VENIAL OFFENCE

Dominion, Volume 24, Issue 62, 6 December 1930, Page 11

VENIAL OFFENCE

Woman Bankrupt’s Action FIRM REFUSES . SALE Bench Sympathetic . The venial offence of a woman, au undischarged bankrupt, who obtained credit from a firm whose principles forbade it later to have anything to do with what it considered to be an illegal proceeding, met with sympathy from Mr. J. S. Barton, S.M., when he heard a civil action in the Magistrate’s Court yesterday. He commended the morality of the firm, but firmly refused to award damages against the woman. Plaintiff was A. E. Bingham, baronet, of England, trading as Walker and Hall, silversmiths, of Wellington (Mr. Pringle), who claimed from Lucy Lelievre, tea-room proprietor, of Taihape (Mr. Mazengarb), the return of six tea-pots and six jugs, value £29/5/11, plus £lO damages for detention and £6 special damages for the cost of reconditioning the articles and loss on resale. Alternatively, the value of the goods was claimed.

Position Not Disclosed. The agreed facts were that on or about August 28 defendant, being then an undischarged bankrupt, obtained the articles from plaintiff. Payment for them was to be made on October 20. Defendant, in breach of the Bankruptcy Act, failed to inform plaintiff when obtaining credit that she was an undischarged bankrupt. On September 30 plaintiff learned that defendant was an undischarged bankrupt, and four days later served her with a,notice. Defendant did not give possession of the goods. An offer was made by defendant after September 24 to pay £lO down, £5 the following Saturday, and the balance on October 20, but that was refused. On October 24 or 25 a summons was served on defendant. On October 29 defendant sent plaintiff a money order telegram for £3l/5/11, being the price of the goods and the cost of the summons, but plaintiff would not accept payment. Evidence was given that the reason why the plaintiff firm asked for the return of the goods and refused to accept payment was because it considered it a felony to allow the purchase to go on; as defendant had committed a crime against the Bankruptcy Act. The firm desired to maintain a high standing, and did not desire to be mixed up in any illegal proceeding. Another consideration was the possibility that the Official Assignee in bankruptcy might seize the articles to pay for defendant’s debts. Damages Refused. Mr. Mazengarb submitted that there was no contract at all for a sale of goods on credit. There had been a cash transaction. The utmost damage that plaintiff could have suffered was the price of the goods, and therefore damages should not be awarded. The magistrate said the contract was illegal, and therefore was no contract at all. The question for the court was that of remedy. He did not wish to inflict on defendant what might be burdensome expenses.

“It was a venial offence,” he said. “I am not criticising the action of the plaintiff firm. If more did what it did. it would raise the standard of morality. But defendant did not know she had committed an offence at all. If the matter had gone before a jury, it would have returned a verdict of guilty, with a recommendation to mercy, and the judge would have said, ‘Go, and sin no more.’ That would have been the end of it." Plaintiff firm could accept the money now without misgivings as to its name.. Plaintiff could have either the return -of the goods or the money, but not damages. The parties agreed that the DeputyOfficial Assignee at Taihape should be communicated with for the purpose of ascertaining whether defendant could properly make payment for the goods.