SUPREME COURT.

Dominion, Volume 2, Issue 497, 3 May 1909, Page 11

SUPREME COURT.

IN CHAMBERS.

SPECIAL JURY REFUSED. . Judgment was feivon by Mr, Justice Den?ciston. <n Saturday u-ith rega'rd to,a;motion on behalf, of plaintiff that tho case of - : T-. W.' Stringer,. K.C.',; Crown- Prosecutor at -■■ -ChristcLuroh, .vorsus John Norton, should bo : heprjl lofore.ia .special -jury.- -Tho claim in ' -this action is for £2000 for alleged libel. ■' -His Honourrefusedto grfiht a- speci.il jury ' on J the; grpiirid; that; no. expert : knowledge'on. yJO.r . '..the.-part; of' fho. jvtry, was; necessary. : V ,-' ~', Mr. Skerrctt,' K-C.y appeared-for plaintiff : and Mr.' Dunn for.defendant.-' - SOLICITOR ADJUDGED BANKRUPT. IMPORTANT JUDGMENT. A petition by tho Wellington Timber Com- , pany, to adjudicate William, George Somor- . - vill?, , solicitor; 'Wellington, a 'bankrupt, -.wformed! tho subject of a judgment delivered . by Mr .'Justice Cooper on Saturday. ' According.to .tho petition, which was filed I . . on' November 13~190$—dcbtorv.as indebted - ; to i; th©:coinpany:m tlio sum of £253 17s. Sd., ■\ >;.i,:; :■ being tho amount .of -two judgments obtained' . by tho company against him on, October 8 and ■ 20, 1903; .that execution was issued by i. - warrant'of distress on Octobor 23, 1908,' and return of nulla bona-was made on October v .28,; 1908;. that the .company. security j for.: : the.debt,.and that tho debtor-was rtsi- • dont,- in, New- Zealand and had carried "on .business in Wellington for six-'months proceeding'the signing of • tho petition. Upon ■'. those grounds 'the 'company prayed 'that .the. • .. •: debtor .might-bo adjudged bankrupt. -■ Affidavits;had been hied; his Honour said, that owing to the fact, that p.n.'s current -- • when .the judgments -were .obtained-had since : . been -dishonoured, the amount due by debtor ■■•i . ... to. tho,company',on March 15. last was £572,' and .that tho ( company hadjno -security for '/£•■ tho debt. - First of all, ho would deal with • a number of' technical objections which had been raised on behalf of' debtor.- It was eubmittcd that the petition .was . not 1 pro-, •'.. perly'attested.''Section. 28 of-tho Act required siguatup .of 'tho petitioning 1 ' : 'S;,•••'. creditor; to -b©: attested.'by.- the 'Registrar! or 'by a solicitor, or by .a J.P. Tho'petition :was.executed by .the affixing of the connnon ... , seal -of itho. company -in .the'presence of two .directors, the' secretary of tho. com-- • - tJustico- of. the •Teace -had •'sub- ,. : eonbed his Danie as ,witness. 1 In. the opinion !V'/' !* ®fjQotiour i" thatwas i • 'sufficient.*','attcs** ; / V : ' N®?tr. jt!' W ' . tho 'y^ification'of, .the.-petitions was /. ~ sworn before>tho .petition.-was 'filed. - Following Ycung • versus Brassey and in re ' • <- • .• must' be* He was slso called uj>on to decide whether ,;the/affidavit.-in.question v was / a - sufficient vonfication of "■ >;tho '■ position.'. ' .'Mainly r °"m • und that Mr. Fair had a ... sufficient-, knowledge, - acquired from the' company's manager, of tho facts to enable him to make tho affidavit within the terms of Secf tion ' 36 t hp/ 'must ;', over-rule ■the . objection'; t. ■ ■ > thai whilo the sum- •' vwas issued on 'Novembftr 13, '.v -. > 1908, was pending a fresh summons w»s taken Dut.on March 16, 1909. He would hold that '■:''-.V;-v- ! ;-.-fHrw ! n#d;:n°t'';in~fa^' : b.Ma ; abaad6ried-tH'iityit ■; nras still effective, And -that -the 'second sum-' ™ 0 ° 3 l ' t L a . s »Pt in law- ?.n abandonment of th« ( hrst. - ,The-second summons would-be treated •' ij® should :not. have . aunng tho- pendency of the first,' - and ho ..Wpuld aot upon; the. initial one; :: Another?obs jeotion that ,tho petition was bad' becauso it alleged .that-a warrant of distress was is- : 'I SUad out against, the debtor and did not state . , ■that, it.was .against the debtor 5 s property - was ■ .:®e ;f mere^!; technicality. allegation "in the petition clenrly meant that an oxecu- , tion; had been issued -against the' debtor's -. property , and not against, his person. Regarding tho -return made by tho bailiff Ait must be held'that it established the act of , ; - bankruptcy ■ allegeajj ji ros^s > continued his Honour, 1 upon ,the debtor, to .satisfy tho Court, (a> th*t he 13 aW. 0 to- PV his dobts, or (b) that for other - ' ' SW OI P n t--causet no--order.- ougbt -to be raade.-' v; . Debtor had -not adduced any evidence' tendi ing to show that he waß able to pay 'his' debts. However hi 3 counsel had contended firstly that tho petition hud; been filed and used as a_ means of oxtortion, and secondly ;/ V that: a period of some five'months had elapsed sinco tho petition was filed. It appeared that before the day. on which the summons wb ..:. to , be. heard debtor asked • the Company to ,- .. , consent to an adjournment' in' vk'w of a contemplated meeting of his creditor?. 'At the ~, ~las^, meeting on Dficomber 23 debtor proposed a of ss. in the £ by six months' "'" s j but some, of .tho creditors -, would not t "° com Po sition. On January 27, 1909, tho company nrote to debtor statins that unless ss.'in.the £, plus interost and 'W' ; . costs, . was. paid' before February 2 1 the ... petition would be heard.' Tho company was ■• ■' •, prepared . ; to '■ accept s those ,-su'mS m satisfaction of the whole debt. Again tho .hearing was adjourned by consent, the company agreeing to accept -tho composiil 13 ? .mentioned provided debtor .; paid £50 that day on account of the composition, , £50 within a week, and. the balance'within , one month. In accordance -with tho-- agreement tho first instalment was paid, but there had beet, no further payment-. Ultimately the hearing took place on April 24 1 In the cases citcd on behalf of debtor, in whioh petitions had . been dismissed on tho ground of extortion, a bonus was paid for the adjournments. Tho facts in the preseiit, pase disclosed no evidence of extortion: . and the delays wore not, a sufficient causo to justify the dismissal of the 'petition. There could bo no, definite rule-laid down as .-.'J®, -what-.delay- 1 was sufficient•:to 'justify tho Court- in refusing ,to adjudicate a .debtor .a ' ; 1 . bankrupt when a sufficient act of bankruptcy had been proved upon a petition filed within ' the requisite time.. If a petition was for. the purposj of obtaining some 'unfair .advantage ovor'the: creditors, and was held over from tinio. to titne, that, would be a'sufficient cause for refusing to mako an order. There ,; : vaß.j^in9ic&tion'ihat'thav'wM..t]ie'case'in' :> 4: one' sense . .. tho adjudication-sought was in tho .intowst 3f, the other ,He would make the .necessary oHer adjiidging debtpr a baflkrupt; ' : tho .bankruptcy to relate-back' to October 28,'' \ . ; 'Mrr .• The £50 'paid' to'the company;would,: '-i to him j ; hayo to.bereiunded by'.it' to the' Official Assignee. ,/ , 1 ' - On. bchajf of debtor application . was made ffn- ■ i-. • ccs '' appeal and appoint tho .-• ■ Uuicial Assignoo receiver in.the estate pend-' ing tho result. !; ' His Honour suggested that the. proposed .. ; appeal misfit bo brought on at thc- curront sittings of the Court of Appeal. - i a ? re ° ll tho parties , that ; the Court should, make an ortler appointing tho Official. Assignee receiver in tho estate, and'tho costs of appeal wero fixed by tho Court at £20. ......... . ; ... . 'v. ' Mr; on'sbehalf of-the petitioning creditor,, and Mr. Bcoro for tho dobtor. i