SUPREME COURT.

Auckland Star, Volume XVIII, Issue 179, 2 August 1887, Page 5

SUPREME COURT.

(Yesterday Concluded),

Civil Sessions. (Before His Honor Mr Justice Ward.)

Henry Albert Holland Hitchens v. Frank Winter.— Action for taking of accounts, etc.—Mr Theo. Cooper appeared for the plaintiff, and Mr J. M. Alexandei for the defendant.—Mr Cooper said the statement of claim set forth that in June, July, September, and October, 1883, the plaintiff delivered to the defendant a large quantity of Blood Restorer to sell, as agent for the plaintiff, and for which he was to account. The defendant, prior to the 15th of May, 1884, sold large quantities of this medicine, but had not accounted to the plaintiff for the proceeds. On that date the plaintiff became a bankrupt, and his estate was vested in the Official Assignee, but this bankruptcy was annulled on the 17th of July. The statement of defence inferentially denied the receipt of the merchandise, and set out special facts in respect to it. It set forth that defendant, on behalf of himself and one Pierce Lanigan, had advanced to plaintiff the sura of L 220, and the proceeds of the sale were to be de-voted-to the liquidation of that advance. Mr Lanigan proved in the estate as a creditor for L 147. The whoL matter, however, turned upon a point of law, that the parties had resolved to submit to His Honor's decision, which would determine the matter. If decided adversely to the plaintiff he would consent to the taking of accounts by the Registrar. If, however, it were decided in the plaintiffs favour, judgment, would be given for the amount claimed. A deed of composition was made under Section 188 to 197 of the Act. Under Section 190 the Court, if satisfied that the deed was in conformity with the composition, approved of it, and directed that it should be tiled in.the Court, and that the bankruptcy should be annulled, and the deed should be binding in all respects. And the property' of the bankrupt should rest and be dealt with under the deed. The Court was satisfied, and directed that the deed should bo entered and filed, but there was no. assignment of the property in thedeedof composition. The point of law raised for His Honor's decision was this : —Where there is a deed of composition, and whore the former debtor claims his estate, must he claim by virtue of the provisions of the deed of composition, and not otherwise ? or can he claim through a subsequent assignment by the Official Assignee? In this case there was no assignment in the deed, and the plaintiff claimed under a subsequent assignment from the Official Assignee.—Mr Cooper argued that under the Act the plaintiif had a right to sue, the provisions of clause 92 not.applying to this case.—Mr Alexander, for the defendant, contended that the deed of composition must deal with tho property, and unless it did so, the Assignee had no power to deal with the estate. He submitted that tho property was still vested in the Official Assignee, notwithstanding the deed. It seemed to them that this Court had no power to deal with the matter, but that it must be dealt with by the Court of Bankruptcy.—His Honor said that he was not prepared to say that when a deed had been approved by the Court he should now hold that because there was no proviso in the deed re-vesting the estate in the bankrupt, it must necessarily be bad. It appeared to him that clause 92 did not apply. In this case, he thought he must hold that the assignment of the Official Assignee to the debtor was in conformity with the provisions of the deed, and the estate of the bankrupt was consequently vested in the plaintiff. He, however, thought that, strictly speaking, a deed of composition should contain an assignment of the estate. On the application of Mr Cooper an order for account was made, the conduct of the case being left with the plaintiff, and the question of costs reserved.