WAITARA.

Taranaki Herald, Volume XXXIX, Issue 8740, 28 March 1890, Page 2

WAITARA.

[FROM OUR OWNCORRKBPOMDRNT.I March 27. — Our School Committee held a special meeting on Saturday last, to take into consideration the strong terms of tho petition lately presented to them asking them to resign. The Committee have, in the interests of the school, done the best they could in the unpleasant position in which they have been placed, and, naturally enough, do not like to be called hard names foi their pains. It was said that some persons had signed the petition without understanding its contents. After conversation upon the matter, it was resolved, " That as a number of persons have exprossed regret at signing the petition charging the Committeo with abusing their position to ruin the lato schoolmaster, an opportunity be afforded them of expressing the same before the next meeting." The Wesleyans are trying to pay off some old debts in connection with their circuit work. To help in this laudable object a garden party was held, through the kindness of Mr Tatton, in his grounds on Wednesday last. It was unfortunate that it had been fixed for the same day as the Taranaki Agricultural Show, but there was a good number present, and I understand that £10 was realised. There were outdoor games of various sorts, and refreshments to invigorate the " inner man." Mra Tatton and family were untiring in their endeavours to make the visitors feel at home; and in tho evening»the Waitara Brass Band, under the baton of Mr Hughes, discoursed sweet music, which was much appreciated by everybody presont. The band deserves much praiso for its willingness to help every good work whenever it is asked to assist.

Mr E. E. Gilbert will pay his usual quarterly visit to New Plymouth next week, remaining about throe weeks in the district. Before the Registrar of the Supreme Court in Chambers on Thursday in ro the trust of Mrs Powell's settlement the petitions of Mrs Powell and Mr E. T. Wright for an order appointing new triif-tees, and to vest trust property in them were heard. MrSamuel appeared as counsel for petitioners. Thoßegistrarafter considering the petition andseveral affidavits filed made the order as payed, costs to be paid out of the estate. The new trustees appointed aro Messrs Charles Tunbridge and Joseph West. As a specific for rheumatism and neuralgia, Ronshaw's Monarch of Pain, by its wonderful rosolvent properties, disperses and emdicatos tho morbid conditions from which such diseases spring, scientifically combating the cause, and therefore must not be confounded with any of the so-called remedies which only tinker with the effect, without doing any material or permanent good. Many womon in making ncones uso creum of tartar and soda, which makes thorn yollow and of a peculiar flavour. If you want to make delirious whito ncones use only Ronshaw'o perfected baking powder, which is prepared with tho purest ingredients and in scientific proportions, wlioroby tlw best possible resets aro

DISTRICT COURT.— In Bankruptcy Thursday, March 27. — Before His Honor Mr District Judge Kettle. His Honor gave judgment in the case D.O.A. in the estate of 11. Capel v. W. 11. Webbe, in which the plaintiff applied for an order to sell a piano hold by bankrupt's wife from tho defendant on terms. Mr Samuel for plaintiff, Mr Cotter (of Auckland) for dofondant. His Honor said : This is an application by tho Official Assignee in Bankruptcy of the property of Henry Capol, for an order under section 81 of "The Bankruptcy Act, , 1883," directing that a piano which was in the houso occupied by the bankrupt and his wife and family, at the date after the bankruptcy, be sold for the benefit of the creditors under the bankruptcy. The piano in question was taken possession of by the Assignee and has sinco been held by him pending the result of the present application. The facts as I find them are shortly as follows : Mr Capel was adjudicated bankrupt on the 4th of December last. Shortly prior to 25th February, 1887, Mr Capel had arranged with Mr W. 11. Webbe, of Auckland, importer of musical instruments, for the purchase of a piano from the latter, on what is commonly known as the hire system. After the parties had come to terms, Mr Capel wrote to Mr Webbe requesting him to make out the agreement in the name of his wife, and on the 26th February, 1887, Mr Webbe wrote Mr Capel:—" In accordance with your instructions I have made out the agreement in the name of your wife." The agreement was then made out, and signed by Mr Wobbe and Mrs Capel, two copies of the same. [His Honor then road tho agreement, which was a printed form, with the blanks filled in.] Mr Webbe, in giving his evidence, says that after writing the letter of 26th F»bruary ho considered that the pale was to Mra Capel alone, and that her husband was in no way liable to him for the performance of the agreement. He also says on cross-examination that before completing the transaction he inquired about Mr Capel's position, and that if Mrs Capol had not signed the agreement he would not have sent the piano forward, lie further stales that in his communications with Mrs Capel after the agrecmeut was signed, and the piano delivered to Mrs Capel, ho looked upon Mr Capel as the agent for his (Mr Capel's) wife. Upon this state of facts, I think it is clear that there was a substitution and novation of the agreement (Addison on contracts 1226), which had been made between Webbo and Mr Capel, and that whatever the secret arrangement or understanding between Mr Capel and his wife may have been, Mr Webbe was in no way bound or affected by it, and that the sale of the piano, so far as Mr Webbe is concerned, was to Mrs Capel alone. The bankrupt waa at the time of his bankruptcy carrying on the business of a draper, and resided with his wife and family at his business premises in Devon-street, New Plymouth. The piano in question was kept in the pri\ ate apartments, and not in the shop where the bankrupt carried on his business. At the date of the bankruptcy various payments had been made under the agreement, and on payment of a sum of about £4 Mrs Capel would have been and may still be entitled to purchase tho piano under clause 12 of the agreement before referred to. The Assignee served both Mr Webbe and Mrs Capel with notice of the present application. The former appeared by counsel on the argument, but Mrs Capel did not appear either in perbon or by counsel to oppose the application. In dealing with the case it is necessary to consider first the Assignee's rights as regards Mr Webbe, and, secondly, Mrs Capel's position To entitle him to an order under section 81 of "The Bankruptcy Act, 1883," tho Assignee must, establish three things, viz.: — (1) The possession of the piano by the bankrupt; (2) that the bankrupt was " the reputed owner" , of tlio instrument; (3) that Mr Webbe (the true owner) consented to such possession. Now, since the passing of " Tho Married Woman's Act, 1884," a married woman may acquire, hold, and dispose of real or personal property of any kind whatsoever as though she were txfemmc sole. Husband and wife have since the passing of that Act ceased to bo one person in contemplation of law, for the purposes of property. — Mr Lush, in his work on the law of husband and wife, published in 1884, says at page 303, et scq: — " The pos session of both parties, i.e., husband and wife, therefore, is no longer in law the possession of the husband, and goods must be in tho ' solo possession ' of the banki.ipt in order that they should be in his possession "as reputed owner" within this rule. [See ex parte Dorman, L.R. 8, Ch. } 51 ; ex parte Fletcher, 8, L.R., Ch. Div., 218.] So that property which is subject to the rule of " reputed ownership " would not necessarily now be in the possession of the husband merely because it was upon the premises which he and his wife jointly occupied. Moreover, there would not, it is conceived, he sufficient notoriety of the fact that furniture, &c, in a house occupied by both husband and wife may belong to tho wife to prevent tho doctrine of " reputed ownership " applying, merely because the chattels remained in their , common residence. It would only bo if the wife were to give the husband the sole control over, and management of the | chattels in such a way as to create the appearance of being the true ownir, that his trustee in bankruptcy would be entitled to claim them." With this statement of the ! law I entirely concur. The presumption of ownership arising from possession may be rebutted in various ways; for instauce, the effect of a notorious trade custom will be to to exclude the presumption of reputed ownership (see in re Blanchard, L.R., 8, Ch. Div., 601, ex parte Emerson 41, L.J., Bank 20, and similar cases), and apart from the eii'ect which " The Married Women's Property Act, 1884," has upon the question, I think that in this case the presumption of ownership has been rebutted by the proof of a woll-known and recognised custom of letting out pianos on the " hire system." The evidence as to this custom was clear and uncontradicted, and j proves that such custom was universally known and pra<tised, and further, I think it is one which the ordinary creditors of the bankrupt may be reasonably presumed to have known. It was contended by the learned counsel for the Official Assignee that the agreement between Webbe and Mrs Capel was in effect a " salo," and not a " hiring." The agreement is very similar in form to that in James Owon (2 N.Z. Jur., Rep, N.S., S.C., 111), and I may adopt the language used by tho late Mr Justice Gillies in giving judgment in that case. Ho says: " There is nothing to cause me to think that tho intention of the parlios to the agroemont was other than what is expressed in the agreement itself, which clearly is an agreement for hiring the piano in question with an agreement for sale upon the performance of certain conditions." In the agreement in this caso, as in that of James Owen, it is expressly stipulated (clause 2) that the right of property and ownership shall remain in the bailor, (Mr Webbe). For tho foregoing reasons, I am of opinion that tho Official Assignee has not established that tho piano in question was in the possession, order, or disposition of the bankrupt with the consent of Mr Webbo. tho truo owner thereof, and that ac regards Mr Webbe at any rate, tho present application urn.st fuil, As regards Mrs Capol tho case Js somewhat diiforent. Sho has not appeared to opposo the motion, und I think I ought to treat her non-appuiimncc iv-f an indication that fiho la willing' that judgment

Wobbe has nor, as I understand, determined the affrcemeut under clause 10, and even if he had I am inclined to think that the Supreme Court might possil ly grant relief under sec 25 of " The Supreme Court Act, 1832." I would advise the Assiguec to tender to Mr Webbo the amount which will entitle Mrs Capel to purchase the instrument; and in the event of Mr Webbe refusing to accept it, aud claiming the piano, the Assignee can then if so advised apply to the Supreme Court under the section before referred to. In the event of Mr Webbs accepting the amount, and I think he should do so, the piano can be sold and the proceeds applied for the benefit of the creditors under the lankruptcy. If this course is followed complete justice will bo done to all parties. As to costs of this motion, I think Mr Webbe is entitled to his costs, which I fix at £5 ss.