LAW AND POLICE.

New Zealand Herald, Volume XXIX, Issue 8799, 12 February 1892, Page 3

LAW AND POLICE.

SUPREME COURT.IN Bankruptcy. Thursday. [Before His Honor Mr. Justice Conolly.] IN RE J. 11. FENTON.—MOTION TO RESCIND AN ORDER. In the matter of the bankruptcy of J. H. Fen ton, carrier, Tauranga, Mr. Cotter moved to rescind an order of the Court made on the Ist of February, 1892. The motion was made on behalf of Michael Nisbit, of Katikati, groom. The motion was as fol lows : —That an order made by the Court on the Ist February, 1892, whereby the Court did find that at the time of the bankruptcy of Fenton he did, by the consent and permission of Nisbet, who claims to be the rightful owner at the time in the possession, order, and disposition of the bankrupt, and of which he was the reputed owner, the Court did order that the said goods and chattels, etc., to be sold and disposed of by the Official Assignee, and applied for the benefit of the creditors under the Bankruptcy be rescinded, and that possession of the goods and chattels be given to the said Nisbet forthwith. Air. E. Hesketh and Mr. Cave appeared for the Official Assignee. i-> peaking in support of the motion, Mr. Cotterstated the outlines of the proceedings in the bankruptcy of Fenton under which the order was made, and contended that the order applied for must be granted, as the goods affected by it were at the time in the order and disposition of the bankrupt at the time of his bankruptcy by the consent of Nisbet, who claimed ownership. The question to be decided by the Court was what was the meaning of the words " Time of Bankruptcy," as used in section 83 of the Act of 1883. Section 53 did give a definition, and it was thatßankruptcy should be deemed to have relation back to the time of the commission of the first act of bankruptcy, within twelve months of the order of adjudication. In this case it was admitted that the first act of bankruptcy was on the Bth of November, when Fenton gave a bill of sale to Dunnefct. At this date Nisbet had no claim to the goods, as they were then under a bill of sale to Dunnett, duly executed, and registered. The order was, therefore, bad in stating that the goods were in the order and disposition of Fenton, with the consent of Nisbet, who claimed ownership. IS'isbet's claim only arose on | the 17th of November, when he bought the goods from Dunnett, the holder of the bill of sale. He quoted Vhecase of Lyon v. Weldon, decided in 1822, in which it was clearly laid down that the time of bankruptcy was the time at which the first act of bankruptcy was committed, and not simply from the time when the order of adjudication was made. Section 53 took that time back to the commission of the first act of bankruptcy, and the case of Thomas v. Owen, decided in 1884 by Mr. Justice Gillies followed Lyon and Weldon by giving the same interpretation to the words, " time of bankruptcy under the Chattels Security Act, 18S0." Mr. Hesketh contended that the time of bankruptcy extended to the commission of the first act of bankruptcy, but that it included the whole time until the order of adjudication was made, and that if any other construction was given to the section it would result in very serious anomalies in the administration of the Act. He quoted the case Forsyth v. Freeman to show that goods purchased by a person who knew of a previous act of bankruptcy, and yet allowed the property to remain in possession of a bankrupt, lost such property upon a claim of the Official Assignee to it on the subsequent bankruptcy of the debtor. Mr. Cotter replied. His Honor said ho had to repeat in this case what he had previously stated, that it was unfortunate that he should have been called on to make the order on the Ist of February without notice to the other party for the facts were not brought before him. He musti therefore follow the English practice. The application was made on the affidavit of the Official Assignee, who state/1 that at the time of the bankruptcy Fenton had the goods and chattels in his order and disposition by the consent of Nisbet, and it was on that statement that the order was made. JJow it was objected that this was not so, and that at the time of the bankruptcy Nisbet had nothing to do with the goods, and that Fenton did not then hold them by the consent of Nisbet, but that they were under bill of sale to Dunnett. It was not disputed that there was an existing bill of sale, and that after January Dunnett had nothing to do with the chattels. The whole question turned on the definition of when the time of bankruptcy commenced. He held that it commenced on the commission of the first act of bankruptcy. Section 81 used the words time of bankruptcy, but did not explain their meaning whether it was at the commission of the first act of bankruptcy or commenced from the adjudication. Apart from all the cases quoted he was of opinion that the language of the Act was so clear as to be unmistakable. Section 53 says that it shall commence from the first act of bankruptcy, and therefore section 81 must mean the time of the act of bankruptcy. Now, the petition on which the order of adjudication was made, alleged two acts of bankruptcy, one on the Bth of November, and another on the 18th. If the petition only alleged the bankruptcy of the 18th, then the question of the position of the Official Assignee as regards Nisbet might have arisen, but it was clear that on the 10th of November the bill of sale was in force, and he must assume it to be valid till the contrary was shown, but if it was impugned, it would have to be by other proceedings. He would therefore rule that the order of the Ist of February be rescinded. Mr. Cotter applied for costs. He said the question of costs was in His Honor's discretion, but lie thought this was a case in which costs should be allowed. A number of witnesses had been brought from Tauranga to make affidavits. This it is true was for the applicant's convenience, and he should not therefore ask for their travelling expenses, but as his friends on the other side asked that their evidence should bo taken viva voce, they were detained in Auckland for several days. His Honor said he should be inclined to grant reasonable costs. By arrangement between counsel the costs were fixed at £13 2s, including costs of witnesses and Court fees, and an order for this amount was made by His Honor. R.M. COURT.—Thursday. [Before Dr. Giles, R.M.] Undefended Cases.ln the following undefended cases judgment was given for the plaintiffs :—James A. Cooper v. Fred. Watty; claim 15s Gd, costs 8s; C. G. Hill and Co. v. William Sargesson, claim £9 3s Id, costs 25s ; Henry Coffey v. Henry Strafford, claim £7 9s 3d, costs 10s; A. A. Dawson v. G. Cook, claim £2 7s lid, costs 17s 6d ; Cook and Gray v. W. J. Trigg, claim £3 10s Bd, costs 16s ; James Rae v. Sir G. M. O'Rorke, claim £25, costs 35s ; J. A. Tole v. P. Lynch, claim £28 4s lOd, costs £3 13s; John Burns & Co. v. E. J. Guerin, claim £34 18s 9d, costs £4 13s ; Robert Henry lveenan v. Gertrude Goodman, claim 108, costs 6s ; J. Burns and Co. v. Robert Bull, claim £1 13s 3d, costs 8s ; Sargood Son and Ewen v. A. J. Mathews, claim £71 6s, costs £5 3s; A. Ball v. John j Fogden, claim £7 18s, costs 255; W. S. Jones v. Charles Dunster, claim £2 10s, costs 7s. Mark Marks v. William James Lloyd. Claim, £17 2s 7d. Mr. Burton appeared for the plaintiff, and Mr. Brassey for the defendant. Mr. Burton stated that defendant was one of three partners in the firm of Lloyd and Co., who had incurred at liability of over £55 to the plaintiff. The other two partners had paid their share of the debt, and the plaintiff now sued defendant, for the sum of £17 2s 7d, which was owing by him. After hearing the evidence on both sides, Dr. Giles said that although several points in the case were obscure, yet he would not attempt to clear them up. He considered there was nothing to show that defendant was jointly liable with the other two members of the firm. He gave judgment for a nonsuit with costs. POLICE COURT.—Thursday. [Before Messrs. F. G. Ewincton and John Gordon, J.P.'s.] Drunkenness.—Two first offenders were fined 58 and costs each, or in default 24 hours' imprisonment. John William Bible was sentenced to three months' imprisonment with hard labour for being a habitual drunkard. William Powley, for being drunk while in charge of a hackney carriage and two horses, was fined 10s and costs, or in default 48 hours' imprisonment.