DISTRICT COURT, WESTPORT.

Westport Times, Volume VII, Issue 1050, 28 February 1873, Page 4

DISTRICT COURT, WESTPORT.

Fejjuuahv 24 and 25. before his Honor Judge Harvey.) Re Howard Tupper.—lnsolvent : plied for final order of discharge, ere was no opposition. Order _ i inted. Re Pell and Atkinson.—Mr Guinea, for insolvents, applied for final ier of discharge. Messrs Button .d Fisher objected thereto on behalf f trustees of estate and opposing creditors. The Court read notes of evidence _iveu by G. S. Atkinson at former . earing, as also of the Manager of the Bank of New Zealand, and legal nanager of Excelsior Company. Walton Pell, -examined by Mr Button, gave evidence as to books of partnership accounts kept at Christy's and at Larry's, from which the accounts filed had been collated. Filed one declaration 0:1 the 21st November, which was informal; then filed another on the -9th December. Mr 'Stitt stopped 'the Gazette advertisement of the first to allow more time for settlement, but we, that is Pell and Atkinson, had fully intended to file on the first declaration. The statement of account produced has been sworn to and filed by me as correct. It was made up by Mr Towndrow from the books kept at our two places of business, and also from another book kept by our storeman, W. Pace, but which book I had never before seen. From the first filing of our schedule, up to the 9th December, the firm received about £7O, the items of which will only appear in Pace's book On the 9th December there was at Larry's store £49 7s 9d in hand, and £39 3s 9d has been received since, less £5 15s—a dishonored cheque of the firm. Pace was paid £5 per week and his food. He had worked for us previously on the road, and took charge of the store on the 19th November. From the previous April up to the 28th August he had only received £6 8s 6d on-account of wages. He is down in the schedule for £BO. Since the 9th December, the date of our last Sliny, he has paid himself several sums of money out of the cash receipts at the store, and also paid other sums to myself and partner. In fact, out of £BB lis 6d, all he handed the trustee was our dishonored cheque for £5 15s. Witness had tried to get in cattle belonging to the estate, but could not succeed. There were six cows and four calves running in the bush. Authorised Pace to sell one stray beast to Williams at Fern Flat. Pace also, on the authority of witness, had paid away and received moneys after insolvents had filed their schedule. Insolvent was here examined as to account of Maxwell, Hamilton, and party, and also as to various items entered in scrap book as paid, but for which no corresponding items appeared in the ledger, but he could not explain them. Some.gold sold by Hamilton at the store was taken possession of by Atkinson, on the same day he also had £l3 in eash. There was no account kept against him in the ledger. They, insolvents, had been carrying on a large contract, receiving moneys to the extent of £SOOO or £6OOO, but kept no account except their bank book. No entries of such contract money appeared in any of the books nor in the filed statement of accounts, except the amounts each employee received either in cash or value. The bulk of the work was let to sub-con-tractors. At the time some calves were advertised for sale at Beefton, no trustee in the estate had been appointed, but Mr John Stitt, a creditor, had told witness to make the best of the property. Was induced to file declaration of insolvency, because Stitt Brothers had obtained judgment against self and partner for £4OO on dishonored bills, and on the -12 th November had issued a writ in. the Supreme Court. Did this to protect other creditors. Was at Picton at the time, and on return learned that Atkinson had given John Corr a bill of sale to secure a private debt. Two horses were sold on the 9th October to Seaton for £4O to square a contra, account for £3B 15s, witness, owed him, aud he,: witness, only got in cash 255. Telegram put in from Pell to Atkinson, dated >.Picton Nov. Bth, • " If horses not sold let Bill bring them • overland. Got twelve months earth- \ work, bring tent and blankets." In ■ explanation, witness said the i horses.were not delivered 1 to Seatjn, : and an.agreement was made at time . of sale that witness should get: them back siipon payment of cash. The horses wore delivered to Seatcn-about the middle of November, after-witness came back from Picton. Had-written to Atkinson telling him the terms upomwhich the horses were conditionally sold to Seaton. Seaton's account includod£l6 10s Id, money due :to Suisted. illo was not aware ofitbe transaction until after witness returned from Picton, and then concurred in the arrangement. The letter produced by Trustee dated 15th November 1872, addressed to Walton Pell, signed Suisted Brothers, is an application for payment of'the money owing them. Witness had never seen the Jotter before. Would swear positively that the horses were not delivered until the middle of Nov. Atkinson gave Thomas Field a government order for £76 on the 13th or 14th of November, a day or two after the bills given to Stitt Brothers had been dishonored. Referring to his private estate, witness said the assets consisted of book

debts £249 9s 9d, but of which no statement had been filed. The books had been handed to trustee, but previously had been in H. T. Towndrow's possession. One asset 500 shares in Rose of Lancashire claim, £SO, had .cost witness £6. It was worth little _or nothing now. The cr6p on Garden Island witness had put down as worth £7O, and considered it his because of verbal agreement made with Martin 'the lessee. The agreement was to supply, the lessee with tables for his hotel, and clear a certain quantity of ground. Witness to receive the balance of the crop, and use the ieland as a run for his horses. Did not put in enough garden crop to keep Martin supplied, and he cancelled the contract. There was half an acre of potatoes and two and a half acres of grass. Pigs, ducks, and fowls running there had been put down as worth £5. but witness owed Winter £3l odd, balance of wages, and had given him an order to hold such live stock on account of wages. The bank book produced contained items for large amounts which did not appear in the schedule filed. Was not in partnership with James Fletcher, although the printed billhead produced, headed " Pell and Fletcher," was used by witness and Fletcher, apd printed by order of witness. They worked as carriers together, and shared equally in the profits, the accounts being kept by Bromage Williams. At this stage of the proceedings the Court adjourned until the following day. On resuming, John Corr gave evidence as to bill of sale signed in his favor by Atkinson as security for £l5O ; the schedule of such deed including as items of such security, two cows and their calves, two pigs, a parcel of land, 2a lr 32p, half moiety of land leased by mortgagor and Francis Courtney, at Orawaiti, for 21 years, as also Tramway Inn, furniture, and stock-in-trade. By Mr Button : The deed was executed on the 13th. The letter produced, dated the 14th, is in my handwriting, and is a notice to Stitt Bros, calling at their store a meeting of Pell and Atkinson's creditors to be held on the 15th. A portion of the amount due by Atkinson was on a running account. The rest was for wages to men on Garden Island, which Atkinson guaranteed to repay me. Timothy Gallagher : Had purchased goods from Puce at the store at Larry's, during the bankruptcy of estate. There had been a running account between witness and Pell and Atkinson, and witness gave Pace a cheque for £7 to balance the account. Pace got beef from witness after the bankruptcy, for supplying the store. Witness also gave evidence as to cattle belonging to the estate. By Mr Guinness : Pell's cattle were wild, and Larry's Creek is a difficult place to get them mustered in without the aid of horse and dog. Got no cash for the beef supplied to Pace. The transactions between us was more of the nature of exchange, each supplying the other with goods as need arose, when the boats were delayed in bringing up stores. It was a mutual accommodation transaction, and we occasionally struck a balance of our accounts. John Corr re-examined by Mr Button.—Eeferring to my ledger, I see that on the 13th November Atkinson owed me £3O 7s 3d, a balance on transactions extending over three years up to October 24th. The balance of £l5O is Pell and Atkinson's account, including £73, which Atkinson had guaranteed. Had Stitt Bros., on the 13th, consented to accept a bill of sale on the Larry's Creek property, the insolvents would not have filed their schedule. When the bill of sale was given me by Atkinson the insolvents only owed me £lO3 7s 2d, since then goods have been supplies to Atkinson, making the total debt £144 19s 3d. I am not a creditor of Walton Pell for £43 14s, although the item appears on his schedule. He owes me £3 4s only. Of the £73 mentioned, £4l 6s was paid in four various amounts for wages to men on the Garden Island. By Mr Guinness : —The monoy thus advanced was for Pell's private account. The difference between £4l 6s and £73 is made up by goods supplied the firm. I have never signed the bill of sale. By Mr Button : J got a cheque on the 2Sth September, for £279 from the firm. The actual balance then was £279 19s lid. I received £62 5s on July 11. After the 28th September I refused to give any more goods without a guarantee, as the insolvent's contract was nearly finished. George Snow Atkinson.—The final statement of accounts produced is as near as I can tidl, correct, as to the condition of my estate. I had contract work with Pell, for £5600, but the statement contains not a single item referring to those contracts. The total receipts shown are £2116 19s lOd, and refer to our store accounts alona. The Court said the reckless manner the accounts were sworn to was perfectly awful. The insolvents were ready to swear to anything. Examination continued, —Do not know whether book debts £355 18s 7d appear in the schedule or not. Between 22nd Nov. and'9th Dec, the interval between the first and second time of filing schedule; wa* negotiating with Stitt to mortgage property at Larry's. During that 'time received only £l2 from Pell and £3 for Excelsior scrip. Sold no stores, cows, or gold in that interval. Had £l3 on

the 18th November, which was paid away to Beaaley for making out accounts, and to other persons. The particulars do not appear in my schedule. Beasley got £2 per week and kept our books. Pace afterwards got £4 per week and his keep. Beagely was the most competent man of the two. I discharged Beasely on the 12th Nov., and on the 17th put Pace in charge of Larrys store. On the 22nd I filed declaration of insolvency. I did'not send Pace word of our insolvency, but told him when I left that I expected we should file our declaration. We then owed him nearly £IOO. By Court.—Pace has not proved his claim for either the £BO on the schedule of the firm, or for £2O on 'the estate of Walton Pell. By Mr Button: Brought away the books from Larry's when' I left Pace there. Don't know what has become of the money taken in the store afterwards. Ou October 9th bought two cows from Dougherty for myself, paying him with a cheque signed Pell and Atkinson. Those cows and the two calves were included in the bill of sale to Corr. One item of £l5O in my statement of private assets, is no good, the creditor, Howard Tupper, having gone insolvent. I suspected that on the 10th or 12th of November. The land put down at £2O is held as security by the mortgagee. Beyond the lease of that land, the property included in Corr's bill of sale, the bad debt for £l5O, and a share in the Excelsior, sold for £4, I had no other private property. I owed Corr £3O odd, and gave security for £7O either for Pell or for Pell and Atkinson, I don't know which. I have increased my liability to Corr since signing the bill of sale. At the time I gave Corr that security I owed Jules Simon £IOO on a dishonored accommodation bill for Howard Tupper. By the affidavit appended to my declaration of insolvency made on the 9th December; I swore that I then owed J. Corr £l5O, but it was only £lO3. I got the balance of goods after filing my schedule. By Court: I did not take the trouble to go to Corr's store to see my account; he told me it was about £l5O and I made no further enquiry. By Mr Button: Various sums of money I received are not mentioned in my accounts. The book produced is one my wife kept at the Tramway Hotel. She had £54 in the bank, which she has drawn out and kept for herself. I knew this but did not tell the trustees of the estate nor any one else. 1 sold part of the goods of my creditors to keep myself and family. My wife paid £ls for repairs to rolling stock of tramway I have leased with C. Bishop from Seaton and Davidson since my insolvency. In October 1 sold a half-share in a monkey piledriver to J Munro for £8 10s, upon condition that I should get it back upon repayment of the money. £2O paid to Suisted by cheque does not appear in my accounts. There is a debit against myself for £6O, and a credit for the same amount which I cannot explain There is also an item for £135 household and travelling expenses. The Court: It will be necessary to make out new statements of accounts, the present ones are totally unintelligible. The insolvents seem to have employed a man who know nothing of their transactions, to make out the statements, and to the truth of which they have sworn indiscriminately, without looking at them. By Mr Button: Lent £2O to a man named W. Hall, which does not appear I had a mortgage for £IOO from a man named John Hall at Mana kau heads William Hall also lived there, but he never got more than £2O from me. I cannot explain the letter produced signed William Hall, wherein the writer says he had received a letter from A. Stitt, but did not know what to do or what to acknowledge, being afraid of the consequences until advised by insolvent. Gave Thomas Field an order for £76 on the 13th or 14th November, the same dav as Corr got the bill of sale. Stitt's £4OO bill was dishonored on the 13th, aud on the 14th the circular was issued calling a meeting of creditors. Mr Guinness: Was not present when Pell gave Stitt Bros, the two bills for 200 each. The property at Larry's Creek offered them on mortgage was then worth about £250, the net proceeds of the sale since was £125.. I refused to sign the mortgage because of the terms proposed. Stitt delayed the publication of the Gazette motice of our insolvency without my knowledge. The Court: That is easily understood, as being done to save the reputation of the firm. The evidence of Beasley, as given at last examination was read. William Pace: Previous to taking charge of store was working as ganger for Pell and Atkinson at £5 per week aud tucker. When engaged in store only got £3 per week. Before going to the store had only received about £6 on of wages. Atkiuson on going away never said anything about going through the Court. I knew nothing of it until told by Mr John Stitt that there had been a bit of a barney about the accounts. Only heard of their actual insolvency about the 23rd December. On tho 30th December sold a cow belonging to the estate for £7, and put the money to my own credit on the 4th January, taking on the same day £l2 also in cash. (Examined as to Maxwell Hamilton accounts, witness could give

no precise information, Btating that he had never before kept boohs of account.) Afterwards debited myself with various amounts as wages up to 13th January, amounting in all from 19th November to that date to £57 lis 6d. The last item, £7 lis 6d, was all the money in the „till on that day, with the exception of a dishonored cheque of the firm, which was handed afterwards to the trustee of the estate. Pell also got some money; £6 was paid to Hudson for wages, and Atkinson got £l2 for his expenses coming up from Westport. Other money was paid for trade expenses, and for beef eaten by myself or sold in the store. By Mr Guinness : Pell told me to sell the goods at fall price, and not sacrifice anything. By Court: Pell had told me also to sell the cows if 1 could find them. The Court ordered that further hearing should be adjourned until next sitting of the Court, for the production of full accounts of insolvents, both as regarded their private transactions and their contract, in conformity with the 112 th. section of the Act. The insolvents seemed to have ignored all straightforward account of their tran. saction under extensive contracts, and merely shown imperfectly an account of their auxiliary store trade, of which the accounts had been sworn to in a reckless manner. On application of Mr Guinness an order was made for statement of accounts in joint estate from the commencement of the partnership on road contracts, and on private accounts of each insolvent for six months past. The Court also said that the bankrupts and their servants would be held liable to refund to the estate all moneys appropriated since date of filing schedule of insolvency. The Court was then adjourned sine die.