SUPREME COURT.

Lyttelton Times, Volume XCVI, Issue 11049, 29 August 1896, Page 3

SUPREME COURT.

IN CHAMBERS. Friday, August’ 28. (Before his Honor Hr Justice Denniston.) RE JOHN MARSHALL DUKE, 1 DECEASED. Mr W. B. Cowlishaw obtained an order, re-appointhig the two surviving guardians herein. BE CHATTELS TRANSFER ACT, AND RE INSTRUMENT 1414, Mr W. B. Cowlishaw obtained an order extending the time for filing renewal heroin. PROBATES. His Honor granted probate of the wills of Walter Ernest Forbes, deceased (Mr W. B. Cowlishaw) and William Hinds, deceased (Mr Scott). RE ARCHIBALD CAMPBELL, DECEASED. Mr Ritchie (for Mr Izard) obtained an order confirming the Registrar's report as to commission. RE MARY QUICK, DECEASED, Mr Ritchie (for, Mr Izard) obtained an order confirming the Registrar’s report. ELL V. HARPER. Mr Caygill appeared in support of a motion for leave for the plaintiff to proceed without finding - security for costs. Mr Stringer appeared for the defendant to oppose. Mr Caygill said that it was practically an appeal against the decision of the Registrar. He- submitted that the matter did not come within the G. W. Ell Empowering Act, nor Section 152 of the Bankruptcy Act, that referring to giving security when commencing legal proceedings, He submitted that the present was not a legal proceeding in the sense of being am. action or suit, but merely a step in the proceedings. Though the names of parties might have been changed, they were proceeding under the old right of action. He cited authorities to show that the term “ proceeding ” did not apply-to a step in an action, and that the language of a.section of the English Act somewhat similar to that, of the. colonial Act, had been decided not to bo applicable in steps in a proceeding. i His Honor asked if Mr Cay gill’s contention was that a party, under this Act, could continue any proceedings already instituted without finding security ?

Mr Caygill replied that it was. His Honor asked if this was not opposed to the spirit of the Act ? Mr Caygill said he thought not., The Legislature had evidently not intended the Act to apply to actions pending, and had used the word “commence” instead of “continue or commence.” Ho cited further authorities ■ in support of his contentions. He further submitted that the plaintiff was not liable to find security for costs, because the costs in question were not really the costs of the defendant, hut those of lianmor’s executors, outside parties, who, if they wished to come in, should he joined as third parties. The plaintiff had no wish to join them. If he succeeded, he could get no dosts against them.

His Honor said that at present he knew nothing of this except that the Official Assignee in Harper’s estate was defendant, and that the present defendant was applying for costs.

Mr Stringer said that he was appearing for the Official Assignee fn the estate of Leonard Harper. Mr Caygill said that the plaintiff w r ould not be able to get costs, under present circumstances, ) against the Official Assignee. His Honor said that the Official Assignee could he made liable for costs.

Mr Caygill said that it was,unfair that these third parties should use the Official Assignee to the detriment of the plaintiff. Under the bankruptcy rules the Official Assignee could not be made liable for costs, having no assets, without a special order of the Court.

His Honor said that this did not appear a case in which there were third parties ; the parties were really the same, and the actions ought to have been'consolidated.’ If the defendant was, defending the case in the interests of somebody else, he was quite entitled to : do so. Mr Stringer said there were some assets in Leonard Harper’s estate, and the defendant was willing to give indemnity for costs. His Honor said that he need not trouble Mr Stringer on the second point. Mr Stringer said that to admit the first point of the plaintiff’s contention would defeat the whole purpose of the Act. He submitted that the result of it would be that a bankrupt might issue a writ in a problematical action, immediately before he became bankrupt; the Official Assignee, as here, might refuse to go on with the action, but the bankrupt himself might carry it on and leave the defendant without, any security for his costs. He submitted that the word “ proceedings ” applied to interlocutory as well as to original proceedings. This very point had been raised before his Honor, and decided in connection with the case brought by Mr Ell against Hanmer’s executors. The same arguments now advanced by Mr Caygill had been used by Mr Vogel, though no authorities had been quoted, and his Honor had held that security must be found for costs.

Mr .Caygill submitted that the decision mentioned by Mr Stringer was not in this action, as far as technical estoppel was concerned. He considered that the authorities he had quoted applied in this case.

His Honor said that he did not entertain any doubt on the matter. Under Section 152 of the Bankruptcy Act, 1892, Mr Ell had his title. The section of the Act must be interpreted by itself, and the meaning of any particular part must- be construed by the section as a whole. What, in any particular case was to betreated as a legal proceeding, must depend upon particular circumstances. The question ‘was, whether the pluintiff, in this instance', was taking a legal proceeding. They must look at the object of the section to get its meaning. The Court, under special circumstances, appointed a man, who might be an undischarged bank-, rupt, and who must; necessarily be penniless, and gave him power to collect possible assets, but in order that he might not have a roving commission to commence legal proceedings against any persons it laid down that if he did so ho must, find security for costs. Under these circumstances it would be contrary to the spirit of the Act to say that it did not apply to proceedings in an existing suit. The suit was now in the name of a new party. As there was practically a new plaintiff, a statutory plaintiff, in this case, it seemed to him (his Honor) that any proceedings taken by him must

bo the commencement of legal proceedings, and that the plaintiff must find security for the costs. It was the provision of the Legislature, not the act of the Court, to insist on this security. Ho (his Honor) had already decided the point in an earlier action between the parties. The second point did not appear to him to be arguable. If Hanmer’s trustees chose to oppose through the Official Assignee, they were at liberty to do so, as they had the right to do ho. The two actions ought to have been consolidated, and had been practically consolidated. As to the suggestion that the plaintiff saw the risk of not getting his costs, there was no doubt that the Official Assignee could bo made liable for costs, and, indeed, the other side offered an indemnity for costs. The application would be refused. Mr Stringer applied for costs. His Honor allowed T2 2s costs.