A CHRISTCHURCH CASE IN ENGLAND.

Press, Volume XLVI, Issue 7268, 26 March 1889, Page 6

A CHRISTCHURCH CASE IN ENGLAND.

In the Queen's Bench Division on February 4th, before Mr Baron Huddleston and Mr Justice Wills, the case Barker v Johnson and AHsop, was heard. This was an appeal from an order of Mr Justice Denman ordering that the defendants should be at liberty to amend their defence by pleading matters that had arisen since their defence was delivered, and .hat the defendants should produce for .aspection by the plaintiff's solicitors certain documents referred to in the defend' ants' affidavit of documents. The defendants are bankers and merchants in Lon. don. The plaintiff resides in New Zealand. The action was brought on March 12th, lbß7, to recover £_000 money had and received. The defence, delivered on June 13th, 1887, admitted the receipt of the sum of £5166 from the plaintiff, but that afterpayment of certain moneys thereout to the plaintiff, they had placed the balance to the credit of Messrs R. Wilkin and Company, of Cbristchurch, New Zealand, according to the plaintiff s instructions, and that the plaintiff had been so credited by Messrs Wilkin and Company. The reply was delivered on January 10th, ISSB, and alleged that the defendants were the colonial brokers and London agents of Messrs R. Wilkin and Company, who were their debtors in the sum of £7379 los Id, as to which they had goods of Wilkin and Company of the estimated value of £3160, leaving due to them a balance of £4219 ; that instead of remitting the said balance to Messrs Wilkin and Company, as directed, they put the money in their pockets and simply credited Wilkin and Co. with the amount in their books. On January sth, 18SS, the plaintiff became a bankrupt in New Zealand. On February 27th, 1888, the trustee in bankruptcy entered into a covenant with the plaintiff's brother to assign to him the whole of the plaintiff's property, which would include the cause of action, for a nominal consideration. On April 17th, 1888, the plaintiff obtained his discharge, and in June, 1888, the trustee assigned the benefit of the aotion to the plaintiff. And the plaintiff now claimed to go on as if he had never been bankrupt.—Mr Lumley Smith, Q.C. (Mr Morten Daniel with him), for the defendants, contended that the action had abated. Immediately the plaintiff became bankrupt the trustee should have come forward and carried on the action, or allowed it to abate. The action was vexatious. The action might be stayed, and the defendants need not have pleaded the the bankruptcy in bar. " Eldridge v Burgess" (7 Ch. D. 411); "Jackson v NorthEastern Railway Company " (5 Ch. D. 844); "Warder v Saunders" (10 Q.8.D., 114).— Mr Nasmyth, Q.C., for the plaintiff, contended that an assignee from the trustee in bankruptcy was entitled to continue the action. —Mr Baron Huddleston, in giving judgment, after stating the facts above set forth, said that Order 17, Rule 1, was " that an action should not become abated by reason of the marriage, death, or bankruptcy of any of the parties, if the cause of action survived or continued ;" the cause of action did continue. It was proposed by the Judge at Chambers to put on the defence that the plaintiff had x»een a bankrupt, which was objected to. His Lordship thought the amendment a good one, and dismissed the appeal. Mr Justice Wills said he was of the same opinion., The case was one of some difficulty, and not contemplated or dealt with by the rules. What were the rights of the parlies at the time the trustee was appointed ? Did the cause of action go ? His Lordship thought it did not. It might have been at one time pleaded that the cause of action vested in the trustee; but Order 17, Rule 1, put an end to that. His Lordship, after reading the rule, continuing, said that in an action of A against B, the cause of action against B did not come to an end because A became bankrupt, if the cause of action survived or continued. What vested in the trustee was. what belonged to the bankrupt; therefore it seemed that the cause of action continued. There was a period of six months during which the defendants were in a position to ask the Court, if the trustee did not join, to stay the action. They made no such application. The assignment took place in June. The bankrupt's discharge and assignment wonld have been known in this country in August. The defendants went to sleep, and it was not. until December that they made an application' for a stay, as a counterblast to the plaintiff's application for inspection. The trustee then had no longer any interest. The cause of action was still surviving, and the temporary right of the plaintiff to call in the trustee to interfere had been removed. His Lordship thought the justice of the case was met by the order made by Mr Justice Denman at Chambers. The defendants were amply protected by the security for costs and the permission to put the fact of the plaintiff's bankruptcy on the record, and treat it as a fact if it was one.