IN CHAMBERS.

Evening Star, Issue 5171, 1 October 1879, Page 3

IN CHAMBERS.

He George Capstick (trustee in the estate of J. Burt, bankrupt).—Summons calling upon the creditors, Bing, Harris, ami Co., thtir solicitor, or agent, to show cause why the said George Capstick should not bo discharged from imprisonment. Mr Howorth appeared to show cause, and Mr Mouat to move for the order discharging the bankrupt. Mr Mouat relied upon sections 2G and 82, of the Debtors and Creditors Aot as protecting Capstick from process. He also maintained that the proceedings were irregular, as the costs should have been annexed to the writ. It would be difficult ho thought for his learned friend to prove that the arrest of Capstick was not contempt of Court, but he had no desire to go into that question, as he submitted the provisions of the statute in clause 26 rendered the order of the Court nugatory, and that the burden of satisfying the Court of the propriety of continuing the attachment lay with the person who sought to render the procrss available. Mr Howorth to)k several preliminary objections, and submitted that the ctntrolling words of the 26th section of the Act were whether the debt was provaable under the bankruptcy. In respect to this he contended that Capstiok had not been arrested in respect of any debt, but for contempt in disobeying an order of the Court. Neither would the 86th section of the Act avail, becauso that referred to proofs of preferential payments, etc. The test was whether the debt was such that a oreditor seeking adjudication would enforce it against the bankrupt, and no one could so enforce the claim against the defaulting trustee. The remedy, then, for the trustee was to show merits, and he (the learned counsel) submitted that Capstick could not be discharged without an order of the Court. Capstick was no moro privileged from arrest by tho section than a solicitor or officer of 1 the Court (who was a defaulter) would be ; and such a person would not bo allowed to excuse bimHelf for any dereliction of duty or breach of trust by fllirg a declaration of insolvency. Mr Mouat roplied. His Honor Mr Justice Williams, in giving judgment, said : Capstick, being trustee in tho estate of Burt, was ordered by the District Court to pay certain moneys received by him as trustee to the credit of the estate. Ou the same day an order was made removing Capstick from his trusteeship and appointing Lewis in his place. Capstick did not comply, and Lewis, on the proceedings 1 eiug removed to the Supreme Court, became the person entitled to enforce payment of this money by process of contempt. The amount (f which Capsiick had made default the learned Jud&e held now provable by Lewis on behalf of the general body of Burt's creditors, and was therefore a claim under Capstiok's bankruptcy, and was a debt within the meaning pf the 26th section of the Debtors and Creditors Act. The construction of tho word " debt" in the 26th section was a debt in respect of which a dividend could be obtained under the bankruptcy, and was certainly not limited to the kind of debt necessary to a petition for adjudication. It therefore followed that no process against the person of the bankrupt was available in respect of any such debtother than such as m ; ght be had against a debtor about to depart out of New Zealand, would be available without leave of the Court. It seemed to the learned judge that the object of an j attachment was not to punish the person attached, but to recover the money, and if it appeared pretty clearly that he was not in a position to pay, His Honor could see no reason why the process should remain available, and some special reason must be shown to continue it available. The order would | be made for Capstick to be discharged by the operation of the 2Gth section of the Debtors and Creditors Act.—Order granted. RESIDENT MAGISTRATE'S COURT. (Before W. L. Simpßon, Esq., R.M.) Judgment was given for plaintiffs by deficit in the following oases:—Frederick Stohr t. Alexander M'Laughlin, claim, Ll3 8s on a judgment summon* (ordered to be paid by instalments of L 3 per month, in default fourteen days' imprisoiment) 5 Jsmei Hardie t. James Hoeper, L 3 2s, for goodssupplied ; Guthrie and Larnach t. William Aitkins (Clyde), L 29 15s 3d, for goods supplied j Same y. C. H. Douglas, 18 6s, for foods supplied; John Treasurer v. A. J. >evereaux, L 4 10s, for goods supplied. Archibald Wilson v, D. L 6, for wages due as seaman. Mr Lewis appeared for plaintiff; Mr Mouat for defe»« dant.—Judgment was given for plaintiff for the amount claimed, with costs. Thomas Mooney v. D. M'Leod.—Claim, L 4 lOi, for wages due as seaman.—Judgment was given for plaintiff for LI 6s 3d, with costs. Guthrie and Larnach v. William Agnew.— Claim, L 29 15s 3d, for goods supplied, and on a dishonored promissory nete. Mr Stot % , appeared for plaintiffs.—Judgment was givoa for plaintiffs for the amount claimed, with oosts. Patrick Toole v. John Farrell.—Claim, LI 16s, for rent due.—Judgment was given for plaintiff for the amount claimed, with costs. Daniel M'Leod r. Archibald WilflOH.— Claim, LlO, damages sustained by plaintiff through defendant s negligence on board the Eliza M'Phee. Mr Mouat appeared for plaintiff; Mr Lewis for defendant.—Plaintiff was nonsuited. ■_ CITY" POLICE COURT. (Before J. Logan. Esq., J. P.) DfiUNKKN5K33.—James Austin was convicted and discharged ; James M'Donald, James Smller, and Henry Ayers were each fined ss, in default twenty-four hours' imprisonment j John Adams, 10s or forty-eight hours, Maintenance.— William Fisher was charged on remand with deserting his wife, Ellen Fisher, and two children, and leaving them without adequate means of support. On the application of Detective Henderson, who explained that the parties were now living together, tho case was withdrawn. Disorderly Behavior.—George Walters was charged with conducting himself in a manner calculated to provoke a breach of the peace in Moray place shortly after midnight yesterday.—Constable Hughes stated that there was a disturbance at the coffee-stall in Moray place, ai.d he saw prisoner rush at another man, seize him by the coat, and assault him.—He was fined 20s ;in default, four days' imprisonment. False Representations.— Robert Carrigan was charped on summons with having, on the 23rd ult., at South Dunedin, unlawfully imposed upon Margaret Liston by a certain false representation, with a view of obtaining money. Defendant, a lad, was not present, but his mother appeared for him.—The Bench directed a warrant to issue for his apprehension. Jumping on to a Train.—William Scott! was charged with having, on the 23rd ult., jumped on to a railway carriage while the train was in motion. The defendant was late in leaving school, and had reached the central station just as the 3.30 train left. As he promised not to repeat the offence, the Bench inflicted the mitigated penalty of Is and costs (lis). Disorderly Prisoner. John Johnson was charged with being drunk and disorderly at Ravensbourne at 10 o'clock last night, and with assaulting Constable M'Lauchlin while in t! e execution of his duty.—The constable deposed that ho found the defendant lying on the road with a whisky-bottle in his hand, and that when he attempted to arrest defendant the latter ran along the railway-line and jumped over the wall into the water. He only remained there a short time, and on witness again attempting to arrest hira he struggled violently.—Mr Ziele merchant, stated that defendant had been in business as a storekeeper at Ravensbourne for a short time, but had been unsuccessful, and this seemed to havo preyed on his mind. Witness had noticed him particularly htely, and thought his mind affected.—The Bench dismissed the charge of drunkenness, and for tho more serious offence sentenced him to seven days' imprisonment.