LAW REPORTS.

Dominion, Volume 1, Issue 130, 25 February 1908, Page 4

LAW REPORTS.

SUPREME COURT. IN BANKRUPTCY, DISCHARGE REFUSED. His Honour Mr. Justice Chapman Held a sitting in Bankruptcy yesterday morning. Joseph Saba, an Assyrian hawker, applied for his discharge. His Honour, after looking over tho papers in connection with tho estate, .informed tho ciobtor that tho Official Assignee's report was very unsatisfactory. Tho Assignee stated, inter alia, that defendant had not explained certain matters, and that in his examination before tho Judge ho had not mado matters dny cloarer. Addressing tho debtor, His Honour inquired whether he was working at present. ■ ■ ■' ' Debtor: Owing to sickness, I have not dono anything for some timo. His Honour: Tliero is a suspicion that your son helped you to conccal moneys? 'Debtor: I havo been trading now for oighteen years, and been losing money all tho time. I havo several children to hoop. .His Honour: I can't givo you:an unconditional discharge to let you go on trading in tho samo way again. If you csln't do better than you havo dono in tho past, you ought not to bo in business. The Assignee will agrco'to'a discharge conditionally. upon yon submitting to a judgment for £69 10s,, iWiich would'.bo equal to ,ss. in tho £. .. . .% Mr. Elimpson, Deputy Official Assignee,' said thoro- was ground for the belief that debtor and his son had acted in collusion. Debtor was in tho habit of buying goods and selling them to his son. .Both'jvcnfcrouhd'.-witli vans., Tho son obtained goods in tbo riamo of his father, who. never took-steps to stop it, nor intimated to tho -merchants -that:,.lio ought not to be.supplied without his.consent.. It was.-,impossible to- get witnesses- becauso debtor" had conducted most of his business in and about Murchison, on tho Duller river,' aijd thoro was no money in tho estate wherewith to pay tho expenses.,' Ho liad evidently sold in that district a.largo''quantity.of good's which ho bad'not 'accounted for;' Debtor had kept no books, but- had taken, ..notes.. : in Assyrian, which certain of "his countrymon, who . wero interviewed,. would riot interpret satisfactorily. His unsecured debts totalled £217.

Debtor: Sickness has prevented mo from holding my own. .'

, His Honour^A; man who has been trading with tho money of. others , should., bo ablo co show what ho has done with it. Are you willing to comply with tho terms offered ? >\ Debtor: I can't,pay £69 10s: if I have not got it. If I' got' a : start 'again,'.and wero given timo, I would pay it. , ~ . i His Honour You do not seem willing to submit to the judgment, and tho application is therefore refused. , DISCHARGE GRANTED. ' Georgo Finn, accountant, applied. for his discharge., ' . Mr. Eair,-who appeared for debtor, stated that-his ■ client was willing'to submit to ajudgment for £242. Thoro had "been only one meoting of "creditors in connection' With ■ the estate,' and "tho ;creditors had .'..unanimously passed a resolutionirocohiriiendiug'that debtor be granted his"discharge.' '" Mr." Simpson informed -tlio, Court that debtor had promised to'pay £100 during 1908 and[£lso durins 1909. '.' ■ ' ;., His-Honour: Tho caso is one, at any rate,in which misconduct is not chargcd, and tho creditors aro willing to accept,debtor's offor, which seems'to'bo a fair one. ■ Tho order is granted conditionally'- upon'' judgment being ont.ored for £242. . , / , , ■ Tho Court then, adjourned until April 20, at 10.30 a.m. . • \

" CIYIL SITTINGS! : the kilbirnie tunnel, LIABILITY OF LANDOWNERS. '' . Tho Civil Sittings of tho Supreme Court were resumed yesterday mbrning, His Honour Mr. Justico Chapman taking his seat at the conclusion of tho sitting in' Bankruptcy.' Tho case set downfor;hearing was that, between the Hataitai Land Coihpany, Ltd. l . and John James Boyd, of Kilbivnio, 'builder.' a claim for £27 9s. 7d./ alleged to bo duo under an'agreement." Mr. Hadfield appeared-on behalf, of tho plaintiffs and Mr. D.- Findlay : for 'tho defendant. • :

Tho statement of claim set forth that, by, deed of agreement dated Juno 27, 1004, expressed to bo mado between ; tho plaintiff company nn.d several persons, after reciting that tho plaintiff company - had on request or tho Corporation -agreed'to contribute to tho cost, of tho Kilbirnio trannvav tunnel,"on obtaining from tho landowners of tile Kilbirnio ward a sufficient. contribution,it was stated that, in consideration of tho construction of tho.tunnel by tho Corporation, and of tho contribution to tlib.cost by ; the plaintiff com- • ,a^'cs severally agreed with the plamtilf company to pay tho sum' of . Is.,per foot frontage in instalments on all lands owned bv them and situated in the Kilbirnio ward. Tho plaintiff company had paid to tho Corporation the sum agreed on, viz., £10,000. Defendant, who was ono of tho parties, had .refused to pay tho amount duo bv him under the agreement,' viz., £27 95.-7d.,'which plaintifr company, now sought to recover. ; .The.statement of defence set forth that dofondant admitted haying . sighed - tho agreement, but.''alleged "that lio was'-indilced so to J.® ®y. tho.'represeiitations'made -by-rtlib' plaintilt comjlanr or its-agents that the projected tunnel would coiitaiira footpath. ■ . . linclfiolcl ,'i in opening tho, caso for tho plaintiff company,: said that-for a long timo beforo tho Kiloirnio tunnel *was constructed tho-plamtift company had before it tho question of, t-bo improvement of tho means of access to their land, and the matter was discussed with adjacent landowners. Eventually a special local Act enabling a tunnel to be contracted was brought, beforo Parliament. hi? ™? r y° u " cil 10n inquired from the plaintin company how niuch they would contribute ton ards the.-cost of tho.tunhel. .liiquirv was also mado, from tho plaintiff..company by a comniitteo of tho Kilbirnio residents. Subsequently, 'after an amount had been mentioned, the committee offered their services to tho plaintiff company to obtain signatures to an agreement, by .which other owners should refund to tho company part of their contribution. The agreements sighed by tho various owners woro to the samo effect. Tho ono which defendant signed was by a. fluke witnessed .by tlio secretary to tho plaintiff company. The caso. was: made to bear tho appearance of solicitation by the company, whereas company was only acting as a connecting link. Tho plaintiff companv had nothing to do with what the tunnel was to contain, but it was quito clear it was a tunnel which would carry a tram-line. Several of the parties who had not paid' tho amounts flue under tho agreement had. been 'successfully proceeded against in tho Lower Court. Udior cases, remained unsettled, and tho piesent caso was. in tlio nature of. a test action but not, absolutely so: Ho proceeded to call evidence.' • •

Alex. Shepherd,; agent, and secretary to; tlio. plaintiff. company, .deposed that defendant signed, the deed in his office. Cross-examined: The-Kilbirnic peonlo did agitato lor a tutilibl.for- nil kinds: of-'traffic, ilio conipany would havo liked -to- have soon a footpath inad.o in the-tunnel. If a footpath had been liiado tho vnluo of land would have been .increased;by;auotlier' : Cr per foot, sections which hail sold last week at: £8 10s. per loot would not ,bo worth hioro .than £4 per foot if there wero-no tunnel. : Witness did not- recollect telling defendant' that the tramway would contain a footpath. Mr. Findlay, on behalf, of-tlio defendant, moved for a.-.nonsuit, on the ground that plamtm had not proved tho performahco of the contract. Tho correspondence and tho agreement made it clear that ysomething more than a ■ tunnel for tramway purposes was to bo constructed, and it was equally clear that only a tunnel for tramway purposes was made, iho tunnel constructed was'not tho projected tunnel referred to in tlio deed. Counsel submitted that tho company, which was tlio prime mover-in. getting the tunnel put through, was Drcparcd. to tnl-w

thing, whereas the' other parties wero anxious to get something moro than a tunnel containing a tram-line. His Honour said it would bo more convenient if the ivlift'o' of tho case for tho defence was preprinted". The defendant, in tins courso of his evidence, stated that Shepherd told him before he signed the deed that '.he tunnel would contain a footpath, with hand-rail, and that it would bo lighted up like a street." Witness said: "We could hold a fair in it then," and Shepherd replied in tho' affirmative.-' He (witness) told Shepherd that if there was no footpath lie would not pay- anything at all. Tho absence of a footpath 'was a great inconvenienco; it- would have suited the residents better if a footpath had been provided and a half-penny charged as toll. The present tunnel was not large enough to givo room for.a foot-way.. ~ I- O. JV. Aitken, M.P., who was Mayor of the City of Wellington in -1904, ■ recollected addressing a meeting of ratepayers at Island Bay in connection with tho proposed i.uur.cl. Ho stated .thereat that provision was niado in the scheme for a footway with rail.. xSo cliango in the scheme was made during his. term of office. Witness understood that subsequently the provision for the footway was deleted in consequenco of objections raised by tho Governor-in-Coun-cil. ....

Wore any questions asked at tho meeting? \\itness: I have never held, a .meeting, at which questions .were not asked. (Laughter.-) James W. Kinneburgh, of Kilbirnio, de-posed-that in answer'to him Mr.-'Aitken stated that there would bo a footpath. Wm. John Brannigaii; of Kilbirnie, also gavo evidence. •>...'

After hearing legal, argument, His Honour intimated that ho would tako time to consider his judgment-.

CLAIM FOR COMMISSION. . His Honour Mr. Justice Button yesterdav wsnmea the hearing of :tho case of William \\ight Smith, laud, agent, v. Augustus bamuel J3iss, accountant, Martin Chapman, barristor-at-laiv, and Lo\rther Duiguan, of . anganui, accountant, a claim for commission oil the sale of- a- city property, llio bearing of the action was commenced °P- ' the case for the plaintiff was heard, and ■'the further hearing was..'adjourned vsino die, •:as. His - Honour-had -mP ro 011 circuit to Napier next day. The statement; 1 of claim . set forth that defendant Biss gave plaintiff authority to nua a purchaser, for' a' property containing J. perch and two-tenths of. a percli, situated in Morcer and Willis Streets, and occupied as a'jeweller's shop by Messrs. Rash and Gooder. Plaintiff, alleged that ...the., purchaser,' Mr. Frederick Cooper, seedsmanj who paid £9500 for, the property, .was induced to buy in consequence of',his introduction. Tho amount of the-claim ,was £237 : 10s. ..Tho statement of- defenco , set forth ■ that if-'the_ land were offered as alleged (which they denied), such offer was made without their consent, authority, or privity. Defendants denied that plaintiff at any time after March. 14, 1907, offered the',-property for sale to Cooper, and affirmed that lie had nevor informed them that he had done so, except on making a claim for commission aftor the -sale. ■ : :.

When tho case was called, Mr. H. D. Bell, K.C., stated'that he, appeared' as loader for tho defenco . in-place of his, late learned friend, Mr. Hugh Gv.lly. Associated with Mr. Bell was Miv : Tripp. -Oil behalf of plaintiff, Mr. Skerrett, K.C.'(with him Mr. Johnston) appeared.. Tho caso for tho defenco was proceeded with. ■■.... . . . .-■ : .

Augustus S. Biss, oile of the defendants, that ho .never.gave .plaintiff 1 authority to sell tho ; property; (but told:. him that if ho scoured a buyer at a price which was .satisfactory;.; to'_witribss"and his co-owners, ho paid commission.; < Hoi (witness) had, no authority from' his co : owners to sell the property, • and;'any offersVhad to' bo submitted to'them/ : Tho purchaser • (Mr; Frederick• : Cooper); after,: seeing.; -Mr.-;' M... Chapman, _K.C.,, one of tho owrieijs,. mado an offer to witness jwho coinmun'icSfe'd; < j\'ljtJi!/his coowners,' aiid'tho result' Was that tho pupert'y was; disposed of. ■ , ; , Frederick Cooper;- sfeedsman, 'gave evidence tliat. in 1906, pjaintiff:-meutidrted J herpioperty ,to him, -but : Eo"took,-'rib oft'ej, as ; ho -did not- waiit':,the'"property '---at that time. ~ "Witness; in 1907, went to sie Messrs. Turhbull ■; and- (, Company with • regard to another property, and .the; question cropped up about some; tronblo' with" the Corporation 'ovor a portion of. the; land; occupied as a road. HO remarked that the S'uho ouVstion .hadiarisen with regard to Rash andGooder's property, arid inquired as to whom the proporty belonged: ■ Turhbull'. and : Company's clerk said, ho 'thought'-Mr. Chapman n as' the owner. .Witness saw Mr. Obapmari, asked him " what ', had happened in regard to- tho title to tliat property,' and, ovcntually, after further conversation, asked, him' whether'he would sell. Mr. Chapman said th'at ho wculd seo Biss. n , " : 'U, .

Martin Ckapmanj.K.O.,:-also gave,evidence.. Counsel 'thon addressed the Court it lot gfch His Honour, intimated tliatho would probably deliver judgment afc'lo.3o .0 clock on Wednesday, ;iiiorning. . : ■ ' . '