DISTRICTCOURT, HAMILTON.

Waikato Times, Volume XXII, Issue 1826, 20 March 1884, Page 2

DISTRICTCOURT, HAMILTON.

Tuesday.— (Before His Honour District Judge Smith.) In Bankruptcy. In be Henry and Allen.— Mr O'Neill applied on behalf of Peter Henry and William Allen to have them adjudicated bankrupts under the new Act. The court made the necessary order. In be William Black. — Mr O'Neill made an application for an order of discharge in the case of William Black, baker, Hamilton. The order was granted. In re William Cumming.— Mr O'Neill (Whitaker and Campbell) applied for an order of discharge under the 184 th section of the Bankruptcy Act.— Mr W. M. H.iy appeared on behalf of Messrs F. Winter, J. S. Buckland and himself, opposing creditors. Mr O'Neill took a preliminary objection that the notice to oppose was not sufficient, but his Honour thought it was. MiO'Neill then proceeded to open the case. The trustee's repoit was, generally speaking, favourable. Tho causes assigned for the bankruptcy were the depreciation in the debtor's property, losses in business, his having to pay £300 per annum on borrowed mouey and speculation in mining. If any moie lejjimate causes for bankruptcy existed he would like to know what they were. The opposition was a rather spiteful one, as would be sf en by the last paragraph in [the trustee's report, iv which the " indecorous conduct of the debtor in driving a buggy and pair about the streets " was referred to. The accountant who had assisted the trustee, and who was the only man who knew anything of the books was in Couit, and could explain how matters stood. He called the debtor. William Gumming, who on being deposed : — I am a brew er \-ehidiner in Hamilton. I have given up all my property to my creditors. I had a communication with creditms re my di-chargo. I saw Mr Hay on the night of the 20th February at Halley's Hotel. 1 a-,ked him how much further this persecution was likely to go ; the trustee during my absense, had taken aie inventory and had summoned me before him. Mr Hay said. " Did not you settle this matter by giving the P.N. to Winter and myself at long dates." Winter i-. an opposing creditor. I said I could not do so. He told me to think the matter over and see him the next morning. I went at 10 a.m. and Mr Hay was engaged with the trustee. After some little tune the trustee came out and informed me that I might go in. I went in, and Mr Hay said the arrangement they had come to was that if I could get a friend to buy Winter's debt and his- for £20 anil £25 repectively, at 12 months he would settle the matter. He informed me that if I could not do this there was a legal difficulty in the matter, and I would not get my dischaige for two. He said the trustee had informed him that Winter would take £20 for hisdebt. I told him Iknewof noonewho would do it or whom I would like to ask to do it. He suggested Mr Cussen, my brother-in-law as a likely paity. After thinking the matter over I said I thought he would do it, but remarked that he was in Auckland. Mr H.iy said I could bend a telegram. I said I had to appear before the trustee at 10 oclock. He said, " Oh, that's nothing ; that can be adjourned," and it was ad|ourned till 2 o'clock, pending the receipt of a leply to the telegram which I was supposed to have sent. I said I did not know how to word the telegram so that Mr Cussen would undei stand it. Mr Hay thereupon drafted it for me. (Produced.) I saw him write it. It runs :— " Think I can arrange w ith mycreditois if you will purchase Hay't, and Winter's debts by P. N. at 12 months— £2o and £2"5, respectively." This is the draft of the telegram 1 was to send. I appeared before the trustee at 2 o'clock. There was no reply to the telegram, and they decided to postpone the examination for a week, as .also the meeting of creditors. The meeting was consequently adiourned. I think Mr Hay knew Messrs Whitaker and Campbell were my solicitors. I saw Hay again on the morning of the 22nd, when he blamed me for giving Mr O Neill the copy of the telegram. Hay -.aid : " I thought I was talking to you on the square." I replied that there was very little square about it. This wa~> the thiid time Hay lias made a proposal of this kind to me. I have lost a great deal monpy < f late years through the failures of other pi 1 pie. I was a large creditor in the estate of Capt. Dawson. During the last six years I have lost £2000 in business. The buggy I was said to have driven about in indeci rously belongs to Mr T. Macky. My failure to attend and be examined by the trustee, as complained of, was owing to a misui derstandin?. Mr Hay's account is much 1. rgor than it should be. Mr Hay said the accounts as proved had been accepted by the trustee. Mr O'Neill said he had shown collusion betu cen Mr Hay and the trustee His Honour said that would not alter the case. Examination continued : I have seen aev ral other creditor^ about proxies. I su\ Mr Wiseman and Mr Buddie in Auckl.ii d. They had given their pioxies to oj pose, and Wiseman told me that he did so because he had been told that if lie 0 posed he would get a dividend. Mr 1 uddle (T. and S. Mori in and Co.) said I ' ad money. Cross-examined : Prior to going to you on the 20fch I had not been on speaking terms. I met you at Hally's. I sent for you to the billiard room. I did not s-ay I wished to speak to you about my bankruptcy as a brother Mason, or as man and a brother. I said, "As man toman." Ido not know how long the interview lasted. The last words you said were: "Think over the matter;" not '"I will think over the matter, and see w hat I can do consistently with my duty to my client." You suggested the giving of the promi^ory notes. There was no witness present, You said there was a legal difficulty in the way of getting my discharge. I will swear you said the trustee had said Winter would take £20. I would not swear to anything. I did not send tha telegram you drafted. I did not say I had sent it, and you never asked me. I have not boasted about laying a trap for you. You laid the trap for yourself. It is about three yeans since Capt. Daw->on's bankruptcy. I have been living since my bankruptcy on money belonging to my son, which he has had in the Savings Bank for ten years. He is nearly 14 years old. I hope to repay this money some day. A piece of land was bought for me at Te Aroha, but nothing was paid for it. I have no property at all. The evidence given by me before the trustee, and produced in the minure-book is true. Regarding Winter's debt, I do not remember when I got the goods from Winter. It might have been November, 1882. I believe I had a license to sell the spirits when I got the whisky from Winter, but cannot say. I told Winter at the time that I would have to sell a portion of the whisky under his license. It was bad whisky which he could not sell in Auckland, and he forced it upon me. I did not get it upon consignment. Mr O'Neill was about to call Mr T. C. Hammond, the accountant who assisted the trustee, when Mr Hay objeoted ; the aot only made provision for the examination of the bankrupt. Mr O'Neill said the 184 th section provided for this. His Honour ruled that Mr Hammond's evidence could be taken. T. 0. Hammond, sworn, said I have examined the debtor's books, and prepared a report on behalf of the trustee. The books were not kept so that I could not make a correct bala.nc.e-sh.eet. I told the trustee that the causes of the bankruptcy were depreciation in the value of the property, losses in business, the amount of interest to be paid, and speculation in mining. This was the case for the debtor. Mr Hay called 3T. J. Yon Stunner, the creditors' trustee, in support of his report. Witness being sworn, said : The report is a fair one to the best of my ability. I could not get sufficient information to make a balance-sheet. The bankrupt told me that he had destroyed a lot of papers. I examined the debtor, Mr Hay, Mr Knox, and Mr Kirk. The last witness examined the books. The debtor's driving about in a buggy was re» marked on b,y seyeraj people, creditors and others. lAm Mr Winter's proxy. I knew nothing of the arrangement about the promissory notes at the time. Mr- Hay wished to put in as evidence the sworn statement made by him before the trustee. Mr O'lfeill qbjecte.d,, sfcs he had not hsc[ a_n opportunity of cross-examining the wit ness, His Honour ruled that the statement could not be accepted as evidence. Mr Hay would have togo into the box.. W. t M. Hay, , sworn, deposed : Mr Citmmirig Went to my house on the evening of H;he f 2otih, and afterwards sent f6r me, and we went to a room in , the hotel. He asked m,e,whyJ',was^after him ao bit^ejly, and I said I was opposing him ;profosaiqn,ally for Bfr Wiwtor, H.Q attid, ha wa^ w* »s *

man and a brother to* see whether anything could not be done to withdraw the opposi 1 tion. I told him that I didn't think Winter would withdraw the opposition without consideration, and he said he had none to give. Ho pressed me a great, deal to find out some means to induce Winter to withdraw, and after having been with him nearly an hour, I said I would think overthe m itter during the night, whether there was any legal means by which I could assist him constantly A\itn my duty to my client. There was .something said about P.N.s, but so far as I know no amounts were mentioned. He came to me next morning at my office, and I told him if he could get a friend to purchase Winter's debt and my own, that ho would no doubt be able to obtain a majority at the meeting of creditors. He then fixed upon Mr Cussen as one who would guethe P.N.6., and asked me how he should word a telegram to him. I worded the telegram in way m which it came before the Court. He took the memo away without my permission. I saw him several times that morning, and he said he had sent the telegram but had got no reply. At this time I was acting for Mr Winter alone. I said that when a proposal was made by Mr Cussen, I would submit the matter to Mr Winter. No proposal was made and I did not submit anything to Mr Winter or his representative.' Neither Mr Winter nor Mr Yon Stunner knew anything of this matter until it was all over. Several times dimming told me he came to me as a man and a brother. I am quite sure of this. The evidence in the minute book is conect. Cross examined : I am a bairister and solicitor of the Supieme Court, and the senior member of the Bar in Waikato. When dimming came to me on the 20th I knew he had legal advisers. He did not come to me as a client, he came to me as a Mason, dimming suggested that he might be .ible to pay sometime or other, and I said something about a P.N. I asked him to come to my office the next morning. I said if I could help him, consistently with my duty to my client, I would. If dimming had satisfied Winter and me, and my debt had been assigned, I could not have opposed him. If he had done as I wished I don't know what I would have done. The matter never arrived at that stage. I told dimming the debt would be assigned if Winter wished to bell his debt. If it had beeu assigned I would have had no power to appear in the matter. Mr Knot's evidence as in the minute book was admitted. Mr Hay, for the opposing creditors, said, before commencing his address, he wished to point out to the coui t that the application, baing under the 184 th section of the Act, it was not competent for the court to make an order if there was any objection, and in this case there were many. His Honour said the objection must be a valid one. Mr Hay then, at considerable length, gave the leasons why the banluupt's discharge should be lefused, and applied the law to the facts as proved in evidence. The first objection was the con ti action of Winter's debt. Winter stated that the goods were had on consignment. The debtor said they weie puicnased by him to sell again, and he sold them. There was, however, this impoi taut fact that was proved, that at the time the debtoi suld lie had no license to sell spirits, and the goods must have been sold by him as Wintei's agent, and he should have accounted to him. The Bicond objection was that the debtor had claimed that the executors of a gentleman lately deceased owed him. money on a bill which the debtor said was a trade bill, but which theie was abundant evidence to show was an accommodation bill (-^ee Kiiok'i evidence). The thiid objection was that the books were in such a state that no balance - sheet could be made fiom them, and that the debtor had shortly befoio iilmg, burnt some of his b ioks and papeia. The fouith objection was that he had as far as possible swept away his propeity by moitgagmg it and had obstiucted the trustee in leahsing his furniture and brewery plant by misconduct at, the sale, whereby an asset of about £3)0 was 10-,t to the cieditors. The fifth objection was that the debtor had tried to mislead the court and the creditors by swearing an aitidavit, showing that his assets exceeded Ins liabilities, when lie well knew that th"ie weie no assets at all. The court in his (Mr Hay's) opinion had a choice of re.i-.oiw foi ltjfuxinar the debtor's discharge. Fn>t, the misconduct before refeired to; second, that there was no estato available for distribution amongst the creditors. The Act contemplated the debtor having an estate, and the word '"property" and "estate" occurred frequently throughout the Act. If there were no propeity or estate there could be no trustee. Mr Justice Gillies had always mled that the Act did not apply to debtors without assets (vide re Quiulan, New Zealand Heiald, 13th Match, 1884.) Even if theie happened to be a small estate, the Act did not apply. The English decisions were in point, and the refusal of registrars to register resolutions where assets weie insignificant was almost uuiveisal. In le Page E\ paite Page, Law Journal 45, le Terrel E\ paite Ten el, Law Journal 4G were referred to, but E* parte Staff re Staff, Law Journal 41, Bankruptcy 137, and the leuurks of Chief Judge Bacon therein were pi incipallv relied upon. The Chief Judge said: ''This is a somewhat audacious appeal. The Comt of Bankruptcy will liitt allow its machinery to be used, simply on the debtor's own statement, to promote iniquitous and idle appeals of tins de^eiiption. Tho whole a>sets arj stated to consist of £2 Bs, and the furniture estimated to pioduce £30. The whole thin_r is a mere abuse of proceedings in hankruptcy, and the appeal must be dismissed with costs. As t > the personal matter between himself and the debtor, he had simply to say that what he had sworn to was tiue m every particular. He did not think the coui t should, under the ciicumstances, and in the face of the trustee's rejjoi t, sanction the discharge of the debtor. Mi O'Neill replied. He claimed that the debtor had an estate. The book debts amounted to about £700, and if the trustee did his duty, the estate could be made to produce a fair di\ idend. The fact of the matter was this : If the debtor had only fallen in with the scheme of the opposition to give promissory notes for £45, no difficulty would have been placed in the way of his getting his discharge. His Honour said he would read over the trustee's repoit and the evidence, and give his decision in the morning. Yesterday morning his Honour said that, after looking into the case he had come to the conclusion that he would make no order, but would leave the creditors to take what action they pleased. Mr O'Neill : I presume that application can be made again. His Honour: I suppose so. I know of no reason why you should not. Mr Hay : In the meantime the application for an order is refused ? His Honour : Yes.

CIVIL CASE. G. F. Millars v. J. and W. Sinden, claim £73 for timber supplied. Mr O'Neill for the plaintiff, and Mr Napier for defendant, William Sinden. James Sinden admitted the liability, and the defence filed by Wm. Sinden wa& that he had never been in copartnership with his brother. For the plaintiff Mr Winstone, agent of the Bank of New Zealand, Te Awamutu, deposed that an account had been opened in the bank in the name of "J. and W. Sinden," but it was closed in January, 1883, and the balance remaining was placed to the oredit of James Sinden. Mr E. L. Hope deposed that the brothers Sinden were commonly regarded as partners. Witness had driven defendant, Wm. Sinden, between Te Awamutu and Alexandra on more than one occasion, and Sinden had told him to put the amount of the fare down to "the firm." The defendant, James Sinden, alao gave evidence in support of the contention that a partnership existed, and had never been dissolved. In cross-examination he said it was agreed when his brother left for Auckland that witness should give him £120 for his share in the business (a blacksmith's shop at Alexandia), and that the partnership should cease from the time the money was paid. This money had never been paid. Witness' brother had ordered a. portion of the timber, and had benefited by the whple. He was not on good terms, with his brother, but he had never expressed a wish to see him ruined. In re-examination witness said his brother's solicitor had made | mproper overtures to him. Mr Napier wished witness not to appear that day, and promised him to put him through the Bankruptcy Court in Auckland. The evidence of the plaintiff was to the effect that be had supplied the timber to the firm. When James Sinden gave him a promissory note, witness desired to know why Win. Sinden had not signed the bill also, but James told him it was all right as both were liable. The defendant, Win. Sinden, denied the truth of James Sinden's statements. When witness and h,iq, brother came to Waikato the ag^e&inent made/between ,wa? that if within twelve mqn.wa we business proved that if was en^U far |wo witn,^ ws ft tewgfc 4

.■ 4 , ' / 1,1 » 11/ Ij partner. He made the banking account' a joint one to protect himself, as h8 had advanced his brother £45. Mr Napier quoted authorities to show that Win. Sinden could not be considered a partner, and that even if he were purchasing timber did not corns within the scope of the partnership. • Mr O'Neill replied that both defendants had purchased timber from Millars. After some further argument his Honour reserved judgment.