R.M. Court.

Southland Times, Issue 12008, 31 March 1892, Page 3

R.M. Court.

have raised the point when he had appearec to the summons. — Sew Chew having enterec the witness-box, Mr Solomon explained thai that person could not speak a word o. English. — His Worship (to the witness) Don't you speak English?— The witness shook his head. — Mr Brodrick submitted that where the defendant appeared tc answer an action it was not necessary to have an affidavit as to service of summons. The Deputy-Official Assignee had h*d communications with Spw Chew, and had an account of his signed Wah Kee. He would ask to have the summons amended by inserting the words, "Sew Chew, trading as Wah Kee." — Sew Chew was then called and examined by Mr Brodrick through Lung Chung, interpreter. — The witness explained that the name Wah Kee, which was that of his shop, had been put to the account before the Court at the request of a clerk in the Official Assignee's office, whom he (witness) had asked to make it out. After further argument his Worship amended the summons as suggested by Mr Brodrick, Mr Solomon asking that his objection on the ground that the Court hart not power to do so should be noted.— With regard to the question of jurisdiction Mr Brodrick submitted —(I) That the Deputy-Official Assignee (Mr Rout) had a right to sue ; (2) that he had made a proper affidavit before a proper officer of the Court : and (3) that the Court had jurisdiction to hear the case. He went on to argue that when the words " The Assignee " were used in the Bankruptcy Act they meant the person having charge of the administration of a particular estate, and that it was intended that Deputy-Assignees should have the same powers over the management of the estates they administered as the OffieiaHAssignee. The Official- Deputy Assignee had full power to sue, and the money sued for did not vest in the Official Assignee till it was recovered. The Deputy-Assignee had sued over and over again, and it could not be doubted that the receiver of property had power to do so. — Mr Solomon, in replying said that he was not relying on the Bankruptcy Act, but the Resident Magistrate's Act. As to Mr Brodrick's argument with regard to the powers of the Deputy Assignee, counsel submitted that it was ridiculous to say that that official had power to sue when the property wai in possession of the Official Assignee, and he was the proper person to recover and the only person responsible. — His Worship said he was satisfied, as Mr Solomon said, that the Official Assignee was the plaintiff, and was the only person who could make an affidavit of jurisdiction. The case would therefore be struck out. — Mr Brodrick asked that this should be done without allowing costs. His clients would either appeal or take out a fresh summons. — After argument his Worship said the defence waff so technical that he would not allow the defendant anything, but the interpreter would be allowed LI Is, making, with solicitor's fee, L 3 3s, and court costs, 3a, a total of L 4 7s. Motto»r — Wbot in the world ks* brcime of the other half of that cmke I cut for «npp»r ? T,it»!e Diek — You gave it to mr, Non?en«e f You «sk?d ruoif yon could have a pipo» of c»k* ••■•rt * wiifi y*p, ' Yes'm, I meant the piece that wu leftover.'

_#. . Wednesday, 30th March. (Before C. E. Rawson, Esq., R.M ) UNDEFENDED CASES. Fleming and Gilkison v. Thos. Bain. — Judgment for L 6 2s ; costs, 13s. — S. A. Palmer v. F. Dixoa (Bluff), for Lll 15s. Mr Raymond for plaintiff. Order made for payment at the rate of L 2 a month ; with costs. CLAIM UNDER THE BANKRUPTCY ACT. Official Assignee in Bankruptcy of the property of Wong Chang, storekeeper, Round Hill, v. Wah Kee, storekeeper, Dunedin.— Thia was an action brought to recover LIOO paid by Wong Chang to the defendant as Follows, viz., Lsoon the 30th of November, 1891 ; L2O on the 21st of December, 1891 ; and L3O on the 14th of January, 1892, when the said Wong Chang waa unable to pay his debts as they became due from his own money, with a view to giving the said Wah Kee a preference over his other creditors, the said Wong Chang having been adjudged bankrupt within three months after the date of the said payments. — Mr TJrodrick appeared for the plaintiff and Mr Solomon for the defendant. — Mr Solomon said that he had two grouuds of defence to the action to raise preliminary to the hearing, and if the case were gone into he would further submit that the action complained of did not come within the fraudulent bankruptcy clauses of the Act. His preliminary objections were :— (1) That there waa no evidence that the summons had been served on the defendant ; and (2) that the Court had no jurisdiction because the affidavit required by the 34th section of the Resident Magistrate's Court to the effect that he had a good cause of action had not been made by the plaintiff. With regard to the first point, Mr Brodrick had been led into an error aa to the defendant's name through no fault of his own, but as a matter of fact there was no such person aa Wah Kee, which was simply the distinctive title of a shop in which business was carried on by certain individuals, just as an hotel might be called the Albion or the Prince of Wales. The real facts were that the persons who traded with Wong Chang were Sew Chew and another Chinaman lately deceased, so that Sew Chew ought to have been made the defendant. Counsel submitted that the error made the summons invalid. That difficulty could perhaps be overcome, but the second objection to the proceedings appeared to be fatal, namely, that the affidavit of jurisdiction had been Signed, not by the plaintiff, as required by the Resident Magistrate's Act, but by the Deputy-Official Assignee, Mr C Rout. Mr Brodrick had assumed, because the Official Assignee had given Mr Rout the power to exercise the duties of t an Assignee, that therefore he (Mr Rout) was the plaintiff in the action, but such was not the case. The Official Assignee was the plaintiff, and the person who" should have^ made the affidavit referred to. Mr Rout had been given power to exercise on behalf of the Official Assignee that person's duties in particular cases, but the only person who could sue for the sum claimed yraa the Official Assignee, in whom the money if recovered, would vest. Mr Brodrick said that as to the first point he WOttld call Sew Chew, and added that be WMrfttbtr Mtoniabed Mr Solomon should