amount. Among other chattels given as security were :i4 dairy cows. These had subseoitcntlv disap|ieaivd.;ind the mortagagee had been uualile to obtain, any tiaV of them. Otto Huae, the bankrupt, now liviii" st Tataraimaka on his wife's property, iecognised the bill of sale given by him to :r F. W. Wake, and registered on 22nd April, 1004. There were in the security :14 dairy cows. Some of these cows wer" sold at the clearing sale, and for these Mr Wake had obtained the money. Jdr Gray ]iointed out then- were two i lots of cows, one of ">:i and one of ,".4. lie suggested that the cows sold were ; from the 53.

Witness said ho f li,l not at the time aw all the cows that wore mentioned ii tlio bill of snip. ]|p recognised the ill of sale given to C. '('. Rundle irior to Mr Wake's. The dairv cows 11 this bill of sale were in the hill of ale to Mr Wake. He did mi di-c!o.-c o Mr Wake that tho cows were under a 'ill of sale to Mr Handle, lie did not ;now of it. He got money from the Sank of Australasia at Stratford, and lr Fuokes was lixing the matter up. He old the l:,tter of the £OO mortgage, to tundl-, and he (bankrupt) thought iha ho bill was paid off then. The bank dvunwd him £IOSO. lie got this moloy to pay his bill—to pay Harris off. Ic did nothandlc any money himself, ftc money was paid over to Harris.nul ie thought the £OO was piid toKnnd!,.. buris was the man from whom le lought his farm of 140 acres at £l2 .n acre. He put no money in, but gave he Durham road property as collateral eeurity to the bank. The farm eoet £IOBO. He thought Harris got £OOO. 'he Advances to Settlers Office pot s me I' the money, but how much he could lot say. His book had been burned nth his house. He did not himself revive any of the £IOSO. Mr Fookes iad rendered him an account of She <\U-ios-kl of this money. He could not read: lis wife read it to him. He could :>ot ■emerolwr now whether that Account .howed that Bundle had been paid. He tad told the Bank that the bill of nale ■xfctod. When he don.lt with Mr Wnke ic represented the cattle an being unenlumbered. At that time his wife hold i security over his land, without regis, ered mortgage. He had borrowed from Ws wife, hut gave her nothing in writing. The 34 cows mentioned in the bill of sale were on the Durham road property, and they were left there. He know where they were now, and re thought he could get tivm in three or four days if he had help. He believM they were on Ithe Durham road pl.ieo now, or in thb Forest Reserve. The Durham rorid property had been sold 1 y thn first mortgagee (the Trust anil Agrney Co.), and the Mfoek was on the place at the time. He took no steps to remove the stock. Mr Wake told him ' he had no right to remove the stock. ' He (bankrupt) looked for lhi> «to-k. ' a.nd saw some of it, but did not take ! any away. He asked Mr Wake to send ' him a man to assist in getting the ' cattle away, but the. answer was that must do it himself. He could ntf ' do it himself. '

Mr firoy: Isn't it a fact that Mr Wake sent a bailiff for the cuttle ? Hanknipt: Yes. The bailiff said ho could find no cattle. There was a fence between the farm and the Reserve, but the falling frees had broken it dow.i. He bad seen some of the cattle, in {he. Reserve, but conld not bring them out. f.\ let tor from bankrupt's solicitor was put in, showing that of the 7 cows HO wem accounted for in Mr Newton Kincr s account of the clearing sale), flit- express was not in (the bill of sale. (The item was shown in the document). JTo arranged in October, 1005, to exchange his farm of 140 acres for his interest in it) for Mrs Roberts' section 1025, called "Woodlands," in the town of New' Plymouth. That exchange was effect*.!. He did not receive any money; he hid to pay '£loo. lie never received €2OO from Mrs Roberts. (Mr (; n . v had mentioucd that this '£2oo due to Huso . v .,s ►liown on the title deeds, searched that day). He arranged two mortgages on the town property, one of r £3oo and one of £SO. He was to receive £1)0 £lOO to go to Mrs Roberts, £IOO ••*• Harris, and £IOO to pav off bank 'iabilities of £123 10s 9d.' Prior to this he arraftged to exchange the town property with McMahon for 140 acres at Tataraimaka and 20 acres on 'the Oarrington ro:Ud. lie was now residing nn the 140 acres, now owned by his wife, ne had confessed judgment on a summons issued by Mr Wake. On December 12lh he gave his wife a mortgage for MOO. Ho did not receive any monev in (his transaction.

Was (ho giving of this mortgage anything to do with the issue of a charging order by Mr Wake?— No.

Tho S.M.: Then if you got nion.-y, why did you give the security? Bankrupt: I had already had the money. I received some of it as far as twelve or fourteen years ago, some nine, sonic fix years ago. My wife kept record of it. in a book.

The S.M.: ITas ithe D.O.A. got. that book?

No. It was burned in a fire. His wife hud hid private means—her own earnings. She had had no bank boik until recently. Mr Grey: Then how is it tliat your wife owns the property at Tataraimnka, for which you exchanged your town property!

The mortgagees sold me up. He was sold up by auction, but could r,ot say when, or how long after "the mo-t----g- to his wife. Oilmour bought tie place, under tho instructions of the third i mortgagee, bankrupt's wife He h.id 1 never been served with a copy of a - charging order issued by Mr Wake. Ho ' could not say how much his wife ga-.-e ' for the property. All this time, while these negotiations were proceeding, he liad lived on the farm at Talaraimaka. ' under the agreement of exchange with McMalion. Ho had no cittle th-'ve. ' There were about 50 or fill bullocks w, ' the farm, not owned by cither him or his wife. Ilis furniture'was there. Tim bigger portion of that was his own. and ' he had given a bill of Kile over it. His wife exchanged '-Woodlands" for "ie Taitarainiaka farm, but did not get the Carrington road place. From that dale the farm had been in the mime of Ms wife. Of the stock mentioned in Mr Wake's bill of sale he had brought only two horses to New Plymouth. He had sold some of that slock other than that disposed of :£ the clearing sale, lbhad, by permission, sold a horse and the express, and the money went to |.av oIV a caveat by Mr Hodgmann nt the Knupokoniii laud. Apart, from this, iiud apart from file clearing sale, ho had sold stock at Tariki bringing in £-10. That was by permission of Mr Wake, who told him not to miss a chance of selling well, and to pay the money to him or to pay it into t.hj> bank. Ho h:ul sold no cattle without Mr Wake's permission. He had sold no other cattle than those mentioned. ||i s stock was all Vrnndcd '-0.1 I." IWom lenvirfc.' Stratford in August, I'IOS, bo and his wife figured out that he owed her C>oo. The fire in which he lost his books occurred in lflfl!i. but n-1 before he give tho mortgage. Ilis wife, who started work at eight years of age. had £SO or W0 saved wlien thev married, and she saved another £IOO from dressmaking, and e s.rned C:! oor £lO by looking after an invalid. She also saved about £">o in nine years out of lier housekeeping allowance of 30s a week- She also raised poultry and cgtrs for sale, saving in that way. She ,i|il nol bank, but kept the money at home. Tin-re were 51 eattlo on the pres-nl • farm now, owned by his wife, bought I for her bv himself at the sales. lie | ; always let the vendor know the cows

wore lionsrlit f"<■ r liis wife. fvimo of t'u'-o hVI hcon paid fnr, ami n lull of fjilo issnotl over othi'i-J. Tin' liKmr.T fnr llic. ))iiiTlia«o of flic cattle l),v his wife carnn from royalties on stout?

takon by a contractor, grazing fe?s, rent of crusher site, cooking for the camp, ami going out nursing. He had nover sold ai cow to J. Simpson, of. the Norfolk road. He had sold a cow to Joe Simpson, on the Durham road. That was his daughter's cow, and that cow was not included in the. security given ■to Mr Wake. Tho £4O obtained by the sale at Tariki had been given by him to Mr Kirseh, at the Stratford Silver Grid, to pay into his (bankrupt's) ac-

count in tho bank. Kirseh shortly aflenvairds went through the Court, without having returned the money or banked it as instructed. Ho could not say if Mr Speuce had since recovered any of that money. Cross-examined by Mr Hughes: Mr Wake acted for him for about two ye..|rs, during which time he transacted a good deal of business. The hank had a claim of £IOSO on his land, and called it in. Mr Wake raised a loan for him, and guaranteed the balance required up to £350. Bankrupt drew t.p to £370. To get that guarantee he gtfve a bill of sale over bis stock. When he gave the bill of sale he bad not ihe 34 cows mentioned in the instrument. He. wauled the money to purchase the cows.

Mr Hughes :aid he. intended 'to hive .Mr Wake" in tho box. Mr Grey: You can't. He hasn't been

summoned. I Mr Hughes: Wo can get a snmmn.is. Mr Hughes added that he intended to show tfiai Mr Wake had treated ;,ho bankrupt with great severity. He bad even taken criminal proceedings against lluse, but had withdrawn them. Mr Grey said that Mr Hughes couid not attack the bill of sale.

His Worship said that these proceedings were not for 'the purpose, of attacking the bill of sale. That would hive to bo done in another way. Cross - examination' continued : Mr Wake did not apply the money as -,..r----ranged when he took the mortgage over tho New Plymouth property. He- o>ved Mr Wnke £SO, and the latter agreed to take a third mortgage on the Durluiiu road property, without charging for deeds or interest if paid off in three mouths. Mr Wake paid himself £.SO, iis well as £3 15s costs, paid £IOO to 1-tiirris and £IOO to Mrs Roberts. He did not reduce the bank account at all. The balance of the money went in agency costs, other than Mr Wakes. That was contrary to instructions. Hod Mr Wake paid off tho bank the cattle would have been freed. Mr Wake wrote to bankrupt that if he paid off the b:\nk thero would be little left for himself, and that was why he wanted a third mortgage on tho Durham road property to secure himself. At that timo lie wis living in Inglewood, pending the completion of exchange negotiations for a Frankley road property in which Mrs Wake was acting for him. Mr Wake afterwards said he wouldn't heir of the exchange proposed. By that he lost £540. Tho S.M.: What has this to do with it!

Mr Hughes: Well, tlie bankrupt has been badly treated. Mr Wake mad. 1 liim bankrupt, and I propose to sbw thai it was Mr Wake's own fniilt The bankrupt has his rights as a man. Bankrupt said he then went on to the Tatnraimaka property. The Frankley roi<l exchange, which failed, cost him £OO commission out of pocket. He had agreed with 11. Callaghan to exchange the Durham road farm for a place at Tiiratn, but that fell through, costing witness £2O or £.lO in commission. The Tataraimaka-Woodlands exchange was stopped by Mr Wake's charging order. The charging order was never enforced, but it kept the master pending until the mortgage's had to sell the place. Mr Grey objected to the line the cross-examination was takinsr.

Mr Fitzherbor; said that the enquiry wis for the purpose of informing the D.O.A- if there was any property of bankrupt's that he could lay hands on. Mr Grey: That's so.

The S.M.: And until that is done.Mr Hughes, and some action taken, T should think it better for you ami your client to keep your mouth shut. Mr Hughes su'd lie wished to clear up this point. Bankrupt said that Mr Gilmour advanced the monev for Mrs Huse to buy "Woodlands." There were three mortgages, amounting in all to £I3OO, on the Tataraimiku property when she bought, it, leaving little actual cash to pay. While living there he had earned his living by outdoor work of various kinds.

lie-examined: He. wis quite sure that Mr Wake paid Harris £IOO. If Mr Wake said it Has tI.V), that \v.i;!d be untrue.

Annie Huso. wife of tin- l>nnknip!, said she was the owner of the properly known as "Woodlands" in New Plymouth. She had had £3OO mortgage on if. for money lent by her to her husband at various' times in the past 14 years. The first advanee she made was .£l5O for felling the bush on the ■ Durham road farm. She hud also given him about CM drawn from her postoffice savings account. They largest sum she ever advanced was tfiO for felling CO acres of bush. She also lent him money earned and saved hy her in the various ways mentioned hy lier husband in his evidence. The mortgage given her hy her hushand in December, 1003, wis drawn because the other security, the probability of her hushand receiving certain money from lier brother, had gone. The farm and stock were all in her own name. Her husband did not suggest to her to take this mortgage. In all cattle transactions concerning the Tataraimaka fa rm the auctioneers had rendered necofn'.B to her. not to her husband. Rhc saw McMuhon herself and discussed with him the property exchange effected. None of the cows now on her farm had been brought in from the Durham road or the Opnnake road farms. The money for the recent purchases of cattle hail, been advanced by Mr Hughes.