ENGLISH ANCESTRY
*A note about references: Hovering your cursor over a reference number will produce a tooltip (if your browser supports them) denoting the reference being used, clicking on the reference number will bring up a popup window, with further details on the source of reference: Each individual reference number refers to one source, though it may be the source for multiple pieces of information and therefore used multiple times within this site.
 
shim shim shim
James BUTLER[21][29] shim Jessie MCAUSLAND
None Available 1st marriage
14 Nov. 1849[21],
Melbourne, Victoria
None Available
b. abt. 1817, Warwickshire, Eng
d. 3 Nov. 1889[21],
Seymour, Victoria

Father: William Butler
Mother: Catherine Huff/Hough

 shim b. abt 1823
Scotland
d. ?
?

Father:?
Mother: ?

Notes:
"James Butler, Seymour, was born in Warwickshire, Eng, and arrived, in 1837 , in Sydney, N.S.W., whence he crossed overland to Victoria some time afterwards. He started the first brickyard in Melbourne, and carried it on for eighteen months, when he moved to Heidelberg and conducted a similar business for a while. After that he had a ferry on the Yarra, but giving that up, worked on stations for a number of years. In 1852 he went to Seymour, where he has ever since been engaged in farming, having also had a hotel and butcher's shop for some time. Mr. Butler has at present about 400 acres of land, and seven valuable town allotments."(Ref: "Victoria and it's Metropolis" - Past and Present - 1888).
 
After arriving in Seymour, James was soon farming on some of the earliest suburban lots brought by John Clarke and others. He grew good crops of wheat and oats, on the area bounded by High, Crawford, Tristan and Wallis Streets.
In 1885, this area was surveyed and cut up for building blocks.
 
Jessie McAusland arrived in Australia, 26th of Jul 1849, on board the "Victory", out of Glasgow, Scotland to Port Phillip. She had 12 Months employment on her arrival with a family in the Goulburn area. She married James Butler a bare 3 and a 1/2 months after her arrival in the Colony.
 
There is a marriage record of a James Butler , bushman, being married 25th of May 1851 , at Kilmore, to a widow called Elizabeth Watson. He is not noted as a widower.
 
In 1851, James was having children with an Elizabeth, their first child, Robert, has no birth record but has a baptism record for 1853, that notes his birth in Nov 1851. When Robert was baptised in 1853, his mother is listed as "Elizabeth", on Jemima's birth in 1855, she was know as "Eliza Jane".
 
There are no records of what happened to James's first wife. Though it was suggested years ago, that she died in an asylum many years later. Did she run off or did she just die with no official record? Jessie, the daughter, married in Seymour at the age of 15, so I assume she was being brought up by her father and Eliza.
 
On Jemima's birth , James and Eliza claimed to have married March 1850, a bare four and a half months after James married Jessie McAusland and three months before his first child Jessie's birth!

 
  1. JESSIE BUTLER[21][29] b. 7 Jul 1850[21]Ghin Ghin, Victoria - d. 1 Jun 1933[20], Essendon, Victoria - 1st m. 5 May 1865, Victoria to James O'NEILL (school master, 1834-1869)
    Children:
    And Jessie BUTLER 2nd m. 1875[20], Victoria to Grosvenor Kemp JOHNSON[29], (1852-1942)
    Children:

shim shim
2nd Marriage
25 May 1851[21],
Seymour, Victoria 		Elizabeth/Eliza Jane
WATSON nee CLARKE
None Available
b. abt. 1810, Leeds, York, Eng
d. 24 Dec 1886[21],
Seymour, Victoria

Father:Thomas CLARKE
Mother: Eliza ?

  1. ROBERT ABSOLOM BUTLER[21][29], b. 30 Nov 1851, Seymour, Victoria - m. 23 Apr 1881 to Emily BARRETT

  2. JEMIMA BUTLER[21][29], b. 30 Apr. 1855[21], Seymour, Victoria - d. 7 Mar 1920[20], Prahran, Victoria - m. 1874[20], Victoria to George THOMSON[29] (abt 1853-1909)
    Children:


 
shim shim
shim ? WATSON
1st Marriage
before 1851
, ?
b. ?
?
d.?,
?

Father: ?
Mother: ?
Children: Notes: Eliza had been previously married to either a 'WILSON' (the surname given to her earlier child on her death cert) or a 'WATSON' (the surname given at her marriage to James) and had children by him, one of which was still alive in 1855 (noted on her death as William "Wilson", 'by former marriage'). They also noted four living children on Jemima's birth certificate, when James was known to only have 3 children at that time.
A son named "William WILSON" is noted on Eliza Jane's death certificate as 'by former marriage' but when Elizabeth married James she signed her name as WATSON. Which is correct? Why would James get the name wrong, the child must have lived with them for some time? Did William WATSON/Wilson make it to adulthood?
 
Newspaper Articles!

Worldly Goods of James Butler at his death 1889

Upon his death , James left an estate worth 3836.84p pounds, which he left to be equally to be divided between his children Jessie and Robert. This consisted of ;

1. Allotments 9 , 10 and 11 of section 'C' in the township of Seymour , containing one acre each upon which was erected a five roomed weather-board dwelling house with an iron roof , a stable and other small outbuildings ( fenced ) . Valued at 500 pound

2. Allotment 7 of section' X ' , parish of Seymour , County of Anglesey , containing 25 acres and two roods , fenced in and cultivated . Valued at ten pound an acre . Total N.A.V. 255 pounds

3. Lots 71 and 72 on plan of subdivision of part of Crown Allotment 1 , of section 1 , parish of Seymour . Upon which was erected a weather-board dwelling house with four rooms , iron roof and fenced in . Let to Patrick Haugh at two pound ten per month . Valued at 300 pounds

4. Lots 46 , 47 , 55-59 , 77-81 , 86 , 88-90 and 92 , on the plan of subdivision of Crown Allotments , one , two and three of section ' 2 ' , in the town and parish of Seymour . All unfenced and unoccupied . Valued at 263 pounds 16 and 8

5. Allotments 7 and 8 of section ' W ' , parish of Seymour , containing 184 acres under a lease for 14 years from the 2nd of February , 1885 . Fenced with no other improvements , valued at two pound per acre , 368 pound all up

6. James also owned 1 horse , 1 buggy , complete with harness set and he had over 844 pounds in the bank
 
Information from Seymour Rate Books

Cattle Theft

 
Cattle Stealing, dated 28th of May 1874

James M'Donald was charged with having on the 24th March, 1871 stolen and driven away two calves, the property of James Butler, of Seymour In a second count he was charged with receiving calves, the pro- perty of the said James Butler
The prisoner, who was defended by Mr. G P Smith and Mr. Taylor, pleaded "Not guilty."
'The Crown Prosecutor briefly stated the particulars of the case.
Evan Thomas deposed that he was a far- mer residing at Whitchead's Creek On the 14th March he saw the prisoner, who pointed out a number of cattle in one of the pad- docks, and said he had six in another paddock, and four on a different run. Wit- ness rented the farm, and bought the cattle for £100 He said he had more than 40 head. Paid him on the 15th March, and took de- livery of them on the 21th March Drafted the strange cattle out, leaving 33 cattle, namely, 16 cattle and 17 full grown calves. When taking a description of the cattle witness saw no brand on the two calves, and asked how it was. Prisoner said he got them somewhere else, and that they were to be de- livered to witness. One of them had the tip cut off the offside ear, and the other off the near ear. They were both heifer calves. Afterwards saw a brand "IS' on the near side ribs of one of them. Could not distin- guish the brand well but the "S" was visible when damped. This paper produced contained the description of the cattle. Witness took it down at the prisoner's dictation. Mrs M'Donald signed that, and he said there was no occasion to do it. He after wards told Mrs M'Donald to sign the receipt On Saturday, 28th March, saw two of the cows and the unbranded calf on the road, and the prisoner drove the two cows and the calf into the paddock A strange cow then ran up to the calf, and showed all the indica tions that it was her calf. The prisoner said the calf belonged to Mr. Butler, of Seymour, that he would either give him the money for it or another calf About a week after, Mr. Butler and a policeman came and claimed the calf. They claimed both calves.
Evan Thomas, Maurice Hayes, Jas. Butler, E Butler, W. Thomas, J. Williams, and Daniel Lovelock were also examined for the ??? ??? It was stated that when the dis- covery that the smaller calf was Butler's was made, the prisoner said it was a mistake and that he would speak to Butler about it, and give Evan Thomas another calf for them, or ? him the price of it
Mr G P Smith said his client was a respectable farmer, the owner of 300 acres of land and several head of cattle. It was ??? to suppose that a man in his position would steal two calves, worth at the most barely 3 pounds. As regarded the description of the cattle produced, his client could neither read nor write, and the description had not been read over to him.
Mr. O'Loghlin maintained that the evidence bore out the allegation that the pri- soner had appropriated the cattle to his own use.
His Honour summed up, and the jury, after a brief retirement, returned a verdict of "Not guilty."
The Court then adjourned till 10 a.m, next ?? day.
 
21 Mar 1874 James M Donald charged with having on the 21th March last stolen two calves the property of James Butler of Seymour and in the second count with having received the same knowing them to be stolen was acquitted and discharged
 
LEGAL ACTION

 
Argus - 16th of Nov 1874
LAW REPORT.
SUPREME COURT.
CIVIL SITTINGS BEFORE ?ILARY TERM
Old Court-house.-Friday, Nov. 13.
(Before his Honour Mr. Justice Fellows and
Special Juries of Four.)
M'DONALD v. BUTLER
The hearing of this case was resumed It was an action for £1 000 for wrongful im prisonment prosecution, and slander the defendant having given the plaintiff into custody on a charge of stealing some calves.
Mr G P Smith and Mr Taylor for plaintiff Mr Higinbotham and Mr Williams for defendant
This case had been partly heard the previous day Several witnesses were called on behalf of the plaintiff who substantiated his state ment that when he first saw the calves which he was afterwards accused of stealing in Thomas's paddock he told him that they belonged to Butler For the defence it was elicited that it was not until another person had called attention to the fact that plaintiff observed that the calves did not belong to him and that he then said he would either give Thomas two others or return the money he had paid for them. A list of the cattle sold by plaintiff to Thomas, and taken down from his dictation was produced, which included the calves in question Thomas who was called amongst other witnesses stated that when the cattle were delivered to him he noticed that the two calves were not branded like 15 others that he received and asked plaintiff the reason to which he replied that he got them some where else. On a subsequent occasion he said a mistake had been made and he meant to tell Butler about it but when he went to Butlers place to return an implement he never mentioned the matter. It was also brought out that plaintiff had been twice committed for trial for cattle stealing and acquitted.
The jury found for the plaintiff on the first and second counts damages £l50
 
Insolvency Court

 
Argus 23rd Feb 1875:
INSOLVENT COURT.
MONDAY, FEB. 22.
(Before his Honour Judge Noel.)
UK JAMES BUTLER.

An examination sitting was held in the estate of James Butler, of Seymour, farmer. Mr. Taylor appeared for the assignee, and Mr. Hedderwick for the insolvent, who was submitted to a long examination. From his evidence it appeared that on the 13th November last one M'Connell obtained a verdict in the Supreme Court against him for £150 At that time insolvent owned 48 acres of land, 30 of which were under crop, and was a selector of 246 acres, on which there were some improvments Several days after the verdict was recorded against him he sold the two lots of land to Mr Perron, to- gether with 50 head of cattle, two horses, and the furniture of his house, for £453 15s That money was placed in the bank by insolvent, and, as he said, paid away to creditors. One part of it, £112 10s, was paid to his son Robert, 24 years of age, for wages alleged to be due, and £100 to his daughter, Jemima Thomson, in considera- tion of a promissory note which he gave her in July last as a marriage portion Insolvent also drew out of the money in the bank £86 5s, which he paid to his solicitor and for witnesses and expenses in the law suit with M Donnell He also paid £45 to Messrs Connor and Drew, contractors, money bor rowed from them, and £35 for wages to a female servant who attended on his wife In September last he sold some land to Hanna for £95 cash, and gave £80 to his wife to go to Melbourne to consult the doctors His wife remained in town five or six weeks and he did not think she had any of the £80 left. After the sale to Perron in solvent and his family continued to live in the house and on the land, and did not pay Perron rent for it When he was served with the order nisi for the sequestration of his estate, the messenger of the assignee went into possession of the land and pro perty, and remained three days, at the end of which time Perron went and put him out.
The examination closed.
 
Argus: March 1:
INSOLVENT COURT.
MONDAY, MARCH 1.
(Before his Honour Judge Noel.)
RE JAMES BUTLER.
A further examination was held in the estate of James Butler, of Seymour, farmer, .Mr. Lawes appearing for the trustee, and Mr. Hedderwick for insolvent and wit-nesses.
At a previous examination the insolvent had stated that in November last after a verdict for £150 had been recorded against him in the Supreme Court, he had sold all his property to Clement Perron for £453 15s and had paid over the greater part of the purchase money to members of his family, as money owing to them and for other purposes. To-day, Clement Perron, a hotel keeper and store keeper of Seymour, was examined. He said there had been transactions between him and the insolvent for the last 10 years, insolvent buying groceries and liquors from him, and he buying hay and cattle from insolvent. Never had any dealings in land with insol- vent until November last. On the 13th November last insolvent owed him £24. About the middle of November he bought 48 acres of land from the insolvent. It was after dinner when the land was sold to him, but he could not say whether it was sold inside or outside the hotel, or whether any one was present. Insolvent said he had sold land to M'Mahon for £45, and he wanted to settle his accounts, and to sell his land, cattle, and everything else. The insolvent asked £5 an acre for the land, and said he would bring in the cattle.' Witness said he would buy the cattle, and on the next day insolvent came to him and said he had the cattle mustered. 'Witness then said he would buy them, and they went to the farm to see them and the im- plements. There was about 50 head of cattle. Dr. Henly, J.P., was with him to examine the cattle. On the same evening insolvent came to witness's hotel with a list of the land, cattle, and goods, and prices attached, and witness agreed to take them at the prices named and pay when the title was completed. (The list showed that the 48 acres of ' land was valued at £240, the cattle and two bay mares at £150, the implements at £11 10s., and the furniture at £22 5s., or in all £453 15s.) The land was conveyed by deed to witness on the 17th November. Witness paid the £453 15s. by cheque to the insolvent. Believed the payment was made on the 23rd or 24th November. Did not get a receipt for the £453 15s, because be did not think it necessary, He gave the cheque to the insolvent after the deed and a bill of sale of the property were signed. The deed, dated l7th November, recited that the money had then been received, but he had not then given his cheque. Could not explain why -that was so. He left the matter to his solicitor. If there was any other deed relating to the land, his Solicitor must have it. There was no agreement, verbal or written, about the property, except that the insolvent was to stay on it till the crop was right, and he saw that things were right for himself. Told insolvent he might stay there on those terms when be bought the land. Allowed insolvent to remain on the property, first, because he was an old customer of his and next, because he wanted some one to look after the property. Witness took pos- session of the property on the 23rd November, by placing Robert Butler, insolvent's son, in charge of it. He then went to the place, and told insolvent's son to look after the cattle at £1 per week wages. The insolvent was still in possession of the land, and all the imple- ments were on the place. He had employed the insolvent and his son, and other men, on the land. Did not put the father in charge of the property, because he (the father) did not want to have anything to do with it. Knew M'Donald had obtained a verdict for £150 against insolvent for slander and false imprisonment when he bought the pro- perty. Land adjacent to what he bought from insolvent had been sold for £50 per acre, but it was land opposite the railway station, and the land he bought was back land. Insolvent paid witness no rent, and he did not know when insolvent would turn out of the property.
Jessie O'Neil, a widow, and daughter of the insolvent, was also examined. She said that about the 25th November her father gave her £100 to give to her sister, Mrs. Thomson. He did not tell her what the money wai for. Her father also gave her (witness) £35 al wages for work she had done in the house Before her father gave her the £100 for her sister, the latter had given her a promissory note for £100, and when her father gave her the £100 she gave the promissory note to him. Witness and her two children had been living with her father for some time before he gave her the £35, and she did not pay him anything for their board. The £35 was for one year's work, and about 12 or 14 months before she received a like sum from hor father.
Jemima Thomson, also a daughter of the insolvent, was examined respecting the £100 which her father had given her. She stated that in July last, when she was married, her father gave her an acceptance for £100 as a marriage portion, and the £100 which she received from him in November was in pay- ment of the acceptance. Her husband knew nothing about her receiving the £100. Had not paid the £100 back. It had been spent.
George Thomson, a bank clerk, husband of the last witness, stated that he knew nothing until the last fortnight about the £100 being given, but he believed from what his wife had said that she had received it. He did not believe when Mr. Manton, solicitor, called on him at the bank a short time ago that he told him his wife had not received the £100, and that he held an acceptance of his father-in-law's for £100. He would deny that he had told Manton that his wife had not received £100. What he had told to Manton was not said on oath, and what he had to say in court was on oath. It might be taken that what he had told Manton was not true. He would also swear that he did not tell Manton that he held an acceptance of insolvent's for £103. Told Manton that insolvent had sold some property belonging to Mrs. Thomson, and that instead of giving her the money he had given her the bill. The bill he referred to was a promissory note, and he told Manton that he should have the note if his wife had it in her possession. Did not himself hold any note or bill of insolvent's for £103.
When the last witness had finished his evidence, his Honour stated that it was very much like gross prevarication in some parts.
The examination was then adjourned to the following day.
 
Argus, 6th Mar 1875:
INSOLVENT COURT.
TUESDAY, MARCH 2.
(Before his Honour Judge Noel.)
Re JAMES BUTLER.
An adjourned examination was held in the estate of James Butler, of Seymour, farmer. Mr. Lawes appeared for the assignee, andMr. Hedderwick for the insolvent and witnesses John Guild a member of the firm of Guild Brothers of Seymour was examined He said the insolvent paid them no money in November last but took up a promissory note for £110 When the note became due witness asked insolvent how he was going to meet it and insolvent then offered to sell him some land or cattle which witness declined to purchase The bill was afterwards taken up by insolvent The consideration for the note was £100 lent in cash to the in- solvent and the note was given by him at the date of the loan They held it until just before it became due and then put it into the bank for collection It lay in the bank after it was overdue Witness did not press the insolvent for payment after the note became due He had heard that the insol vent had sold his property before the money was paid Believed the money was paid into the bank by the insolvent on the 21st November Robert Butler aged 21 a son of the insol vent was next examined respecting a sum of money which it had been stated was paid to him by his father in November last for wages after the verdict for £150 was given in the Supreme Court and after his father had sold his property about the 17th November to C Perron He said his father paid bim money as he believed in the beginning of November last Believed his father gave him the cheque for the money in their house He could not say it was after the farm was sold to Perron nor could he say whether any one was present when he got the cheque His father wrote out the cheque and gave it him and said it was his wages He only got one cheque from his father for the amount of £112 10s He (insolvent) had previously told him he was going to give him the cheque Did not recollect when his father told him that Did not think he told him so after the farm was sold to Perron
Mr LAWES -Did he tell you that he would pay you before or after he lost the action?'
Witness -Before, I think
Mr LAWES -Why do you think so? '
The witness said he did not know why he thought so He asked his father one day for money and his father said he would pay him Recollected nothing else about the payment of the money but what he had stated He wanted the money to take up some land at Tallarook Got the cheque cashed at the Colonial Bank and spent some of the money and kept the rest Twelve months before he had received £15 from his father. Was not certain whether he re-cèlved any money from his father during the 12 months before the cheque was paid, but' did not think he did. Did not receive any money from his father after he got the cheque. Before he had the cheque his father had given him two promissory notes-one for £40, and one, he thought, for £35. Gave those notes back to his father when he took the cheque. He thought he gave his father two receipts for the balance, but did not know. Did not think he re- ceived any cash or notes with the cheque. His rate of wages was £50 per annum, that was, £1 per week, for being a generally useful servant. He lived with his father, and some- times the latter paid for his clothes. Was paid the cheque for wages up to some time in November last. He had only re- ceived £10 and £15 before that on account of the £1 per week, and the promissory notes represented the amounts due to him When they were given.
Mr. LAWES.-How do you account for re- ceiving £112 10s, when the two promissory notes represented only £75 cash, and you had received only £25 cash ?
Witness.-Well, there was £10 and £35 and the two promissory-notes, and then there was the £37 10s.
The witness was then asked to account for the manner in which the wages, said to be £1 per week from February, 1871, to Novem. ber, 1874, came to the money he received, but he could not make out the account satis- factorily. When asked for what time the £37 10s. was due, he said from February the 5th, 1874, to some time in November last.
After some further questioning, to which the witness gave unsatisfactory answers.
His HONOUR said the whole of the witness's evidence showed glaring inconsistencies, and the latter part of it was decidedly evasive. He should therefore commit him to prison for three days.
The witness was then removed to gaol, and the case was adjourned until Friday next for his further examination.
 
Same paper, different column:
Re: JAMES BUTLER
An adjorned examination was held in the estate of James Butler of Seymour hotel-keepr. Mr Lawes and Mr Taylor appeared for the assignee and Mr Heddwick for a witness.
Robert Butler, a son of the insolvent who on the previous Tuesday was committed to gaol for three days for evasive answers to questions put to him, was further examined respecting $112 10s, which it had been stated was paid to him by his father in November last. He now said in the first instance that part of the 112 10s was at his home in Seymour, then that it was all there, because he had put money to it recently. The money was kept in a box in his room, but he could not say whether the box had a lock on it or not, or whether there was a keyhole to the box.
The case was then adjorned for one week.
 
Argus. March 12, 1875:
RE JAMES BUTLER
The adjourned examination in the estate of James Butler, of Seymour, farmer, lapsed through non attendance of the parties
(Before W B Noel, Esq., Chief Commissioner of Insolvent Estates )
 
Friday, Oct. 22.
(Before his Honour Judge Noel.)
RE TRUSTEE OF J BUTLER V. THOMPSON.
His Honour delivered his reserved judg. ment in the application of the trustee of the estate of James Butler, of Seymour, farmer, to recover from Jemima Thompson a mar- ried daughter of the insolvent £100, which it was alleged the insolvent had wrongfully given been November last after a judgment of the Supreme Court had been entered up against him, and just prior to the sequestra- tion of his estate His Honour said the evidence satisfied him that the payment of the £100 by the insolvent to his daughter was a voluntary gift to her made at such a time and under such circum- stances as showed it was intended to defeat and delay the plaintiff in an action for false imprisonment the payment was therefore void as against the assignee and if so re Jobson 5 A J Reports was an authority for saying that it was money had and received to his use, which might be recovered under section 94 of the Insolvency Statute 1871 He therefore gave a verdict for plaintiff for £100, and allowed the defendant 10 days in which to pay the money
 
Argus 22 May 1875
INSOLVENT COURT.
FRIDAY, MAY 21.
(Before his Honour Judge Noel,)
TRUSTEE V. GUILD.
His HONOUR delivered judgment on a sum- mons in the case of the truutee of the estate of James Butler, of Seymour, farmer, against Messrs. Guild, of Seymour, storekeepers, in which the former sought to recover £110 from the latter, on the ground that it had been paid voluntarily without pressure, and so could be recovered by the trustee under the ??th section of the act The money had been paid on a bill given by insolvent to Messsa. Guild and the bill had become due several weeks before it was paid The evidence given at the hearing of the summons was, that Butler had been requested to pay the bill when it became due In deliver- ing his judgment His Honour said - When a debtor contemplating sequestration voluntarily pays a debt, and séquestration shortly supervenes the trustee may recover back the money from the creditor who receives it, not because the transaction has in it anything inherently unjust and fraudu- lent, or the payee has any intention qf de- feating the just claims of others, but because, being deemed to be contrary to the spirit and principle of the law of insolvency, the trans- action is invalid as against the representa- tive of all the creditors The question of preference or no preference turns generally upon the motive and intent of the debtor who pays rather than of the creditor who is paid Nevertheless, a payment made by a debtor intending to sequestrate is not to be taken as voluntary, even although there be no importunity on the patt of the creditor, it it is made in the ordinary course of business, and at his request ???? v Cooper, Cowp 634 , Brown v Kemp ton, 19 L J C P. And this principle was more broadly laid down in Bills v Smith, L J , Q B , where it was said that a jury should be told that a payment by a debtor who believed bankruptcy unavoidable and to whom no application had been made, would be legal and valid, if it resulted from a desire to fulfil a prior undertaking supposed to be peremptory. And exparte Tempest, G Chan App , suggests that the Court acting as both judge and jury, should proceed more on what was done and said by the creditor than what was thought by the debtor, L J. James said- A creditor would be subjected to treat injustice if, after going to the debtor and demanding payment or security, and getting payment, without any notice that he is getting an advantage, if he were to bo de- prived of what he thus honestly got because of something which was passing in the debtor's mind of which he knew nothing" And Mellish, L J , said-" If the debtor is influenced partly by demand of the creditor, or by negotiations with him, the act is not a purely voluntary act, and is not a fraudulent preference, although the creditor may be a friend whom the debtor wishes to prefer, In the light of these cases, I think that the trustee would not recover at law or in equity, and therefore ought not under this 98th section, if, from the evidence, it shall appear that the pay- ment was made to the defendant in conse- quence of his request or demand that it should be paid, albeit the insolvent waa aware of approaching sequestration, and may have had an intention to prefer him. There is, however, an important proviso that the request be bona fide A sham demand or pressure, or, to use the language of the Lord Justice, the getting of payment with notice that he is getting an advantage over other créditors, will not take it out of the class of voluntary payments Kinnear v Walmsley, 2 Fos and Fin " His Honour then went into the details of the evidence, and came to the conclusion that there had been demand and pressure by the defendant that the insolvent waa influenced by such près sure, and that he in conséquence made a pro- mise of payment at once Although, in fact, the promissory note lay in the bank for three weeks, during which period there was no evidence as to continued pressure and demand one way or tho other, he did not think it reasonable to suppose that the motive of the insolvent-whose sequestra- tion was possible but not inevitable-had ceased to be influenced by the demand of the creditor and his own consequent pro mise, but had been governed entirely by a desire to prefer the defendant
Summons dismissed.
 
18 Aug 1877- RE JAMES BUTLER. I
An application was made for an uncon- ditional certificate of discharge to be granted to J, Butler, of Seymour, farmer, Mr. Manton appearing for a creditor to oppose, and Mr Webb for insolvent. The application was opposed on the ground that the insolvent had, given fraudulent preferences to creditors in order to defeat the claims of Mr. M Donnall, a farmer, who had obtained a verdict against him for £150 in the Supreme Court. Argu- ments were heard on the case,and his Honour reserved his decision to the next Friday.
 
30 Aug 1877- INSOLVENT COURT.
FRIDAY, ADO. 21.
(Before his Honour Judge Noel.)
RE JAMES BUTLER.
His Honour delivered judgment on the application of James Butler, of Seymour, farmer, for a certificate of discharge. The application had been opposed on various grounds, one of which .was that insolvent had not satisfied a verdict given against him in the Supreme Court for £150, for damages for an assault. His Honour held that the objec- tion specified was sustained, and he therefore suspended the granting of the certificate for three mouths, after which time it could be issued on payment to the creditors of 7s. in the £ and the costs of the assignee and of the opposing creditor.
 
29 Apr 1878- RE JAMES BUTLER.
On the motion of Mr. Manton, an order was made for the release from court of the estate of James Butler, of Seymour, farmer. subject to the costs of the assignee being paid by insolvent.
 
Return to main

This site proudly made by DarkFyre