Supreme Court Malborough.

Marlborough Express, Volume XIII, Issue 1010, 23 March 1878, Page 7

Supreme Court Malborough.

IN BANKRUPTCY. Before S. L. Muller, Esq., Registrar, in the absence of tne Judge. Mondat, March 18th. JBe C. J. Owen, exparte W. B. DrvE. Mr Conolly appeared for W.E. Dive, of the late firm of Dive and Co., Havelock, the petitioning creditor, and Mr Rogers appeared for C. J. Owen, the debtor, also formerly of the late firm of Dive and Co. The petition, which was filed before S. L. Mailer, Esq., Registrar, on March 4th, was read as follows : — " The petition of William Evans Dive of Havelock, in the Provincial District of Marlborough, Timber Merchant, sheweth — That your petitioner, together with the said Charles John Owen, and with one William Pickering, the youflger, for some time past, and up to the 7th day of January, 1878, carried on business in co-partnership as general storekeepers at Havelock aforesaid, under the style or firm of Dive and Company. That the said co-par tnerBhip was on the said 7th of January, dissolved by mutual consent ; that upon the dissolution of the said co-partdership it was mutually agreed between the said co-partners that all accounts due to the said firm should ne . paid to the petitioner ; that at the time of the dissolution of the said co-partnership the said Charles John Owen was indebted to the said firm and is still indebted in the sum of £50 and upwards, that is to say, as nearly as can be ascertained in the sum of £954 19s 4d, being for cash advanced to the said Charles John Owen by the said firm, to his order, and for goods sold and delivered to the said Charles John. Owen by the said firm, and for the share of the said Charles John Owen in the amount written off accounts due to the said firm as and for bad debts, and for sums improperly credited to the said Charles John Owen in the books of the said firm, by entries made therein by the said Charles John Owen, in the deficiency in the account of the said firm with the Bank of New Zealand, tull particulars of which said sum of £954 19s 4d have been delivered by the petitioner to the said Charles John Owen; that the said Charles John Owen has within three months before the filing of this petition, committed an act of bankruptcy by making a fraudulent conveyance, gift, or transfer of certain lands and hereditaments of him the said Charles John Owen, situated in the township of Havelock aforesaid, with intent to defeat or delay his creditors, such conveyance, gift, or transfer being a conveyance of bis said lands and hereditaments unto his wife or to trustees for her use, and not being made in favor of a purchaser in good faith and for valuable consideration, nor before and in consideration of marriage, nor a settlement made on or for the wife and children of the said Charles John Owen, of property that has accrued to th^. said Charles John Owen after marriage in righi of bis wife. Wherefore your petitioner prays that the said Charles John Owen may be adjudged a Bankrupt." . Mr Rogers contended that the petition did not show or allege a debt to be due to the petitioning t creditor at the time of committal of the alleged 'act of bankruptcy; that the petition did not show a debt due by Owen to Dive. Another paragraph of the petition alleged that the debt was and still is due to the firm, the summons also stated the same. No assignment of the debt from the firm to Dive was alleged, the petition merely stated that it had been agreed on the dissolution that accounts should be paid to Dive. Presuming the debt to be due to Dive, then it could, only be an assignment of the debt due to the firm, and consequently would be an equitable debt, which was not sufficient to support the petition. That one partner could not petition against another for transactions arising out of the partnership transactions, except on an account stated and agreed to, and the petition not only did not show this, but even alleged that the amount of Owen's debt was then unascertained. ~ The case was argued at considerable length, Mr Rogers quoting from Griffiths and Holmes on the Law of Bankruptcy. Mr Conolly considered that the quotations applied to existing partnerships and not to dissolved partnerships. On the 7th Jan. the dissolution took place, when it was mutually agreed that all accounts due to the firm of Dive and Co. should be paid to Dive ; it was Owen's act as well as that of the other

partners, that accounts should be paid to Dive as the representative of the firm. There could surely be no necessity for embodying particulars in the petition, when they were given in the summons, which had been delivered to Owen. The Court was asked to assume that the delttor had committed the act of bankruptcy before the debt was contracted, when the burden of the sworn testimony was quite the other way. No doubt his friend was doing the best he oould for his client;, and he could not blame him for trying to bowl them over by a technicality. He would admit that the petition might have been worded better, and more particulars: might have been given, but would submit that all had been done that was required. The Registrar said he must come to the conelusion that tie petition did not disclose sufficient reason* for adjudging the debtor a bankrupt. ' ~ On the question of costs being raised the Registrat said he did not see that it was a case that would allow of full coats : he considered that L2 2s was all that was necessary to award. This concluded the business.