THE COURTS-TO-DAY.

Evening Star, Issue 8611, 3 September 1891, Page 2

THE COURTS-TO-DAY.

SUPREME COURT. —ACMIRALIY JURISDICTION. (Before fils Honor Mr Justicp Williams.) BARNARD V. THB SHIP MBNSCHIKOFF. . Action for master’s wages and disbursements. i • Mr Haggitt for the captain, and Mr Platts for the Crew, . Mr Haggitt said (hat the proceedings bad all been conducted according to (he rales. There was no appearance on the part of the owner, and the matter was undefended. Under the rules, when an action of this nature was undefended the Judge might, if he thought fit, give judgment on the evidence adduced by plaintiff. It was not necessary to have accounts taken where no question of accounts was Involved. The property here was of very small value, and it was questionable whether it would satisfy all claims, for tbp men— — Mr Platts remarked that the crew had recovered ia the lower Court.

Mr Haggitt: Aqd those claims take precedence of the captain’s. Bis Honor: There is no dispute between the captain and the men Mr Platts replied in the negative, It was perfectly understood that as soon as the vessel was sold the men Would be paid* and the rest go the Captain. Mr Haggitt took it that the costs of these proceedings came first; then the men’s wages; and after that the balance went to the captain. . Mr Platts t No doubt that is the proper course,

Mr Haggitt explained that it was an object to save expense as much as possible, and he would therefore ask that rule 140 be applied, this providing that if the property is of small value an order might be made without the issue of commission of sale. After outlining the history of the case, learned counsel said that some time ago the owner admitted liability for a larger amount than was now claimed. He would call the Captain to depose as to the facts. John Barnard, recently master of the Mensohikoff, said that he joined the vessel on 23rd Marah in Sydney. The verbal agreement with T. 6. Green, the owner, was for Ll6 a month.

Mr Haggitt produced an account showing that this rate of wages was acknowledged, Witness, continuing: He asked for wages for six months, the period for which the articles were made out. The total was L 96. His disbursements were : In Sydney, L 29 2s fid: in Newcastle, L4110s; in Lyttelton, L9O 4: fid ; in Port Chalmers and Dunedin, L 39 6s B£d; total, LIU 14s 6i. Then there was L 7 Is for rent and hire of chronometer. The vessel had no chronometer, and witness hired one with the consent of the owner, The advances to the crew came to L 25 7a 7<L Witness received on account of the vessel LB9 18s fid, leaving a balance due to him for disbursements of L 57 4s 7Jd, which, with the L 96 due as wages, made up the amount now claimed. The vessel arrived on June 27. The owner has no money whatever, and consequently there are no funds out of which to pay the crew or the disbursements. She got into difficulties in this way: On the seventeenth day from Newcastle, when off Oamaru, she was caught in a heavy gale of wind, and a heavy sea struck her, slanting the deck load and smashing the bulwarks, and she commenced to make water in her top sides. Witness bore up for Lyttelton to save the ship and cargo, At Lyttelton witness effected repairs, and then brought her on to Port Chalmers. The repairs at Lyttelton were not paid for. Proceedings were taken to recover for these repairs, but the action was abandoned because there was no chance of recovering. The men then obtained judgment against the vessel for Ll6O or Ll7O, and witness’s claim was L 153 4s 7^d. Mr Haggitt said that he presumed this would be enough. He would ask first for judgment, and then for an order for a sale without appraisement by public auction. His Honor gave judgment as prayed.

SUPREME COURT—IN BANKRUPTCY. (Before His Honor Mr Justice Williams,) BE DAVID M'LEOD, Summons to landlord to show cause why his claim to rank preferentially in respect to twelve months’ rent should not be discharged, and why he should not come in preferentially for six months’ rent only, Mr Webb appeared for the Assignee, and Mr Hosking for the landlord, Daniel Haynes. By way of preliminary Mr Hosking said that the form of the summons hardly represented the position. The queation before the Court should, he submitted, be treated as if the distress were still subsisting—the landlord should be deemed as in possession —and it would be for the Court to determine whether the distress was still available as against the Assignee, Mr Webb said that the Assignee did not ally himself with either side. The facts were that on the 22nd August David M'Leod filed a petition in bankruptcy. On the same day, and, as he alleged, before the time of filing, Haynes distrained for twelve months’ rent. By arrangement between Haynes and the Assignee the bailiff— Haynes’s bailiff—was withdrawn on the understanding that Haynes’s legal position should not be prejudiced by that act. On the Assignee making inquiries with a view to settling the question in dispute, he found a conflict of evidence, which rendered it difficult to ascertain which act took place first, the filing or the entering of the bailiff. The Assignee was trustee for all the creditors, and, finding that any decision he gave would be unsatisfactory, he sought the assistance of the Court. The only question in dispute was whether distress was made before or after bankruptcy. If made before, the distress was available for twelve months’ rent, as was held in re Krull; but if the distress was not made till afterwards, by the Bankruptcy Act it was not available. The Assignee, as he (Mr Webb) had said, did not deem it his duty to advocate one side more than another ; but the question might arise as to whom the onns of proof was laid upon. His Honor said it seemed to him that Mr Webb had a very good ease at law, even if the distress was levied afterwards. His Honor’s present opinion certainly was that the filing related back to the earliest moment of the day, if the filing was a judicial act, which it seemed to be by the statute.

Mr Webb said that he would proceed to call his evidence, and leave till afterwards the citing of authorities. Saul Solomon, solicitor, gave evidence to this effect: I remember the 22nd August. I saw David M’Leod that day, the first time in his shop. Had a conversation with him, I was aware previous to the 22nd that negotiations were pending between M'Leod and his creditors. I was in the Assignee’s office that day, about a quarter past twelve, before I saw M'Leod. While there, Mr W. G. Neill and Mr W. Gregg came in. They said that M'Leod would have to file, and that they had called for the bankruptcy forms, I accompanied them to M'Leod’s shop. When we arrived they informed M'Leod of the object of their visit. He refused to sign the bankruptcy petition without having time for consideration. It was explained to him that it should be done at once, as there was a Sunday intervening —this was a Saturday—and it was necessary to give the proper notice, and they wanted this done on the Saturday. I suggested to Mr Gregg and Mr Neill that they should retire to allow me to have a conversation with M'Leod and see what his objection was. We had a long conversation. He then went to see Haynes, and presently returned and asked me to go into Haynes’s shop with him, I did so. We then had another conversation—he, Haynes, and myself, at which Haynes was made aware that M'Leod would have to file, and probably that day. 1 then returned to M'Leod’s shop, and he signed the debtor’s petition. I knew that the Assignee would not be back to town till that night, so on my way to my own office 1 called on Mr M'Kelvey, the Assignee’s bailiff, to tell him to take possession till the Assignee returned. Haynes was sitting at the table in M'Kelvey’s, writing something, I passed down Princes street on-the bank ’ side, and wifen far enough down to see the Colonial Bank olook I noticed that it was between ten minutes and five minutes to one. Being Saturday, I had to get In the petition by one o'clock. I went to my office and attested M'Leod’s signature, and then asked my clerk to draw a cheque for the

fees of filing. He thought he had enough money by bim« and as I stood while he counted it I said that he moat hurry; that he had only five minutes to do it, I noticed that the band of, the clock was just quitting the five minutes to one.i He left .hurriedly with.the petition. He had no stamps with him, and would probably get them at Jacobs’s, Albert E. Gascoigne, clerk to Mr Solomon, said that on the 22nd August he filed the petition, as instructed by Mr Solomon, It was between two and three minutes to one. fie had noticed the bank clock as te left the office, It was four minutes to one then, and he had to go to Jaoobs’a for stamps. Also noticed the time by the Supreme Court office clock, and made a remark to Mr King: “ I’m just in time.” George A. King, deputy registrar, of the Supreme Court, confirmed the last witness’s evidence.

To Mr Hoiking t His olook was set by the town Hall olook. Robert Paterson, accountant, recently, in the employ of M'Leod as bookkeeper, said that ,he did notice what time it was when Mr Solomon.(eft the shop with the petition. Mr Haynes’s bailiff came between ten minutes and a quarter-past one, as nearly as witness could calculate from having looked at his watoh just previously. To Mr Hosking: Witness was paid by a salary. Had no share of the profits. Was at present an undischarged bankrupt. There was no understanding;as to witness going into the business. His salary was Li a week, tne same as was paid to the man who previously held the situation, Was aware some three days previously that bankruptcy was impending. Did not make out a statement of M‘Lead’s affaire, nor make a list of the stock. Was a distant relative of M'Leod’s, and used to be in partnership with him, Got a list of stock from the Assignee to copy out, and put it in my desk. Had not had a dispute with Haynes some time before. Was always on good terms with Hayhes. Haynes had once said that he would not take witness’s word, because some rent owing was not paid as promised, bat they had no words over the matter. Witness was positive that at one o’clock the bailiff was not there, If the bailiff said that he was, that would not change witness’s opinion. Alexander Healey, late bead salesman to M'Leod, said that on the 22ad August he left the shop at twenty minutes past one. The bailiff was in pcs session then, To the best of witness’s belief, it was after one o’clock when the bailiff came. William G. Neill, merchant, said that on the 22ad August he was in M'Leod’s shop, and left between fifteen and twelve minutes to one o’clock—after Mr Solomon left, As he turned the corner of Rittray street it was seven minutes to one. There was no bailiff in the shop when he was there. He was talking to Dr Fitohett for a few minutes at M'Leod’s door before he left.

Mr Webb said that that was all the evidence he had to offer. He would cite authorities afterwards.

Mr Hosking then proceeded to call evidence.

Daniel Haynes, draper, said that Mr M'Lsod and Mr Solomon called to see him before one o’clock on the 22ad. After they left witness went to M'Kelvey’s. He wished to pat ia a bailiff before M'Leod filed. Was alive to the fact that if M'Leod filed before the man got in bis (witness’s) claim would be prejudiced, He ran to M'Kelvey’s. It was about a quarter to one when he left his shop. It took him a minute and a half or two minutes to fill in the warrant, He was just signing his name when Mr Solomon came ia. M'Kelvey took the warrant. Witness returned to his place of business, and it was seven or eight minutes to one when he got back to his office, Did not are the bailiff leave M'Kelvey’s, and did not see him in the shop. James E. M'Kelvey, bailiff, said that it was a quarter to one when he went into bis office and found Haynes there, He bad looked at the Colonial Bank clock just previously. Haynes said that it was imperatively necessary that the bailiff should be in before the filing took place. Witness bustled off the bailiff at once, telling him he must get there before Mr Solomon reached the Supreme Court. Phelan, the bailiff, loft about a minute efeer Mr Haynes. Mr Solomon left almost immediately after Mr Haynes. Witness fallowed Phelan to the door and saw him making an angle towards the Criterion. It was 153 paces from witnesses office to M'Leod’s, and 208 paces from witness’s office to Mr Solomon’s, Witness imagined that Phelan reached M'Leod’s about nine or ten minutes to one. Had no doubt that he arrived before five minutes to one.

Michael Phelan, in the employ of Mr M'Kelvey, said that he knew it was important that be should be in possession before Mr M'Leod filed. Went out immediately after Mr Solomon, and walked pretty quickly to M'Leod’s. Did not go into the Criterion. Did not notice the time particularly, but was pretty sure it was some time before one o’clock when he got to the shop, James M'Leod, keeper of the Queen’s Bond, was in M ‘Leod’s shop at six minutes to one o’clock on the 22ad August, Saw Phelan there at that time. He was sitting in the office at the back. Left the shop at a quarter past one. Daniel Turner, bookkeeper, said that be was In the shop at five minutes past one, and saw Phelan there. Was very certain as to the time. This was all the evidence that Mr Hosking had to offer. Mr Webb was about to address the Court, when His Honor said that ho thought there was a very good question of law, and he would like to hear Mr Hosking upon it before calling upon Mr Webb. The point he referred to was that where there was a judicial act and a non-judicial act, the judicial act was supposed to have commenced at the very first instant of the day. The question arose: Was the filing a judicial act ? Mr Hosking proceeded to contend that the filing could not possibly be taken to be a judicial act, and that the rule as to relating buck did not apply. Learned counsel .further contended that the onus of proof laid upon the Assignee, because he sought to remove possession from the landlord. Mr Webb replied, contending that the only ground of his learned friend’s argument was the inequitablenesa of Haynes’s distress being invalidated by this filing, while the faot was that it had been held that the rale mast apply even if it was against common sense. In giving judgment. His Honor said be was at first inclined to think that the filing of the bankruptcy petition must be considered as a judicial act, and that it would have relation, on the authority of Collins and Edwards v. the Queen, to the first instant of the day, and therefore would take priority of any distress that might be levied in the course of the day. On consideration, looking at the terms of our Bankruptcy Act and its amendments, he did not think that was a right conclusion, but he was satisfied that the Court in the present case could take notice of the fractions of a day, and ought to inquire which act took place first—the filing of the petition or Haynes’s distress. ... On the merits, he thought there could be no doubt that the balance of evidence was in favor of the view that Haynes’s bailiff got a start by some three or four minutes of Mr Solomon, and that the bailiff was in before the petition was filed. The summons would be dismissed, with costs (5 guineas), witnesses’ expenses, and disbursements.

RESIDENT MAGISTRATE’S COURT. (Before Messrs W. Gregg and J. Grindley, J.P.s.) G. M. Wilkie v, Edmund A. Harris (Caversham).—Ls 10s, on a judgment summons.—Mr Thornton, for plaintiff, asked for an order for Immediate payment, stating that defendant, who did not appear, was In employment.—Ordered to pay the amount within fourteen days, in default three days’ imprisonment. Thomas Paterson v. George Smith.—Lls 0s lid, on a judgment summons. Mr A. S. Adams appeared for plaintiff, and after examination of defendant an order was made for payment by Instalments of 20s a week, in default fourteen days’ imprisonment ; .the first payment to be made this dftv W66k* Secular and Chisholm v. Henry Pratt (Fnketeraki).—L3 17s lid, for fnrnltnre. Mr Thornton appeared for plaintiffs, for whom judgment was given by default,

* New Zealand Tablet ’ Company v. John O’Neill (Pleasant Polnt).-L2 19s 6d, for subscription, Mr. Callaway appeared for plaintiff, for whom judgment was given by default. I.i

Same :v. John Bradley, aen. (Naseby).— (i 3 10a 6d, for subscription. . Mr Gallaway appeared herein, also, and judgment was given for plaintiff by,default.. i ; E. Vanstope y. Andrew Nilson.~L4 5s 7d, for meat supplied. Mr Thornton for plaintiff, and Mr Hanlon for defendant. —The latter stated that his client was not liable at all, as he was only a boarder with a Mr and Mrs Lawson, at Sonth Dunedin.Judgment was given for plaintiff for amount claimed, with costs, , John Wright v, John Leljiott.—L3 6i 6d, balanoe due for rent. Mr Adams for plaintiff, for whom judgment was given by default.

Official Assignee (in the estate of James Neebit) v. Simpson Dunn.— L 3 17s 4d, for goods supplied,—Mr Wilkinson for plaintiff* for whom judgment was given by default. H. G. Vino v. George Bain.—Ll 8a 9d, balanoe due for milk supplied. Mr Fraser appeared for the plaintiff, for whom judgment was given with costs, 6. H. Vine v, Kenneth M'Lennan.—Ll 15s 3d, for milk supplied. Mr Fraser appeared herein also, and judgment was given for plaintiff by default. James Donnelly v. George Anderson.— LI 10s, for bread supplied, Mr Hanlon, who appeared for pjaintiff, stated that defendant came to bis client a day or two before the Labor Day demonstration and ordered bread for it. The defence was that defendant was acting simply as agent for someone else, but he had not disclosed this to Mi Donnelly, as he should have done.—After evidence, judgment was given for plaintiff for-the amount c’aimed, with costs {l6 j 6d).

Thomas Bennett v. D. Ross and Alex. Shaw.—Llo, on a dishonored promissory note. Mr Solomon appeared for plaintiff? and said that Mr Wilkinson appeared for one of the defendants, and that person had admitted the claim. The other defendant was to have come to his (Mr Solomon’s) office, but he had not turned up. He also admitted the claim.

Official Assignee (in the estate of James Nesbitjv. E. Chaplain;—Lß Is Id, for goods supplied.—Mr Wilkinson appeared for the Assignee, for whom judgment was given after evidence had been taken.

CITY POLICE COURT. (Before E. H. Carew, Esq., R.M.) Dbunkenness. —A first offender was convicted and discharged. Indecent Assault .—Dennis M l Donnell, a boy, was charged with, on or about the 16th August, at Dunedin, assaulting Susan Jess, under the age of ten years.—Mr Stilling, for accused, asked for a remand, as accused was only arrested last night. The information was only laid this morning, and he had had no time to prepare bis case.— Chief-detective Henderson said accused was arrested about six o’clock last night, and his father was acquainted of the fact immediately afterwards. AH the witnesses were present, and for that reason he (the speaker) would prefer that the case should be gone on with.—His Worship held that, as the case was a serious one, defendant’s solicitor should have time to prepare the defence.— Accused was remanded till Monday. Bail was allowed—two sureties of L 75 each. Dennis M'Donnell was further charged with, on or about the 15th August, assaulting Lily Crawley, under the age of twelve years.—This case was also adjourned till Monday. .