Law Intelligence.

New Zealand Mail, Issue 366, 15 February 1879, Page 12

Law Intelligence.

BANKRUPTCY COURT. Tuesday, February 11. (Before his Honor the Chief Justice) IN RE J. J. TYE. This was an application for an order declaring completely executed a deed of assignment. Mr. Fitzherbert appeared for the debtor and the consenting creditors ; Mr. W. T. L. Travers for Mr. R. J. Duncan, as dissenting creditor. The matter was argued some days ago, and argument reported in the Times : His Honor now delivered judgment as follows : In this case application is made under the 142nd section of the Debtors’ and Creditors’ Act, 1876, for an order declaring a deed of composition completely executed. Mr. Travers appeared in opposition, and urged that the deed was invalid, because there was no assignment of the debtor’s estate in trust for the creditors. At the argument I stated my opinion that the Act did not require it, and that a deed with a covenant to pay a composition was a deed providing for the payment of a composition within the meaning of the 128th section of the Act. I adhere to that opinion, and think that no cessio bonomcm for the benefit of the creditors is required. But no affidavit having been filed proving that the reuuifements of the Act as to jurisdiction and gazetting of notices had been complied with, the case stood over for such evidence to be produced. It was unquestioned that the ~ debtor’s place of residence . and of business was in the proclaimed District of Hawke's Bay, but being temporarily resi-

dent in Wellington he made the deed, and filed it in the Supreme Court office, Wellington, there being an office of the Supreme Court at Napier, in the Hawkes Bay .district, j Moreover, it appeared by the affidavit when produced that the various notices had not been published in any newspaper published in the Hawkes Bay district, but only in newspapers published in the Wellington proclaimed district. It was contended by Mr Fitzherbert that the requirements of the Act had been complied with, and that if not, as no objection had been made on these grounds, the Court ought - not to notice them. Considering, the object of the provisions of the Act requiring that proceedings shall be taken and that notices shall be published in the locality where the debtor has resided, and that such proceedings are to bind non-as3enting and absent persons, and that the Court is to be satisfied that the deed is in conformity with the Act, .1 have arrived at the conclusion that the Court is bound to take notice of such grounds of objection ; and for the reason that absent and non-a-ssenting creditors are to be bound by a deed which is in compliance with the Act, I think that strict compliance with the Act is to be m-untamed by the Court. By. the 129th se.c----t ; such a deed may be filed in any Court.in which the debtor might file a declaration, of insolvency. By section 2 o such a declaration shall be filed in “a Court” for the “district” in which the debtor has carried on business or resided for the longest period during the preceding six months. By the interpretation clause (section 4) “ Court” means the Court having jurisdiction as by the Act provided, and “district” means a district. for the purposes of the Act, that is a proclaimed district (section 6), not the judicial district of the Supreme Court or District Court as the case may be. The Supreme Court has. jurisdiction over the whole colony (section 7). The Hawkes Bay proclaimed district. and the Wellington proclaimed district are within the district called for other purposes and under other Acts the judicial district of Wellington ; in each of the proclaimed districts there is an office of the Supreme Court, and the question is whether the Act does not require that a resident in Hawkes Bay proclaimed district shall file his declaration of insolvency, and therefore his deed of composition at the Napier office. There is no question that a single Judge of the Supreme Court to whom the Wellington judicial district has been assigned may, in reference to tbe case, exercise the powers of. the Court though sitting at Wellington, outside the proclaimed district of Hawkes Bay. In. the absence of any provisions in the Act indicating that the office of the Supreme Court in a proclaimed district is to be deemed the only office for that district, I should have so concluded. That such was the intention of the Legislature is, I think, maae still more apparent by sections 15 and 23. The interpretation of the terms ,£ gazette and “ gazetting” show that the Legislature intended that the proceedings should be taken, that is commenced, in the appropriate proclaimed district. If the opposite contention were admitted then the deed might be filed in the Dunedin office or Christchurch; for the Supreme Court has jurisdiction in bankruptcy over the whole colony. As to the gazetting the notices, they, by the Act, must be gazetted, and gazetting by the interpretation clause (section 4) means published in two. newspapers published in the “ district,” that is the “ proclaimed district” where the proceeding is pending I think the proceedings ought to. have been taken in. the Hawkes Bay District, and the notices published in that .district ; the proceedings in this case are, in fact, pending in the Wellington district, and if properly so then the gazetting would have been sufficient. For the reasons given I think that thg deed ought not to be declared completely executed. W hether the matters recited in the deed affect its validity, I have not thought it necessary to consider.; they were not relied upon, and were not, I think, sufficiently before me to enable me to deal with them. But it may be remarked that the covenant of Mr. Isaacs in the deed of composition to pay the composition is in consideration of the assignment to him of the debtor’s property, which property had been previously assigned to him in trust for the debtor s creditois; and it would appear extremely doubtful whether a meeting of creditors under the Act has power to avoid such previous assignment.. If .it has not such a power, then the consideration for the covenant failing, Mr. Isaacs would not be bound by his covenant, and the deed consequently could not be one for the benefit of the creditors of the debtor.

ORDERS OP DISCHARGE. James Hinshilwood. Mr. Seivwright for debtor. Order made for discharge. F. A. Suisted, bankrupt. Mr. Travers moved for an order of discharge. Order made. , ~ William Wylie. Bankrupt in person for discharge. Order made. Richard Maxted. Bankrupt for discharge. Mr. Ollivier mover. Order made. John Dixon Campbell. Application for discharge. Mr. Ollivier for debtor. Order made, subject to affidavit being filed that he resided six months in this district before filing. , Daniel Burn, for discharge. Mr. Ollivier for debtor. Order made. Charles Hickey, for discharge. Mr. Allan for debtor. * Order made. The Court then adjourned.

SUPREME COURT—IN BANCO. Wednesday, February 12. (Before Hi 3 Honor the Chief Justice and Mr. Justice Richmond.) SINCLAIR V. DxYNIELS. The Chief Justice delivered the following judgment. —I think the injunction must be dissolved for two reasons —that the plaintiff did not, in applying, so fully state his case as he should have done, and that in moving for an injunction against a mortgagee to restrain him in exercising his power of sale on the ground that he has already overpaid himself

by prior sales, this must be clearly estabtablished, for where there is a doubt the Courtwill not interfere with the mortgagee’s rights. The costs of this motion to await the result of the action. Mr. Justice Richmond : I agree with the Chief Justice. On the facts now before the Court it is a moot question whether the mortgagee has been satisfied. I think if the plaintiff had established his case he would, under the circumstances, have been entitled to an injunction, notwithstanding the principle established by the English authorities that a Court of Equity will not interfere with the legal rights of a mortgagee, and that the bill must be for redemption. SELLARS (APPELLANT) V. BLAKE (RESPONDENT.) The Chief Justice delivered judgment as follows : This was an appeal against tlie judgment of a Resident Magistrate’s Court, awarding damages against the master of a vessel, from which, when lying at the wharf in Wellington harbor, a rocket (a part of the stores of the vessel) was let off by the mate, and hit and injured a person on the wharf. It appears from the case that on the morning of New Year’s Day rockets and other fireworks were being let off from the vessel (it may be assumed as a token of rejoicing, and not for any purpose connected with the working of the vessel, such as signalling.) That the chief officer let off amongst other fireworks from this vessel a rocket which hit the plaintiff when on the wharf. That the rocket was part of the stores of the vessel. That the defendant was the master of the vessel, which was from England. That he was not on board at the time. That he had not given any express permission or authority for the firing ; but that he was cognisant that rockets had been discharged from his ship on previous New Yew Year s morning’at Wellington, and had not disapproved of the practice, and that on the evening in question he was at a house in W ellington looking at the fireworks. Mr. Allen, for the respondent (Blake), admitted that the letting off fireworks under such circumstances could not be considered within the scope of the employment of the chief officer as such, so as to render the owners or the master liable for his act ; but he contended that the facts stated in the case were sufficient to justify an inference that the defendant had in this case authorised the chief officer to let off the rocket on the occasion in question, and that if the facts were such’ as to justify such an inference, the appeal must be dismissed. I have arrived at the conclusion that the appeal must be dismissed for tbe reasons urged by Mr. Allen. It is true that in order to establish the liability of the defendant the Court below must have been satisfied that though the defendant gave no express order or authority to let off the fireworks, nevertheless his acts were such that such an order was to be implied. The vessel was in the custody and under the control of the defendant. The fireworks being part of tbe stores of the vessel, were also his property, and in his custody and under his control. Though not present on board at the time, he was an onlooker. It was not a single firework, but one, it may be assumed, in a continual course, occupying some time. The same practice had been followed on this vessel in previous years without objection by the defendant. The person who fired off the rocket was in his general employment ; and a similar display was made by other ships. From these facts I think the Magistrate might infer that act was being done under the defendant s authority. It was an act which he had power to forbid and prevent, and his order or concurrence may be presumed upon the principle contained in the maxims— Qui non prohibit quod prohibere potest , assentire videtur, 2 Inst., 20S; and Qui non obstat quod obstare potest, facere videtur, 2 Inst. 146, cited by Barke 8., in Morgan v. Thomas, 8 Exch., 30 ; and Qui protest et dxbet vetare jubet, Gilbert 35. The appeal is dismissed with costs. Mr. Bell appeared for the appellant and Mr. Gordon Allan for the respondent.'