SUPREME COURT.

Lyttelton Times, Volume LXXX, Issue 10111, 9 August 1893, Page 3

SUPREME COURT.

EST CHAMBERS. Tuesday, August 8, (Before his Honor Mr Justine Dennistom) Mr Eitohio obtained letter#, of ad minis* tratioa of the estate of Enpbemia Taylor, deceased, and Mr Deacon directions in the case of Livery v. Lavery (in divorce). The case was fixed to be heard before his Honor alone at the next civil sittings. In the ease of the New Brighton Tramway Company against Knight his Honor directed that the statement of defence be amended. IN BANEETIPTCY, BE T. W. MAUDE. Mr Joynt appeared on behalf of Robert M’llraith, to pray that T. W. Maude be allowed permission by .the Court to release M’llr&ith from a mortgage. Mr Stringer, who appeared on behalf of the Official Assignee, said it was considered neceaaary to let. Captain Burgess come in. That waa the only difficulty. It was clear that there was a trust in favour of Captain Watson as against Harper and Co. It appeared that there was a declaration of trust in a book kept by Harper and Co. for that purpose. It would not affect Mr M’llraitb. as notice had probably been sent to him. Mr Joynt said he had nothing to do with. Captain Burgess whatever. No notice whatever had bean given, to M’llraith terminating the agency of Scott and Maude. The mortgage in question had beau transferred, and Harpar and Co. had continued to receive interest. Watson had money placed on the security. MTlraith bad continued to pay bia interest till 1392, when ho had been asked to pay off the mortgage and the purchase money. This he had done by giving a bill, and dating the currency of that bill the bankruptcy of Harper and Co. had taken place. M’llraith had.received no notice. It would be an extreme hardship to have to search for Captain Watson and Captain Burgess before the matter could be settled.

His Honor said that hardships had to be borne. He could not touch what might be another man's rpijita in his absence. Mr Joynt said that the persons authorised to receive fcha money had received it. They had bscoo,ia Watson’s agent after the security had been completed, and no person until Vaen could possibly release it. Hia Honar said that both payments had keen made with the knowledge that they were being made, and that M’llraith was re-held for someone else. Ho must be well Satisfied on ail points, as Watson was not present. He had no right to dispose of any man’s rights in his absence. Mr Joynt said that Captain Watson could not controvert any of the facts he had to bring forward. He could show Watson’s own letter to Harper and Co., which wonld prove that Harper and Co. had the fullest authority to receive the capital and interest. There had been several sums invested for him to the total of .£I7OO. In IS9O he had wanted to release this particular £3OO, which had been done. * la 1892 Harper and Co. were still acting as Watson’s agents. The bill M’llraith had given had been discounted instead of cash. That was a payment, and the bill had been met at its maturity.

His Honor said the agency was a supposition, and might be disputed. It would not do to go into this matter in Watson’s absence.

Mr Joynt said the agency had been created by the appropriation of the security to Watson. The money given in security was Watson’s. It was quite clear that had Harper and Co. not become bankrupt, and Scott and Co. had released the mortgage, Wataon could not possibly have disputed it. The bill had been given before the bankruptcy, and therefore the debt had been paid before the bankruptcy. His Honor said this was entirely incorrect, because the bill given did not pay the, debt. The payment was made when the bill matured. A bill was a mere pledge in the bands of a third party, and as things turned out was given for the accommodation of Mr MTlraith. The giving of a bill did not pay a debt. He failed to see why this case should bo brought into a Bankruptcy Court, as he was not sure that the Official Assignee had anything to do with it at all. Mr Joynt said that Scott and Maude were the only persona recognised as the mortgagees, and they had signed the receipt for the money. Mr Maude declined to release the mortgage without the consent of the Official Assignee or the leave of the Court.

His Honor said that if the money waa held in trust it did not affect the Official Assignee. Mr Joynt said he had brought the case bo the Bankruptcy Court because the bankrupt had refused to act without the sanction of the Official Assignee. The order asked for was to give the bankrupt permission to release the mortgage. The Court had control of the bankrupt, and could order him to do anything for the purpose of justice. The bankrupt waa prepared to submit to the Court, as he said in a letter, but he declined to act unless the Court gave him permission. He believed this to be tbe correct thing. If the Court could not take steps to make Mr Maude sign the document releasing the mortgage, Mr MTlraith would have to bring a suit and thus take means to secure his rights. His Honor said it appeared as if means were being taken, although in a rather wrong direction. Because a man was a bankrupt, was tbe Bankruptcy Court to deal with other property than his own ? Mr Joynt said the queatioa was altogether between strangers, and the bankrupt waa one of the parties interested in the case, and he was willing to be guided by the decision of the Court. The facts were as correct as could be proved. Hia Honor said the whole question was being brought in .theabsence of Mr Watson, It waa not held that the case was so overwhelming that the presence of Mr Watson could not possibly make any difference. Mr Joynt contended that any interest that Mr Watson ever held had been extinguished by the payment of the money. Hia Honor said that if he made any order it would not be to the effect asked for. The mere fact of Maude being a bankrupt could in no way alter the position of Mr Watson. Supposing Mr Maude was not a bankrupt, would these proceedings go on without Mr Watson? Nothing could be done. Mr Joynt said that if Mr Maude had not been a bankrupt, and was not inclined to do what was wanted, a suit would have been brought. His Honor said he was not satisfied, though it might be a case of hardship. The action waa against M au de aa a Ss ent » and the question arose, did the agency extend after the bankruptcy ? Mr Joynt said that the agency was continued for the purpose of receiving money on behalf of the client.

His Honor said he was not satisfied with this, but he would t-ike an opportunity of looking into it. Ha would express no opinion on the matter.. . • Mr Joynt asked whether his Honor would express any opinion that Maude was able to deal with trust money. His Honor said ho would not do so unless he could see hia way to make the order aaked for. MISCELLANEOUS. Orders were made releasing the Official Assignee in the estates of Crompton and Co. and tea others. Mr Donnelly obtained the discharge of W. Owens, and Mr Thomas that of A. C. Truecotfc. . BE CHARLES WESLEY TUENEB. The Official Assignee applied that a transfer and delivery of 197 tons of coal by the bankrupt to the Canteibury Farmers’ Co-operative Association at Timaru be set aside as fraudulent and void, and that the value, .£176 6s 4d, with interest from the data of the delivery, be paid by the Association to the Assignee. Further, that the payment of the said sum was fraudulent and void as against the Assignee, and should be set aside and the amount paid by the Association to the Assignee. The grounds were that the transfer, delivery and payment had been made by the bankrupt in favour of the Association, when ho was unable to pay hia debts as they became due out of bia own moneys, in respect of an antecedent debt, and with the view of giving the Association a preference over the otKc-i? creditors, and

within three months before the date on which he was adjudged a bankrupt. Further grounds were stated to be contained in correspondence that had passed between the bankrupt and the Association, and in the affidavit of the Official Assignee. .. Mr White (of Timaru) appeared for the Association, and Mr Fisher for the Assignee. After evidence had been heard, it was arranged that the argument of counsel should be taken at 10.30 next morning. [PJB Press Association.] GISBORNE, Augusts. In the Supreme Court the jury was unable to agree in the horse-stealing charge against Robert G. Begley, and was looked up all night. Tbe case is being reheard with a new jury to-day.