DISTRICT COURT.

Tuapeka Times, Volume III, Issue 219, 11 April 1872, Page 7

DISTRICT COURT.

(Before His Honor Judge Wilson Gray).

Tuesday, 9th April.

Brighton v. Ayling. — This was an action brought to recover the sum of £59, balance of account.

Mr. Gooday appeared for plaintiff; Mr. M'Coy for defendant.

£43 was paid into court, and " not indebted " was pleaded as to the balance.

From the statement of counsel, it appeared that the parties had been dealing for a lengthened period, and in February, 1871, the amount dne was £59. On that date (18th) the defendant gave to plaintiff a cheque drawn by Mansfield and Co. , Dunedin, in liia fivonr, for the sum. of £16 2s. 4d., for which plaintiff gave a receipt. The cheque was sent to Dunedin, and immediately afterwards was returned, dishonoured — Mansfield, in the meantime, having become insolvent.

Plaintiff stated that on the 18th February, 1871, he had received from defendant, in the course of trade, a cheque drawn by Mansfield and Co. for £16 2s. 4d. He gave defendant a receipt for the same. The cheque was drawn on the Bank of New Zealand, Dunediu He sent the cheque to his own bankers, the Bank of Otago, Duuedin, and it was returned, dishonoured. (Letter intimating same produced.) Upon return of the cheque, he intimated to defendant the circumstances, and returned him the cheque, at the same time asking him for the receipt . He replied that he had not the receipt at the time. Witness intimated

that it was of no consequence, that as he had credited him with the amount he would now debit him with same. Upon looking at his books, he found that he had not done so. (Frequent letters which passed between the parties in refer ence to the cheque were produced, in one of which Ayling held plaintiff responsible for the amount, as he had never received the cheque.) Whilst in Dun edin, a considerable time ago, witness had called on the assignee of Mansfield's estate, and endeavoured to get the dividend due on the amount, and as the cheque could not be produced, he offered to enter into a bond to indemnify him (the assignee) from all loss in the matter. The assignee was agreeabk, and wrote a form of bond, which, if signed by defendant and witness, the dividend could be obtained. Defendant refused to sign. Witness was satisfied that he had returned the cheque to. defendant. He had searched everywhere for same, and had not succeeded in finding it. Robert Ayling .deposed to his having given plaintiff a cheque he had received from Mansfield and Co., for £1G 2s. 4d., for which he got a receipt (produced.) That cheque was never returned to him. He had not sepn it since witness had intimated to plaintiff that he would hold him liable for the amount. Witness received dividends from Mansfield's estate on other accounts due, but could not get any on account of the cheque, as it was not to be found. Mr M'Coy addressed the court, contending that the loss was owing in a great measure to plaintiff's act in not using proper diligence in transmitting the cheque to Dunedin for collection. He had sent it to another bank to lollect, whereas he should have sent it direct to the bank on which it was drawn.

Mr. Gooday maintained that every diligence was used, from the fact that the post left the Teviot on the 22nd, and the letter intimating dishonour w.is back at Teviot on the 27th, so that not a moment was lost.

His Honor remarked that this was a case in which the parties should of themselves have come to some arrangement. Each had heard the statement of the other, and he would suggest to them the propriety of settling the matter amicably.

Mr. M'Coy hereupon stated that his client was agreeable to give plaintiff the sum of £8 and all he could get from the estate, each paying their expenses.

Plaintiff had no objection to come to any reasonable settlement — in fact he had always been averse to coming to court, and but for the usage he had received, the probability is that he never would have brought the matter before the court.

His Hoior suggested that the better course would be to give judgment for plaintiff for £10, defendant to get what he could from the estate of Mansfield and Co.

This was agreed to by both parties — plaintiff undertaking to give every assistance to defendant in recovering the amount of dividend due on the cheque. Each party was adjudged to pay his own expenses.

IN BANKRUPTCY. Tuesday, 9th April.

Re James Thompson Richardson. — This case was adjourned from last sitting to enable bankrupt to furnish accounts. He now produced the accounts, which were found satisfactory. His Honor said he had much pleasure in granting the bankrupt his discharge. Be Isaac Butterfield. — This case was adjourned from last court day for- the purpose of enabling bankrupt to furnish accounts, in accordance with the Act. The accounts were furnished, and found satisfactory. The bankrupt was finally discharged. Mr. M'Coy appeared for the bankrupt.

Wednesday, 10th April

J?e W. N. Gooday. — His Honor remarked that in this matter he had before him two or three notices of motion.

Mr. M'Coy moved that the trustees appointed in the deed of assignment be removed, find that Messrs Hayes and Harrop be appointed in their stead. He appeared on behalf of Mr. Craddock and other creditors. The Court required that he should produce an authority, which he agreed to do to-day. He had the sanction of creditors numbering 13 or 14 individuals, to the value of £200. He stated that it was the wish of the creditors to have the property sold and a dividend declared immediately. The present trustees would not do so. If a change of trustees were made, the creditors would have no objection to the deed. Mr. M'Coy further stated that the bill of sale held by Herbert and Co. over bankrupt's furniture was valueless, as it had not been registered ; and Herbert and Co.'s interest in the matter was averse to that of the body of the creditors. At this stage a long conversation took place between His Honor and the learned gentleman.

Mr. Gooday stated that he intended to lodge an amended schedule ; and as to the bill of sale held. by Herbert and Co., that firm had agreed to test its legality by taking the opinion of three legal gentlemen of Duuedin. He fuither remar'ied that the furniture was put obwn at £100, and his book debts amounted to £180. He was only 100 willing to give the creditors every assistance. (Mr. Gooday appeared to be a little excited, and was rather brusque in his manner.)

His Honor remarked that in his present position Mr. Gooday should havu spoken in another tone to the Bench. No doubt when he was acting as counsel for otters he could teniieiously maintain liis client's cause ; but his present position was very different, and he should act accordingly.

Mr. Guoday said he had intended no disrespect in any way

Mr. M'Coy contended that as ifc was clearly to be seen that Herbert and Co.'s interests were adverse to those of the general body of the creditors, Mr. Herbert should be removed from the trust. He therefore would ask His Hunor to appoint other trustees. He thought that by sections 207 and 227 of the Bankruptcy Act His Honor had the power to do so.

His Honor remarked that under the Bankruptcy Act the Court had large powers ; but had the Court the same power under the deed ? The Court hud no power but what the Act allowed. Mr. M'Coy contended that the creditors should have the power of. appointing

trustees. The arranging debtor niiirhfc appoint ml interim trustees in the first place ; but the creditors should have the vow» r of appointing the permanent one.s His Honour suggested that Mr. Gooday should make some suggestion that would meet the views of the creditors generally. Mr. Gooday remarked that he had nothing to do with the appointment of trustees ; the creditors themselves did so. He was willing, if Mr. Jamison wished to retire, to execute another deed appointing another trustee.

Mr. Copland here remarked that the deed was valueless, as it was informal, and not even signed. His Honor said that the learned gentleman was arguing from the English law, and not from the New Zealand Act, which is different.

Mr. Copland stated that Mr. Jamison never saw the document, and knew nothing about it.

Mr. Gooday remarked that the creditors were not taken by surprise, as they were consulted in the matter.

His Flonor said {that Herbert and Co. had a right to take possession under bill of sale.

Mr. M'Coy said they certainly had, if the bill was valid.

His Honour said they had a right to try.

Mr. Gooday observed that all the crediitors in the district met at his office, and approved of the course taken.

Mr. M 'Coy, at this stage, moved that if his Honor had not the power to appoint new trustees, the deed be thrown out altogether. The creditors had no wish toharrass the bahkmpt— quite the contrary.

(In the deed of arrangement there was a clause to the effect that the trustees should carry on the business for a period of eighteen months, and "Mr. Gooday stated that he offered to conduct the business for a salary of £3 per week.)

His Honor remarked that he had no power to change the deed.

Mr Gooday remarked that there would bo L2OO available in three months for division among the creditors.

After a lengthened conversation of no importance,

Mr. M'Coy stated that imder the deed the bankrupt, would be allowed LSO, under the Bankruptcy Act only L 25 ; and if a bankruptcy was declared, the estate would be speedily wound up. Herbert and Co. held possession of the house and furniture on their own behalf, therefore it was a loss to the estate, as the house might be rented.

ITis Honor, having gone over the case, came to the conclusion that he had no power to change the trustees appointed by the deed.

Mr. M'Coy thereupon asked that the* deed should be thrown out, as it was a frivolous one, and made for purposes of delay.

A short consultation took place, when Mr. M'Coy stated that, to save trouble and expense, and to expedite matters, the creditors would take 7s. 6d. in the pound. To enable parties to think over the matter, the court was adjourned till ten o'clock this morning.