SUPREME COURT.

Dominion, Volume 1, Issue 265, 1 August 1908, Page 11

SUPREME COURT.

BANKRUPTCY LAWCAPACITY OF ;A DEBTOR TO SUE. IMPORTANT JUDGMENT. An important 'question was considered by Mr. Justice Cooper in his judgment with respect to a summons relating to tho caso of "William Gordon Hutchison v. Alfred Ben go, which was delivered yesterday. The facts in this case were, briefly, that Hutchison, who is ail -undischarged bankrupt, has brought an action against Benge, claiming £410 as, the commission on the alleged sale by Hutchison as agent for Benge, of Bongo's farm, at Mungaroa. The employment alleged by Hutchison and tho sale alleged by him to have been negotiated by him as Benge s agent took place after his bankruptcy, and the Official Assignee has not intervened. The summons was originally for security for costs, but by consent of tho parties a claim for a stay of proceedings upon the ground that Hutchison being an undischarged bankrupt had no capacity to sue was substituted. His Honour said that under Section 69 of tho Bankruptcy Act, 1892j provided that arter adjudication, neither a bankrupt nor WOT 011 claiming through or under him should have any power to recover any property or to make any release or discharge thereof, nor should the same bo attached for any debt or the bankrupt by any person, and tile Assignee for tho time being should have tue like remedy to recovor the same in his olzicial namo as the bankrupt himself might navo had if ho had not been adjudicated banknf|is Honour referred at length to tho caso of Herbert v. Say or (0.844), SQB. 965, where an uncertificated bankrupt brought an action upon a bill of exchange endorsed to him after commencement of his bankruptcy. Tho decision in that caso had been expressly approved by the Court of Appeal in Cohen v. Mitchell (1890), 25, QBD. 263. Chief Justice Tyndall's phraso that assignees may, whenever thoy. please, 'disaffirm the bankrupt s acts, meant that they might intervene, 'and that until'thoy intervened tho bankrupt had the Tight to sue, hut tiom tho moment they intervened the property passed absolutely, and could uo longer be recovered by tho bankrupt. Section 64 of the Bankruptcy Act, 1892, whilst it removed one of the reasons stated in Herbert v. bayer for the judgment in that case, nevertheless implied a power in an undischarged panirrupt to receive moneys accruing to him in respect of after acquired property, notwithstanding the provisions of sections 63 and 6J, and was consistent with the limited moaning put by the Court in Herbert v. bayer upon the corresponding sections in the statute 5 George IV cap. 16. He was, therefore, of opinion that as the official assignee bad not intervened in the present case, Hutchison was competent to sue, and he could not, therefore, stay the action on the ground of incapacity. v His. Honour then proceeded v to discuss the ! quostion as to whether Hutchison ought to be ordered to give security for costs. In the- case Wilkinson v. Johnston, Mr. Justice Williams, who ordered security to be given, had said that there was nothing in the Code about undischarged bankrupts suing, and that such a case was' so special that, where any question was raised about ''' quite proper that the Court should deal with it specially. Whatever to'Jo .r ave keen the rule in England up to ioco, it was, fllr. Justice Cooper continued, clear that security was not now ordered in such a case as tho present. Here Hutchison was tho real, not tho nominal, plaintill m the main action. The. Official Assignee, had- not intervened, and unless ho did intervene Hutchison was dominus litis If Hutchison recovered a judgment, and the Official Assignee did not claim the fruits of it, Hutchison 'was entitled to receive the, • , If ; Tntoout the intervention of tho Official Assignee, he did -receive it, ho would bo entitled, if the Official Assignee then claimed payment from him, -to some benefit under section 64 of tho Bankruptcy Act. From any point of view, he had, therefore, an interest in the subject matter of tho suit. His Honour was, therefore, of opinion that the principlo laid down in late Jlinglish decisions, ought to bo followed by him, and that, therefore, notwithstanding tho earlier ' decision in . Wilkinson v., Johnston, he ought to refuse to order Hutchison to give security for costs. The summons would bo dismissed. Subsequently, his Honour remarked that ■I Williams agreed with the resu t that he arrived at, and that the ] n „ W, ! kl . nson r - Johnston should not bo fo lowed m future. No costs would be allowed as counsel was quite justified, in tho face of the decision in the caso referred to, m taking out the summons. _ Mr; Treadwell appeared for Benge and Mr.' Putnam for Hutchison. IN BANCO. MASTER AND SERVANT. : ■ REFUSAL OF OFFER OF REINSTATEMENT. APPEAL AGAINST DAMAGES DISMISSED.

The case of tho New Zealand Fruit and iroduce Company (appellants) v. W. G. Taylor (respondent) was heard by Mr. Justice Williams yesterday. ' i This was an appeal from a decision by Dr. M Arthur, S.M., giving judgment for iaylor against the Company for £187 12s. on a claim for damages for wrongful dismissal. The main question was whether laylor had reasonable ground for refusing to accept an offer of re-employment. Mr. Herdman appeared on behalf of tho appellants, and Mr. Johnston for tho respondent.

His Honour, in delivering judgment, said that it was conceded that the dismissal in the present case was a wrongful dismissal. Taylor was, therefore, entitled, to. recover damages of somo sort. It was suggested 011 behalf of tho Company that he was entitled to recover only nominal damages. Taylor gave up his business at Rarotonga and camo down. to New Zealand for the. express purpose of entering .into the service of tho ! company for a year. If, therefore, before the expiration of the year Taylor- was wrongfully dismissed, ho would bo entitled , to recover tho whole of his salary until the end of the year. The caso might be put in vulgar speech ,in this wayplaintiff, was kicked out of the service. ' Now, when a man' was wrongfully turned out of his employment by tho wilful and unjustifiable act of his master, thou if the master offered him re-employ-nient it did not seem to him at all reasonable that tho man who was kicked out should be bound to accept it. Everything must depend on the circumstances of the particular case. Thero was evidence that the defendant Board was hostile to Taylor. 'It was quite clear they wanted to get rid of him. Then tho letter sent by them to Taylor did not contain any apology for tho wrong which had been done to him. Further,, there was evidence that, on the same date that tho letter containing the offer of reinstatement was written, a resolution was that, although Taylor was to receive the samo salary, ho was to occupy a subordinate position.' That indicated a certain .amount of distrust of Taylor by the company. Thero was 110 English caso which ho knew of where, under such circumstances, tho servant would bo bound to accept an offer of reinstatement. On tho wholo, the Court was not at; all prepared-to differ from the conclusion which the Magistrate had arrived at. Looking at all tho circumstances, it was not unreasonable for Taylor to have refused the offer made to him by tho company. For theso reasons it was his opinion that tho appeal should be dismissed. The appeal was dismissed with £7 7s. costs.

CLAIM FOR RETURN OF A DEPOSIT. Tho hearing of tho case of Fleming Ross v. Michael Frain was continued before Mr. Justice Chapman yesterday. This was an aotiou to recover tho sum of £100, being a deposit lodged by plaintiff with defendant, as a' security for ono Martinson for tho fulfilment-of a 6ub-con tract iu con- » '•>

nection with additions to Parliament House, aud damages for the alleged refusal- of defendant to' permit plaintiff to complete the sub-contract with Martinson. Mr. Bell, K.C. (with him Mr. Levvy), appeared for the plaintiff, and Mr. Sk'errett, K.C. (with him Mr. von Haast), for defendant. Evidence was not concluded when the Court rose for the day.