DISTRICT COURT GREYMOUTH.

West Coast Times, Issue 2462, 21 August 1873, Page 2

DISTRICT COURT GREYMOUTH.

Monday, August 18. (Before his Honor Judge Harvey.) In Bankruptcy. re broadbent, ex parte parkinson. His Honor gave judgment in this case as follows: — " This is a question as to the admissibility of a proof of debt by Parkinson against the estate of the above-named bankrupt. A portion of the claim must be admitted, but the dispute has arisen as to two portions of the claim, namely, for rent and for certain articles of jewellery. As to the rent, that amount must be disallowed, as Parkinson has sworn that during the time when it was alleged to have accrued he was himself the tenant of the premises, and that bankrupt was his servant at £3 per week. With regard to the jewellery, it appears that at the latter end of the year 1872 Parkinson and Broadbent agreed together that Parkinson should supply to Broadbent the jewellery jn question, and that Broadbent slfould dispose of it by what has been called an art-union. Both parties are agreed on this point, that the goods were supplied by Parkinson to the bankrupt expressly for this purpose. The evidence on this point was most distinct, and leaves no room for doubt but that this was the agreement. The parties differ on another point, namely, Parkinson alleges that the supplying of the goods was a merely gratuitous act of irind-

ness on his part, ahd thafte w&s simply to get batik hia tiutlay, while the bihkrupt states "mat in ddtUtionParkinibb was to get one-half ljf thjj* prints. Tbi'iasC appears to me to be the mdjit reasonable tion of tp(f agreement bet we'eii them, and is borne out by certain entries iv bankrupt's stock book, showing payments to Parkinson and initialled by him as having been received, in which this ba^s b,as been acted upon. I am threefdre Satisfied that this was the agreement, an'c{ tb& the parties were co-partners in this transaction, Pafkiflsßb 'flhaiHg-tße-gooa'S anS "bankrupt paying tb'e €xp*ense¥3f Idv&tSfhtgf&c., and devoting his time to tbe"gef tiflg up of the scheme. Also it will be necessary to notice that after the goods we're delivered to bankrupt he gave Parkinson a bill of sale over them for the amount alleged to be due in a settlement Jof accounts between them. This bill of sale was agreed to be given at tbe time when the agreement was first entered into, although not executed until some time after. Upon the evidence I find the facts to be as follows:— lst. The agreement was to supply goods for an artunion, to be drawn by tickets out of a barrel. 2nd. That, in this transaction, the parties were partners. 3rd. That upon the making of the agreement there was also an agreement that tbe bill of sale should be, given, and which was afterwards actually {riven. As a partner Parkinson would not be entitled to prove for thi9 amount until 1 after payment out of Broadbent's estate tff^Os in the & to all his other creditors, But the question arises as to whether he should be admitted to prove at all on the ground of illegality. The prospectus as" published calls it Broadbent's grand annual distribution of prizes, en the principle of the art-union of London. There were to be 440 tickets at £1 each, and the goods were allotted into 81 prizes of the stated value of £440. The prizes were to" be" determined by drawing of tickets, in other words, by chance, and there woul^ be 359 blanks to 81 prizes. This is' inmjr opinion a lottery, and fs within the provisions of tbe 12 Geo. 2c, 28, which enacts {inter alia) that if any person shall expose fo ; 8"sle any jewels, &c, &c, or other goods, by any game, &c, depending upon, or to be determined by, any lot or drawing, whether it be out of a box or wheel, &c, or device or chance of any kin.tf, shall, on conviction, forfeit and loose the sum of £20d, a penalty afterwards increased to £500 by 42 Geo. 3, c 119, and by section 4 of said Act every such sale is declared to be void, and the goods forfeited to 1 any one 1 who shall sue for the same. And by 42 of Geo. 8, c. 119, all such games or lotteries are declared common nuisances, and against law— Vide BurVs " Justice ot the Peace." title Gaming and Lotteries, 853, 30th cd. The Acts above quoted are in force in New Zealand, by virtue of the " English Laws Act 1858:" In order to evade the law on these points, it is stated that this transaction is to be on the principle of the Art Union of London. By the 9th and 10 Vie, c. 38, intituled "An Act for legalising art-unions," it was made lawful to dispose of paintings, drawings, or other works of art by chance, provided the Association obtained a royal charter of incorporation, and submitted then: rules to Privy Council. This Act is not in force in New Zealand, and, even if it were, it would not apply to a transaction of this nature, for although jewellery may, in some sort, be said to belong to the category of works of art," yet the Act says " paintings, drawings, or other works of art," meaning other works of art of a similar nature, and clearly did not intend articles of common every day merchandise. Moreover, theprovito as to the charter has not been complied with. I am of opinion, therefore, that this transaction was altogether illegal from the beginning, and that the parties thereto have brought themselves within the penalties of the Acts above cited. In order to ascertain if Parkinson should be allowed to prove this claim it will be necessary to ascertain if he could have maintained an action against Broadbent to recover the value of the goods so delivered to hini for this illegal purpose, and I am of opinion that he could not. It is clearly laid down that whenever the contract which^a party seeks to enforce is for bidden by common or statute law, no Court will lend assistance to give it effect. Vide cases cited Ch. on Cont. QOB-9, and particularly Fisher v. Bridges, 23 L.J.R. (N.S.), ex, Chamber 276, and Geere v. Mare, 33 L J.R. (S.S.),Ex. 50. In Fisher v. Bridges, land was conveyed for the purpose of a lottery, but a portion ot the purchase money remaining unpaid the defendant entered into a covenant to pay, and, upon being sued for the amount, it was held that it could not be recovered on the ground of the original illegality of the contract. Owens v. Denton, 1 C M and R, 712, appears to be at variance with this case, but is not so in reality. The distinction is drawn broadly between the two cases. In Owens v. Denton, the settlement of accounts, which was held to be equivalent to payment, did not form any part of the original agreement. In Fisher v. Bridges, the covenant was held to be the creature of the agreement, springing directly from it. In this case Parkinson could not have maintained an action for recovery of the amount, either on the original contract, or on the covenant-in the bill of sale, and, in my opinion, the case of Fisher v. Bridges conclusively decides this case, and not being able to maintain |an action, he cannot be admitted to »prove in Bankrupcty — see also exparte Mather 3. Yes. 373. It was urged that, as all the goods were not wanted or used for the art-union he should be allqwed to prove for them,' but I am ef opinion that; this cannot b§ allowed. The contract was indivisible, and part of the consideration being bad the whole is bad. Parkinson's proof therefore as to tbe rent and the jewellery must be rejected, but he will be allowed to appropriate the moneys received byjhim from Broadbent in and towards the payment of this .rejected amount. I have given this" judgment at length, from a desire to show that these transactions are illegal, and against public policy, and are detrimental to the regular tradesman. iVo better proof of the wisdom of putting a stop to these gambling transactions need be given than is afforded by the history of this case, in which it has been proved that 182 persons have paid £1 each for tickets in this scheme, and they will not be able to recover back any portion."

Each party to pay their own costs. Mr Guinness made application for the costs incurred by Mr Parkinson in opposing bankrupt's discharge when his certificate was suspended for 12 months, but his Honor refused the application.