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DISTRICT COURT., Ashburton Guardian, Volume 1, Issue 63, 19 February 1880
ASHBURTON— Tuesday, Feb. 17. Before His Honor Judge Ward. JOSHUA TUCKER V. C. C. HURBELE. In this case his Honor delivered the fol- d lowing judgment:—The facts proved in this case are as follows :—One Ford brought an action in the R.M. CourtjSome months ago against Bluett, and obtauWfejudgment for LSO. As it appeared at Vf£niearing of the case that Bluett had a*, case against Ford, it was ordered bymtfie Resident Magistrate that he (Bluett) URSuld pay the LSO for which judgment was given into Court, and that the Clerk of the Court, the present defendant should hold that sum until the action Bluett v. Ford had been decided, in order that the cross judgment might be set off. On the 10th Dec. last Bluett paid this LSO into Court. On the 13th one Orr obtained a j udgment with an order for immediate execution ,in the R.M. Court for LSO against Ford, who thereupon filed a declaration of insolvency. On the same day at 12.30, after the filing of this document, Bluett discontinued his action against Ford. Then Orr obtained an order from the B. M., purporting to be under clause 65 of the Resident Magistrate’s Act, 1867, directing the defendant, as Clerk of the R.M. Court, to pay the LSO in his hands to the bailiff, after which the said bailiff, by the instructions of the defendant, drew out a warrant of distress, went to the R.M. and got it signed, and returned to the defendant who then produced the order previously given under clause 65, and handed over the LSO to the bailiff who paid it to Orr, although he held at the time a prior unsatisfied warrant against the goods of Ford. This action is brought . by the creditors’ trustee of Ford’s estate to recover the LSO so paid over by the defendant, in as much as he was the Clerk of the District Court, and became ex officio trustee of Ford’s estate on the filing of the declaration of insolvency. It was also shown that defendant was warned by Ford’s solicitor, at the time of such filling that he must not part with the LSO paid in by Bluett, and that he promised to hold it; and that, on being further warned by Mr. Harris on the subject, he declared he would pay over the money if the Resident Magistrate ordered him to do so. Had the defendant been merely the Clerk of the Resident Magistrate’s Court I should not have had muchdoubtasto my decision. It would scarcely have been for the Clerk to question the legality of an order given by the Magistrate, andto refuse to obey it on the ground of its being. erroneous. The difficulty here arises from his being ex officio the trustee of Ford’s estate. The question is, whether, as Clerk of the District Court and trustee, he can shelter himself from responsibility behind an order of the Resident , Magistrate : and, after careful considera- J# tion, I am of opinion that he cannot, especially as he knew it to be irregular. The blunders of all the officers are somewhat singular. The R.M. in his private room, instead of in Court—before signing the warrant of distress instead of after—and without any inquiry whether there were other warrants out, or whether the debt or had filed his declaration of bankruptcy’made ah order in effect directing the Clerk of his Court to hand over the whole of the debtor’s assets to the bailiff on behalf of a single creditor, thereby defeating the chief object of the bankruptcy laws—viz., the securing an equal division of the insolvent’s property among the creditors, and also depriving--?, prior execution creditor of his legal right to this L 59, if it were to be seized at all. The Clerk of the Court, having promised to retain this fundbeen warned - that the order R.M. in respect of it is illegal,'and knowing it to be so, nevertheless gives it up without dispute, and the bailiff pays it over to Orr, having at the time a prior unsatisfied warrant of distress in his hands on behalf of another creditor. There can be no question but that, on the filing of Ford’s declaration of insolvency, the LSO then in the hands of defendant as Clerk of the R.M. Court vested .in him as official trustee of Ford’s estate, and he had no right to part with it save in due course of law. As trustee it was for him to see that the order of the Resident Magistrate was legal and valid.. It is shown that he obeyed it, knowing it to be irregular; and, consequently, judgment will be given against him ; but as his duties in the dual capacity of Clerk to the District and R.M. Courts were calculated to puzzle better lawyers than he, no costs will be allowed against him. A. J. HOUSTON V. S. SAUNDERS & ANOTHER. Mr. Branson for plaintiff; Mr. O’Reilly for'defendant. Claim LSO. The action was brought to recover the amount claimed as damages for a breach of contract entered into by defendant with plaintiff, whereby plaintiff was to supply defendant with chaff to the extent of 35 tons at L2 15s. per ton if paid in cash, and L 3 if paid within six weeks from delivery. The contract was entered into in October last. Plaintiff alleged that he was at liberty under his contract to deliver the chaff at anytime convenient to himself; defendant contended the agreement was to have it delivered at once. Through delay in delivery defendants refused to accept a large portion of the chaff contracted for, as they could not sell it, the price having fallen. The plaintiff contended that there was no delay according to the agreement, .48 and sued for damages suffered by him in losing the market. His Honor after hearing evidence that occupied an hour and a half, decided that the defendants had themselves to a great extent caused the delay by the non-de-livery of the bags, and gave judgment for L 39 odd with costs. In Bankruptcy. Re George Thompson, a debtor. —An application was made by Mr. Purnell for final order of discharge. Granted. . Re John Y. Ward, a debtor. —Mr. Harris applied for a final order of discharge. Adjourned till next Court day. Re J. P. Parker. —Application for costs by Mr. Purnell. Granted. Re Thomas Williams.—Application for payment of costs, .by Mr. O’Reilly. Granted. Re Thomas Dudson.—Application for payment of costs, by Mr. O’Reilly. Mr. Parnell opposed on behalf of trustee. Adjourned till next Court day. An application was made by Mr. O’Reilly for probate in re Dennihay. His Honor stated he could not grant it without proof of the absence of the Judge that day from the district; that the better - > course would be for the profession to apply to him to have Ashburton made a separate district, and he would represent the matter to the Minister of Justice.
DISTRICT COURT., Ashburton Guardian, Volume 1, Issue 63, 19 February 1880
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