IN CHAMBERS.

Otago Witness, Issue 1456, 11 October 1879, Page 8

IN CHAMBERS.

On the 3rd, in Chambera, Mr Justice Williams granted an order of complete execution of deed in re Mary Ann Woodley (bankrupt), and adjudicated Ah Foo, a bankrupt, on a creditors' petition. KE GEORGE CAI'STICK (TRUSTEE IN THE ESTATE

OS 1 J. BURT, BANKRUPT).

Summons calling upon the creditors, Bing, Harris, and Co., their solicitor or agent, to show cause why the said Gteorge Capstick should not be discharged from imprisonment upon the following grounds : That the Baid George Capstick waa arrested and imprisoned when he was protected from process under the provisions of the Debtors and Creditors Act, 1876, and on the further grounds disclosed in the affidavit of John Mouat (solicitor). Mr Howorth appeared to show cause, and Mr Mouat to move the order discharging the bankrupt. After some argument by counsel, His Honor, in giving judgment, Baid : Capstick was ordered by an order of the District Court, he being then trustee in tho estate of Burt, to pay certain moneys received by him as trustee to the credit of the estate at the National Bank. On the same day on which that order was made, another order was made, removing Capstick from bis trusteeship and appointing Lewis in his place. Capatick did not comply with the order to pay the money, and Lewis, therefore, as the new trustee, en the removal of the proceedings into this Court became, in the words of the 82nd section of the Debtors and Creditors Act, "the person en titled to enforoe against the debtor the payment of this money by process of contempt." That being so, if Capstick becomes bankrupt the amount of which he has made default is provable by Lewis, on behalf of the general body of creditors, under Capstick's bankruptcy, by virtue of the 82nd section. There being, therefore, a claim provable under Cap« stick's baakruptcy in respect of this amount, it is a debt within section 26 of the Debtors and Creditors Act. I am inclined to think that under the true construction of sectiou 26 the word "debt "means anything provable under bankruptcy. Certainly it is not limited to a debt of the kind necessary to found a petition for adjudication, but covers any matter in respect of whioh a dividend can be obtained under the bankruptcy. Then it follows that no process against the person of a bankrupt in respect of such a debt, other than such as may be had against a debtor about to depart out of New Zealand, is to be available without leave of the Court. Now the Abolition of Imprison ment for Debt Act provides that imprisonment for debt Bhall be abolished, except in certain specified cases. The first class of these cases is contained in section 3, and the particular case now in question is referred to in subsection 3of that section. Then there is another clans of cases, where a debt has been incurred by something like fraud, and in such cases the Court has power to commit to a limited term of imprisonment the person so acting ; and then there is the case where a debtor is about to leave New Zealand. There are these three classes of cases, therefore, by which, by the Imprisonment for Debt Abolition Act, imprisonment is to a certain limited extent retained, and section 26 provides that in one of these cases only — viz., in the case where a debtor is about to depart out of New Zealand — that in that case only process is to be available without leave of the Court if a declaration of insolvency has been filed. In respect, therefore, of the other two classes of cases after a declaration of insolvency has been filed, where the debt iB provable under the bankruptcy, the process is not available without leave of the Court. I think, therefore, that in the present case the effect of section 26 is to render the process under writ of attachment of no further avail unless the Court expressly decides that it shall be available. No doubt if fraud could be shown, or if there were any special reason why the process should remain available, the Court would permit it so to remain, and would prevent the operation of section 26. It seems to me that the object of attaching a person is not so much to punish him for the non-payment of money as to recover the money, and therefore, if it ap ■ pears pretty clearly that he is not in a position to pay the money, I see no reason why the process should remain available, although I hold thab it would be perfectly competent on a summons of this kind for the person called upon to fihow erase, £o show borne reason why the process should ctntinue available. That, to my mind, would be only just.

Mr Howorth asked that he might have an opportunity for doing what the learned Judge had indicated, and of consulting his clients concerning it. Mr Mouafc : It will be open for you to move for leave to re-issue if you can show sufficient 1 grounds. £lis Honor : There must be some very special reason indeed to allow the process against a person to continue available under section 26. The order will be discharged by the simple operation of the Debtors and Creditors AcC — that is the effect of the present decision. — Order as applied for granted.

(Before liis Honor Mr Justice Williams.) BE LAND TRANSFER ACT, 1870, OR RE APPLICATION OV MARGARET BORROWJJS AND

OTHERS,

Summons to the District Lands Registrar, at Dunedin, under section 115 of the abovementioned Act,