WESTPORT DISTRICT COURT.

Westport Times, Volume II, Issue 277, 20 June 1868, Page 6

WESTPORT DISTRICT COURT.

Friday, June 12. (Before his Hoo. Judge Clarke). O'Brien and Party, appellants, v. Scott and Party and Mitchell and Party, respondents. Mr Tyler for the appellants ; Mr \V. Pitt for the respondents. This case has already been referred to, and was now resumed. The respondents' case was concluded, after which the Court adjourned till two o'clock. His Honor, on the Court reassembling, delivered a very careful and elaborate judgment, which he concluded by saying that he fully concurred in the remarks made by the learned counsel for the appellants, to the effect that any decision he came to must not be regarded as a slur on any other decision that might have been come to in a lower court, for in that court additional evidence might be, and had been obtained, and with this before it, it was not surprising that he (his Honor) had come to different conclusions on the different evidence. The evidence before the Warden did noc appear to be nearly as full as that heard on that occasion, besides which the parties had now had the opportunity of being fully represented by able counsel. After commenting on the equities of the case, his Honor said that he had come to the conclusion that in his opinion the judgment of the Court must be varied. Mr Tyler asked if it should be varied in the terms set forth by the appellant, which he read. Mr Pitt objected to that variation. His Honor thought Mr Tyler had better draw up a form of variation in the terms that he had already ex pressed, and. submit it to him for consideration and approval. Mr Pitt considered that this should be submitted to him first, and agreed to by him in accordance with his Honor's opinion, of which he had a note. Ultimately after some further discussion, it was agreed that the appellants should have a right to a full government sluice head of water, in the creek about which the dispute had arisen, and both counsel having agreed to this, it was arranged that a formal order to that effect shoidd bo submitted for bis Honor's approval. With reference to costs, his Honor thought that they should not be allowed on either side. Insolvency Jurisdiction. Final orders of discharge were granted in the cases of Win. Courtney, King and Cowley, Alcorn and Co., Ehrenfried Bros., 11. L, Kennedy, Peter Bossard, Wm. Nahr. The hearings of H. E. Campbell and

James Godfrey were adjourned t : .ll 11 o'clock this morning. On the motion of Mr Pitt the casos of G. H. Clutsam and Henry Wright were adjourned till the next sittings on the 18th of August. In the matter of Pierre Bossard, Mr Campbell put in an affidavit proving that the required notice to enable the bankrupt to be finally discharged had been sent to the Gazette, and that, in the absence of the receipt of that Gazette, every creditor had received notice of bankrupt's intention to make this application for final discharge. His Honor made an order for discharge, not to be taken out of the office till sealed and properly gazetted. Mr Tyler applied on behalf of Smythe and Co., in re T. W. Melville, under the 49th section of the Bankruptcy Act, which provided that no execution should be issued without the' order of the Court, after a declaration had been filed, that leave should be given for the creditor Smythe to avail himself of an execution which had been issued from the Resident Magistrate's Court—a warrant of commitment. He read an affidavit in support of the application from Smythe and Co. His Honor —ls your application against the property or the person. Mr Tyler—Against the person your Honor. The learned counsel proceeded to say that there were questionable circumstances connected with the case that induced this application, which he detailed, stating that the insolvent had filed three times since January. Mr Pitt said he had acted for the insolvent, and before so extreme a step was taken, submitted that the insolvent should have notice. It might turn out | that the insolvent could explain all, if an opportunity was afforded him. Mr Tyler pressed his application, and asked leave to call the bailiff of the Court, contending that if notice was given to the insolvent the application would be useless. His Honor said that Mr Pitt would take notice that Mr Melville must appear to-morrow (this) morning to explain matters, and Mr Tyler could then renew his application. Mr Pitt promised to give notice to that effect and the matter dropped. Mr Tyler in the case of Leach v. Jolliffe applied for immediate execution. His Honor thought he was rather late. Mr Tyler said that fourteen days were allowed. Mr Pitt thought the proper way would have been to serve them with a notice to show cause why immediate execution should not issue. His Honor did not feel inclined to make the order. The defendant might have gone away to make arrangements, and he (His Honor) d'd not think it would be just, on an ex parte application, to grant the order. Before the Court proceeded, Mr Tyler remarked that the next case, that of Mr Campbell, would take some time, and as it vvas then late would his Honor go on ?

Saturday, June 13. (Before his Honor Judge Clarke.) His Honor took his seat at 10 o'clock in Insolvency jurisdiction. IST RE 11. E. CAMPBELL. This was an application for a final discharge, and Mr Tyler, instructed by several of the creditors, appeared to oppose it on several grounds. Mr Campbell was called and said, I was resident in Hokitika before I came to Westport, and .came here last May twelvemonth. I did not owe £l7O to the bank when I left Hokitika, a portion of it was owingperhaps£lo or something like that, (Insolvent here looked at his bank book.) No, I find it was not nor any portion of it. It was an over-draft for a current account for which I gave them a mortgage on my house here. The debt to Churches is a Hokitika debt, and was due before I came to Westport. It was incurred about Christmas, 1566, the amount is £3O. Brown and Klein's debt, £ls and costs, was due when I came from Hokitika. It was really a debt of the Greymouth Tramway Company that they undertook to pay, but which they afterwards repudiated, and I was sued on it, and a verdict got against me. The debt of Harnett & Co was also a printing account for the same company, and was to be paid in the same way. The debt due to Munson was for stationery and books, partly incurred here and partly at Hokitika. Prossers debt was incurred at Queenstown, Otago, before I came to the West Coast. Howorth & Co's debt was for balance of agency costs, and was incurred in Queenstown. I wss not aware that I owed them more than £5 till they got the judgment. The next item £55 was for money borrowed. The examination was continued to show that this aud other

debts were of long standing, and were due clothes, wages, agency charges, a and other tilings. The item due Col- a lan, miner, is for money I have received of his, but I have £4 4s charges against s it. The debt of £4l to Munson and ji Tyrrell was due for general printing 'g account. It was not for advertising d for clients. I did not advertise for a clients. Mr Tyler examined the g insolvent at some length on the items g in this bill a large amount of which, £l3 odd, was for the Argyle Company. I Examination continued—l receivei § my costs in the cases of Gibson and Co. or Walker, to which some of the advert tisements refer. In the list of debts ( there are agency charges due to i' Howorth, Adams and Kingdon, Smith { and Denpsey, and A Pitt. I have not t received my costs from a long list of persons for whom these charges were ' incurred ; for instance, I never had a < penny from Gellibrand, for which A Pitt's charges are due. Some of 1 the costs I have received, some I have not. I have paid Adams and Kingdon ] on account several sums making £l2 but as I have before said, I have an account against thein. < The various agency bills were put into the insolvent's hands, and he was ( requested to point out what costs 1 named in them he had not received, , ond he pointed out several. Examination continued—l do not 1 know that any debts are due to me at 1 Queenstown. I have paid Howorth moneys on account, and Smith and 1 Dempsev also. The debt to Ranson and Clarke for £46, was for timber. I was sued for £56 13s 6d, but I had a contra for costs. I was sued by 1 Ranson for £l4, balance of money ( deposited in my hands. It is a portion of £2O on the purchase of the Imperial ! Hotel, and a dispute arose subsequent to the agreement. The parties refused to pay me my costs, and I was only allowed £6 by the Resident Magistrate, but there was £l2 due which they would not pay me. The £2O was in a cheque. It was to be kept a fortnight, and I did not cash it till the day it was due. It was a post-dated cheque, and there was no arrangement that it should not be cashed. The sum of £45 was due to the firm of Ranson and Clarke at the time. Ranson did not come for the cheque for a month, and then only offered to pay me a guinea, although the deed had been prepared. A. Porter and Ranson have said that I had no instructions to prepare the deed, but I considered that I had instructions, and the deeds were drawn before I knew they did not intend to carry out the agreement. The insolvent was then examined in reference to the sale of an hotel for Captain White, of which he gave an explanation, the substance of which was that he received the money for it, £22, but did not pay it to Captain White, because the bank into which it was paid retained it as a portion of his (bankrupt's) overdraft. He paid the cheque himself into his account. Hughes and Tonks' account, £2O 7s, was partly for board and partly for money borrowed—£l2 money and £8 board. The former item was borrowed on the sth of December, to be returned on the 11th ; and he made that arrangement because he expected to be paid by Miles an account which he did not receive. On the 23rd, owing to Ranson and Clarke pressing him, ho had to file his schedule. Fogo's account was £25, of which £2O was money lent on the 2nd of December, . and it was to be paid in a month. On ; the 23rd he (insolvent) filed his declai ration of insolvency. At that time he , was in hopes of selling a mining share ' at Addison's Flat, for £IOO, to pay off > these liabilities, but could not do so. . Since that time the share has been sold ; by the Court for £2O, and was now ; realising £ls per week. In the month l of July last year he received £l2O, of ■ which he expended £B2 17s lid. One ! payment was £2l 19s lid for timber ) in erecting an office. That item did s not include domestic expenses. The ! other items were all accounted for. In i August he receive' l £169, but out of r that one client's money was £BO, which ' he paid out of it. The sum of £42 set , down as petty cash in that month was , partly summonses, office expenses, and ; court charges. During the six months ; he had given a statement he had received s £914, but £l3 he had not charged, l which would reduce it to £9Ol, and this » left £ls unaccounted for. During that , time—the six months, he paid £242 ~j 4s 9d for mining wages claims. L The examination was continued at s great length, but nothing fresh was i elicited. It was vot concluded, when , the Court adjourned, in order to allow [ the Education Meeting to bo held. > On the Court reassembling the ) examination of Mr Campbell by Mr r Tyler was resumed and prolonged to - still greater length, but without show- " ing any now feature.

At its conclusion, Mr Campbell addressed the Court in explanation of a portion of his evidence. Mr Tyler submitted that lie had shown enough to substantiate his objection to the order of discharge being granted. Ho wont through the evidence given by the insolvent himself, and contended that on a variety of grounds the discharge should not be granted. Mr Campbell again addressed his Honor in favor of the certificate being granted. His Honor said he should adjourn the case till the next sittings of the Court. He thought there had been reckless conduct, and under any circumstances he should have suspended the certificate for some time. After some further discussion, his Honor thought perhaps he had better decide the question at once, and lie would suspend the certificate for three months. Mr Campbell : With protection your Honor ? His Honor: Yes. Mr Tyler remarked that in that case the suspension was of no avail. His Honor said it would do the creditors no good to shut the insolvent up in gaol, and the case terminated. In the case of T AV. Melville, MiTyler renewed his application for execution to be allowed to issue against the insolvent. Mr Pitt appeared to oppose it, and put in an affidavit showing how it was that the insolvent had filed three times. Mr Smythe was called in support of the application, and the insolvent was examined in opposition to it. Mr Calder and Mrs Trafl'ord were also called in support of the application. His Honor had a grave suspicion that there had been collusion and fraud in the case, and he did not believe the statements made in the affidavit. He therefore should let the order go. The insolvent asked his Honor to let him ask Mrs Trafford one question, viz., whether she had not been indicted for perjury at Brighton ? Mr Tyler would admit that she had, and had been acquitted. His Honor would greatly prefer that no proceedings against the person should be taken. The insolvent said that he would gladly work and pay £1 per week. If he was sent to gaol it would leave his I wife and children destitute. His Honor enquired what the amount was. Mr Tyler replied that it was £3B. Mr Pitt said he was placed in a 1 peculiar position. He was engaged as crown prosecutor against the insolvent, L but at the same time he objected to 1 his being persecuted, as it were, 1 through an interlocutory process. 1 After further discussion his Honor J said that after hearing the evidence of i Mrs Trafford and the other witnesses, he believed fraud was in the case, and * he should let the order go. ' The insolvent then left the Court ; but was immediately arrested and con- ? veyed to gaol. "\Vhen it was known . Mr Pitt addressed his Honor in very : warm terms on the subject, stigmati- " sing this as complete persecution. 3 Ilis Honor said it was clearly very 3 wrong. He had not even made out > the order, and it was evidently a laid » plan. ' Mr Tyler considered the arrest as 5 perfectly justifiable. ' Some very strong remarks were 1 subsequently made on either side, his Honor remarking that the course taken 3 was very indecent, after which the 3 subject dropped. In the matter of James Godfrey.— Mr Tyler applied that a sum of money, in the hands of the clerk of the court, 1 at Charleston, realised in the sale of * goods belonging to the insolvent, at the suit of Pizzey and Co., should be 3 handed to the trustees in the estate, for the benefit of the whole of the creditors. 2 His Honor directed that the money J. should remain in the hands of the Court till a further order was made. * After some other formal business, the Court adjourned sine die.