THE COURTS. SUPREME COURT.

New Zealand Mail, Issue 907, 19 July 1889, Page 14

THE COURTS. SUPREME COURT.

IN BANCO. 'Wednesday, July 17. (Before His Honor the Chief Justice.) NATHAN V. CLARKSON. Special case. The following facts were admitted for the purposes of the case only :—Clark was carrying on business in Wellington in the name of W. Clark and Co. ostensibly, but really as agent foi the defendants. The plaintiffs sold goods to Clark and received from him liis promissory note for the price, without being aware of Clark’s agency for the defendants. • Clark went bankrupt, and the plaintiffs, although they had then become aware of the agency, proved against Clark’s estate and received a dividend. They now sued the defendants for the balance of the price of the goods on the promissory note, The question for the decision of the Court was whether the plaintiffs must be treated as having conclusively elected to treat the agent as liable, and not the undisclosed principal. Mr Gully, for thr plaintiffs, contended that the cases in \vhich suing the agent had been held to he a conclusive election were cases of suing to judgment, and that the principle Avas that Ayhere there has been a judgment the original contract is gone and replaced by a contract of record to which the original principal is no party, and that proof in bankruptcy was not equivalent to judgment, and cited Curtis y. Williamson, L.R., iO Q.B. 57 ; Priestley v. Fernie, 34 L.J., Ex. 172 ; Kendall v. Hamilton,* L.R. 4 App. Cas. 5Q4 ; Morgan v. Couchman, 23 L.J.C.P. 36; Edmunds v. Bushel! apd Jones, L.R., 1 Q.B. 97 ; Calder v. Dobell, L.R., 6 C.P., 486. Mr Jellicoe, for the de fendants, contended . that the ratio decidendi of Curtis v. Williamson was that there the proof against the estate of the agent was made without any intention of discharging the principal ; that proof in-bankruptcy and acceptancy of a dividend Avas equivalent to judgment. Quain J., in Curtis v. Williamson, supra ; Bankruptcy Act, 1883, sec. 105 ; Priestley v. Fernie, supra; that although there coulcl he discontinuance before judgment, there could be no withdrawal of a proof after it had been acted on, and that in Edmunds v. Bushell, supia, the only point decided was that there there was reasonable evidence of the liability of the principal firm. He also contended that ho one not actually a party to a bill could be liable upon it. Dicey’s Parties to an Action, 251 ; Byles on Bills, 44 ; Ledbitter v. Farrell, 5 M. &S. 345 ; Bult v.. Morel!, 12 A. & E., 745 ; and that the defendants could not be liable as ptincipals of Clark and Co on a bill signed W. * Clark. Kirk v. Blurton, 9, M. and W. : Odell v. Cormack Bros., 19, Q.8.D., 223. Kendal v. Hamilton was a partnership Morgan v. Couchman Avas no authority on either point. Mr Gully, in" reply/ corntended that the cases cited from Dicey and Byles were not relevant to the question of election, though they might afterward he cited on a non-suit point j that

“election” in bankruptcy had a different sense from “election ” in the law of principal and agent. His Honor reserved liis decision. HAY V. THOMSON AND ANOTHER. In this case the question Avas raised whether the defendants, the Inspector of Police in Wellington and a constable, could justify the arrest of the plaintiff, his prosecution in the Resident Magistrate’s Court, and the detention of his goods, on the strength of a telegram from the Inspector of Police in Invercargill stating that a warrant for his arrest, issued by the local Court of Bankruptcy in Invercargill, was actually in the hands of the police in Invercargill. Mr J ellicoe, for the plaintiff, contended that the warrant of a local Court of Bankruptcy could not justify an arrest out of the local limits of its jurisdiction ; that section 93 of the Bankruptcy Act, 1883, required a warrant ; and that that being so, nothing short of actual possession of the warrant by the person arresting could justify the arrest. Browditch v. Balchin, 5 Ex., 381 ; Galliard v. L-axton, 31 L.J.M.C. ; Regina v.. Chapman, 12 Cox’s C. C., 4 ; Codd v. Cave, 1 Ex. D. See also Reg. v. Marsden, L.R. J.C.C.R., 131 ; Rex v. Patience, 7 C. and P., 725 ; Rex v. Waller, C. and P., 245. The officer executing the warrant Avas clearly not authorised by it to prosecute the plaintiff. The Bankruptcy Act, 1883, gives power to seize goods by Avarrant, and that Act being a penal statute creating a new jurisdiction, must be construed strictly, and there must be actual possession of the Avarrant. It is not suggested there was suspicion of a felony under section 164. The Police Offences Act, 1884, contains nothing to justify this arrest. Mr Bell, for the defendants, contended the cases cited did not apply to an arrest under the Bankruptcy Act, 1883, the policy of Avhich Avas to give power to ai’rest a flying debtor. The 351ectric Lines Act might in some cases be called in aid., but in others there might not be persons appointed at each end under that Act. The operative part of section 93 of the Bankruptcy Act did not require a Avarrant to seize goods. The reason of the cases on the liberty of the subject did not apply to seizure of goods. There had been a direction by the Court brought to the notice of the defendants, which they Avere bound to obey. It avhs absurd to say that a bankrupt’s bag containing the proceeds of his property Avith which he Avas absconding could not be taken from him Avitliout actual possession of a warrant. Mr Jellicoe, having replied, his Honor reserved his decision. CRIMINAL SITTINGS. (PER PRESS ASSOCIATION.) Thames, July 15, The Supreme Court was crowded to-day, wheu the charges of embezzlement against F. C. Dean* late Town Clerk, were called on, before Mr B. W. Northeroft. R. M. Accused was formally called, but did not appear. Mr Hudson Williams, Crown Pro secutor, said he was well aware that Dean would not appear to-day, as from information received on .Saturday, he knew that accused had left the district, under cover of darkness, last Thursday night, in a fishing boat, and had made his escape out of the gulf. This was the way in which lie appeared to have deserted the borough, had been such a benefit to him for so long.* His escape, however, was perhaps a matter of congiatulation to the count)y at large and the Thames community in particular, although the opportunity had thus been lost of publicly showing the burgesses to what a large extent they hgd been defrauded. The late Town Clerk had proved himself to he a consummate scoundrel, arid it was to be regretted that the burgesses could not be shown how sadly their affairs had been neglected by those who should have l&oked after them. As the result of the audit so far made by Mr Mclntyre, it had been disclosed that the money of the ratepayers considerably exceeding £IQQO had been fraudulently misappropriated by Dean, and there was bo doubt whatever 'but that if further investigations were made it would be found that these defalcations would extend over several years past. The means resorted to by Dean had been of every conceivable description of deceit, and the forgeries had simply been artistic. Not long ago the public had been surprised by the revelations in Pigott’s ease, but a greater than Pigott had existed amongst them at the Thames. The initials of councillors on the Finance Committee’s report and entries in the minute-book had been very cleverly forged, and many other means of deceit had been resorted to by their late Town Clerk. It had also been discovered that he had made an improper use of the stamps of houses of business heie, and under the whole of these "circumstances it was not to be wondered at that ho was not to be found. At all events, the burgessea "of the Thames might be congratulated that this “old man of the sea/’ who had been such a burden on their shoulders for so long, had now been happily got rid of. He would ask his Worship, under Sectibn 13S of the Justices of the Peace Act, to endorse on the recognisances that Dean had made default, and asked that the bonds should be estreated. His Worship agreed to do this, and issued a fresh warrant. This concluded the proceedings. The police have reason to believe that Dean escaped to Norfolk Island by the schooner Christina.