R.M. COURT-YESTERDAY.

Auckland Star, Volume XVIII, Issue 224, 24 September 1887, Page 8

R.M. COURT-YESTERDAY.

(Before H. G. Seth Smith, 8.M.)

Official Assignee and Gkeenhougii v. Jackson.—Claim, £50 damages, for alleged illegal distress.—Mr C. W. Cave for the plaintiff, Mr Theo. Cooper for defendant.— The facts in this case as proved by the various witnesses were that Groenhough, one of the plaintiffs, was tenant of the defendant's house in Ponsonby at the rental of £1 per week. On August 29th 13 weeks' rent were due and unpaid, and on the 30th August a distress worrant was issued but could not be executed as the bailiff could not effect an entrance. On the 15th September, Greenhough filed, rind between the 2nd September and the 9th, MrOliphant, solicitorfor defendant,hadseveral interviews with the Official Assignee (Mr Lawson) as to payment of the rent, the outcome being that the Official Assignee claimed that as the only asset in the estate was furniture under the value of £25 there were no funds on his hands to satisfy the rent, and that he declined to interfere but recommended the defendant to distrain. This the defendant did and goods were sold to the extent of £16 13s6d. t Greenhough then applied to the Official Assignee to sue on his behalf for damages, and the present action was the income. Mr Cave contended that section 17 of the Bankruptcy Act Amendment Act, 1884, took away the right to distrain, and that the distress was consequently illegal. Mr Theo. Cooper contended that (1), as it appeared by the. evidence that Dr. Laishley was mortgagee of the furniture, he ought to have been a party to the action ; (2) thafc the bankruptcy proceedings had not been properly proved ; (3) that the property in the furniture had not vested in the Official Assignee as the amount wasunder £25, and that he was improperly formed as a plaintiff ; (4) that Section 17 being expressly subject to the provisions of Section 121 of the Act of 1883 did not'take away the right to distrain when less than six months' rent was due ; (5) even if the plaintiffs were entitled to recover at all they were only entitled to nominal damages, the Official Assignee because he had no legal interest in the property, and the debtor Greenhough because only his right to possession hadbeen interfered with, and the present action was for the full value of the property. Mr Cave replied to the various points raised,and His Worship considering the questions raised were of considerable importance reserved his decision in order to examine the authorities cited.