DISTRICT COURT.

Wairarapa Daily Times, Volume IX, Issue 3014, 27 September 1888, Page 2

DISTRICT COURT.

In Bankruptcy.' (Before Judge Davey.) WEDNESDAY, SEPTEMBER 26th llrdcrs of discbarge weie gianted to <■ / Waller Morrison and Emile Mansen on llio Application of Mr OK/ Skipper, Ofliciiil Assignee v. Caslendyke and Focke. Mr Bnnny for plaintiff, Mr , s ' Skcirett foi defendant Tbis action was taken .to recover ■ the sum of £34 7a 6d, amount paid to ' defendants by the Eankiupls on or about 29th March last in tiro pro- s nnssdry notes nmde by Mrs Corbett: v■' v m favor of tho bankrupts, which were- - paid at maturity. It was sought to recover tho imount under clause 27 of the Bankruptcy Act, 1884, on the ground that the payment w#s made sail inferential one by the'bankrupts within tlnee months of the bankiuptoy, ' { Maty Ann Felling deposed that she X was the wifo of Frank Decring Felling and both had become bankrupts on'• tlieii own petition- Had beon four' ycaiß carrying on the businees. In i Mnroh lasi sold the business to Mrs Corbutt foi £IOB, including stock-in-trade £BB. ,Thn purchase money was- - paid by cheque £34, and two; billa £34, tho balance - .was rates and ■ rent owing. At ; time of '' : sale all the amounts furnished to the Official Assignee were. owing to her ■ cicditoi s. The cheque was paid away £lO to her brother, £lO to her fathet- " in-law, and the balance to her solicitor. lha bills she banded to Mr > Caslendyke, Her business had. been going back for quito two years, and v ; : got worse towards the last. Sold out because the business was not paying. It had not been paying within twelve months of selling out. Went to Wei- v lingtonsaw Mr Castendyke, handed him.the.bills and stated her positionTold Inm' who ber 'oreditors were and be took down the names and amounts.' It totalled up to over £2OO. 'Knowing that she owed Mr Caslendyke the money, shß gave him the preference of the other oreditors, Told him abo N could not see her way olear to pay her creditors and would have to file. He advised ber not to. "He said he would see them in Masieiton. Asked hni il he would take the promisory notdftit' •, of Mrs Corbatt's in payment of . liill becoming due to hiro in April. Mr Renall had pressed her for payment, • He had gone to Mr S'dlar's office - about ihe money. He was is-Mr Sellur's office when tho payment was mado. Told Mr Benall Bhe would , seo him at his mill and he only abused : ' , brand Mr Pelling, Asked Mrßenall to come to terms but ho would not. This wbb a week before she saw Mr Caslendyke at his office in Wellington. / ; Had nothing wherewith to pay her - creditors but the proceeds of thesale. Mr Caßtendyke was aware of that at ' the time she handed hiru the notesi [ . Her reason for paying Mr Castendyke • i was because -Mr Kenall abused her • 1 and would not come .to anyterms. Had no employment between the sale of the business and the bankruptcy.. Had offered a composition to ber i creditors of five shillings in the 1 Some outside person wbb going to ! the,money, They would not acceptthtS"' [ mbneyand being summoned had to fif*;.' Told Mr Castendyke that if pressea"'.. ,by hercreditora that bankruptcy would • ibo unavoidable. Saw Mr Castendyko . : i in Ma'sterton'at tho Club Hotel at his request. Mr Celling was :with her. - 'f hst waiT'lliß , Wollington. Mr Castendyke told them . ;ho did not want them' to file and • ' ; | would take tho balance of his account' : liu bil|s duly endorsed. She asked Mr ' . Castendyke whether he have to : . refund the promissory notes if thoy " : : tiled. He said he did hnUliinlr on

Cross-examined by Mr Bkerrett ; Wont to Wellington the day beforo Oastendyko and Focke'a bill became due, Met Mr Castendyke in the street, Went into hisofflce and gave him tho bills in payment of the bill becoming duo next day. Gave him a list of creditors in Wellington, and he wrote it out there. She had gone to ; Wellington on purpose to tell bim would file and to ask him to take thA, bills in payment of partofwbat wasT owing to him, Saw jiim in Maatortoii* % at his request, Told Mr Castendyke ' V that she.had sold her business, and tbut the bills were part of the purchase money, l . Mr Clstendyko recommended her to see Mr Benall, She hud disabused heraolf of any idea nf coining to terms with Mr fierall, Nio paid the money to Castendyke simply because she. o«red it If her estato recovered the money paid by her to Castendyke & Focke, the proceeds' would go towards paying tho composition oflVred on her behalf to the creditors. Mr Polling was jointly . • liable with herself to tho creditors. '

Frank Deering Pelting deposed that ha Imd, in conjunction with the last witness, been carrying on business for some ibree yearn. Th? business fell off during tlio last two years.: The ■ arrangements for the disposal of the - business were made .by Mrs Polling, He corroborated the ovidenco of the previous witness in respect to their liabilities. Mrs Pelling asked Mr Caalondyke if ho would not have to - refund the money for tho bills of MrsST . Corbett given to him, and he Bai<yfy "No." Their position ms gone in'to?\ and Mr Castendyke said ho would do anything rather see them file, He \ . was willing to take a composition. Cross exaoiinod by Mr Bkerrett: ItwasMra Palling who toldMrCastem dyke of their position,. He did not«• know where; the money was coming from to; pay the composition to his ' creditors of 7s 6d in the £,' i ' : ; ■ William .Sellar, Deputy .Assignee, deposed; Mr.Renall.waß in his (wit T ~... nc&s') office when he paid over to Mrs, . Polling the purchase money on Mrs. Corbett's behalf, Mr Kenall said to. Mrs Pelting, " What are you going to do about mo ?" Mr Benall was aware the payment was about to bo made'to Mrs Pelling and had apparently come to try and get what wasowing to him, Tliey came to high wordb, 111- • solicitor for Mr and Mrs Pelling, asjced him to cftlj a meeting of credl- i*■ tors and offer on his behalf 7e fid in'-• tbo£j,on condition that ho reoeived tho whole of the available aesets inflfc the estate. The offer was accepted, : ■. Cross examined ty Mv Slterrett: • Ho had agreed to hand over to Mr Pownall the whole'of the assets in tho ■ estate, and ho looked to Mr Pownall to pay the 7s fid in tho £ and to hold' the. Official: Assignco indemnified against any costs. Augustus Castendyke, defendant, deposed: He bad received two promissory notes from Mrs Pelling.'tq&da by Mrs Corbett, and had tm ' ' " ' by Mr Skenet,—Met Mm Polling in Wellington who said ' : she was not able to piy the bill due Apiil 4th. Told hoi- ;he would give • lier a . lull; assistance but that phe mukt meet, the bill. s?id % ha| no money bfltshu had t«o tytlla sho Bfcid .vfe might dtocouub, place tljj W -

to hor credit and reiiie tho "' bill, Slio 'Jul nut any what ill-' bills wero the proceeds of. Sim did not toll hor posiuon, efau did not say she was going to bio. Shu did not atiite what sho owed, nor imytbing as to lier po9itiou, except Unit things weni dull and h{)q could not meet tbe bill, unless ho discounted tliebillsofMraC irbutt's. f'ent on his regulur trip lo Musterbout the 3rd April. He lunint that lire Pellini' Iwd sold om, 'lliat whs tho first lie lind heard, Ho saw Mrs Felling in the evoning and had a conversation about the balance of uiouey owing to his linn. He (lid not writo out » list of hor creditors, On the following day ut Mr Felling, senrs, house they went into the question of her liabilities, and he advised her to mako a composition. They had four meetings altogether and on the second meeting at the Club Hotel boiho three days aftor his arrival in Masterton, [it was that Mrs Pelling asked him whether ho would not have to refund tho, bills of Mrs CorHis first intimation of the claim was after tho coinposition was made by the debtors. Cross examined by Mr Bminy: He looked at the billsaudsawthe endorsement was good and took them without comment. He took duwu a statement

at Mr Felling, Seur.'s house of their indebtedness. Ho asked what the were and wrote them down, consisted of furniture, book debts and the piabo. Charles A. Fownall, Solioitor, was sworn—Air bkerrett objected to this witness being put into the box for the purpose of contradioting one of their own v, witnesses. Ilia Honour decided to take tbn evidence as it whs only sn explanation, Witnesa explained that the estate was being oolleotedby him and banded to the Assignee, and when all was collected that could be the deficiency to make up 7s 6d in the £ would havo to be provided by the debtors, It waa under wituness' advice that a composition was offered by the debtors.

Cros3 exainioml by Mr Skerrett: A The vßtnto was being collected at the debtors: Mr Skerrett declined tocall'evidence and asked for a decision of the Court to lib given on the evidence. Mr Bunny argued that Mr Skerroit 'jifcas bound to show cause why an oi dei "uuld not be made and he would then have a right to reply. His Honor upheld Mr Bunny's viewa and Mr skerrett nrgued "his CBBfl. Judgment was reserved.