SUPREME COURT.

Hawera Star, Volume XLVIII, 10 December 1928, Page 6

SUPREME COURT.

* CIVIL ACTIONS DEALT WITH. JUDGE RESERVES DECISION. 3 Further questions in connection with 1 the litigation between Ernest James > Lane, of Hawera, motor car salesman, ■ and Cecil Wilfred Heighten, of Hawera, motor car salesman, came before Mr 5 Justice Smith in the Supreme Court, 5 New Plymouth, on Friday. | On an application made by the defendant Heighten to set aside a bank- " ruptcy issued by the plaintiff Lane for the sum of £207 10s Id, being the balance due on the judgment obtained by him in the Supreme Court at the last sessions after the taking of accounts in the partnership. Mr A. K. North appeared for Heighton in support of the motion to set aside the bankruptcy notice and Mr P. O’Dea, instructed by Mr T. A. Kin-mont,-for Lane. , Mr North submitted that a bankruptcy notice under the Bankruptcy Act could only be issued if the creditor at the time of issue was in a position to issue execution; that the Act provided that a bankruptcy notice could be is- ’ sued only in respect of.a judgment in which execution had not been stayed. > It was therefore a question of whether r execution had been stayed in the pres- ’ ent ease. He submitted that there j could be both an express- stay of execution by the order of the Court and an i implied stay of execution by reason of the fact that the creditor had by his ’ own action in seizing goods of the ’ debtor precluded himself from obtaining ) a new writ of execution pending a re- | turn being made of the first writ of l execution. In the present case the posi- , tion was that on October 1 last a writ ' of execution had been issued. On October 2 the sheriff’s officer acting j under the writ seized and took posses- ’ sion of a Chrysler car. alleged to be ' owned by Heighten. On October 4 I Lane issued a bankruptcy notice with ■ a view of making Heighten bankrupt. , It was. submitted that in view of the ' fact that the Chrysler car had been first , seized, the bankruptcy notice could not issue until either the car had been sold or possession abandoned by the creditor. In this case the Chrysler car was im- , mediately claimed by Mr Finer who had purchased the car from Heighten prior to the issue of the writ of execution and . the sheriff decided to retain possession . of the car and resist Finer’® claim to . same. Mr Finer immediately issued a writ claiming possession of the car and damages for wrongful seizure. This writ was set down for hearing at the ! present sessions and the sheriff only decided on December 5 to release the car and settle Mr Filler’s claim for damages. It was now admitted that the car was not Reighton’s, but Finer’s, but at the time the bankruptcy notice was- issued the car was claimed by the sheriff as Heighten’® property and it was submitted that the Court had to deal with the matter on that- basis and not in the light of subsequent events. Numerous authorities were quoted in support of this submission. Mr O’Dea, for Lane, submitted that while there could be a stay of execution thy reason of the seizure of the debtor’s goods in this case it had been shown that the goods were not Heighten s, but Filler’s, and were therefore the goods of a third party and there was nothing to stop the further issue of execution against Heighten and that therefore a bankruptcy notice could issue. He submitted that the fact that the sheriff had filed a defence to Finer’s claim for the possession of the car and damages was only a formal matter and should not prejudice the position. He further submitted that the fact that a writ had been issued and a defence filed was not equivalent to interpleader proceedings. His Honour stated that he would take time to consider his decision and would reserve judgment.. A further question between the same parties then came before the Court in a motion bv Heighten to set oft a judgment obtained by him against Lane against a judgment obtained by Lane j against him. , ~ , Mr North, for Heighten, stated that his client had obtained judgment in tne Magistrate’s Court at Hawera for the suin' of £llO and costs amounting to £36 9s 6d. This judgment had been removed in accordance with the rules into the Supreme Court and judgment entered up there for the total sum ot £159 6s lOd. . . x Mr North stated- that Lane immediately he obtained judgment in his case issued execution for the total_ sum without allowing credit for the judgment in his client’s- favour. It was submitted that under the S-upreme Court rules Heighten was entitled to have tne judgment set off one against the other though it was admittej that this could not prejudice the solicitor’s lien tor costs Mr North further submitted that the motion filed by Lane’s- solicitors to strike out the above motion as frivolous I should be dismissed with costs as what- ! ever the legal position was m the matter ) the motion to strike out the proceedings- as frivolous was clearly taken under a misapprehension of the legal rights of Heighten which were expressly laid down in the Supreme Court n Mr O’Dea, for Lane, quoted author!tie« in support of his contention * the costs in the lower court could not be set off against the costs in the higher °°His- Honour stated that it seemed to him that the rules expressly pixmd for the removal of Magistrate s Court judgment into the_ supreme Court and for the signing of judgment there and he could not go behind the jud ment signed in the Supreme Comt the total amount of £159 ?s 10d- . Mr O’Dea further submitted that in view of the motion to set- aside the bankruptcy notice these proceedings u-cre unnecessary as the point was also “IS vfi also reserve judgment in this matter.