LAW REPORTS.

Dominion, Volume 4, Issue 1179, 14 July 1911, Page 3

LAW REPORTS.

SUPREME COURT. A BANKRUPTCY ANNULLED. AD USE OF THE ACT. The Chief. Justice (Sir Robert Stout) delivered judgment yesterday in a case which arose out of the bankruptcy of liobeit James Aekins of Wellington, railway clerk. .Margaret AeX-ius bankrupt's wife, had to annul the bankruptcy upon fhti ground that the action of the bankrupt, in Ming a debtor's petition was au a huso of the process of the Court, and upon other grounds-. His Honour, in his judgment, said: "This is a novel application. In fact, so far as 1 know a similar application has never before been made to the .Supreme Court of New Zealand. The application is made by the wife of the debtor to annul the order of adjudication of the debtor. It appears that the debtor and his wife separated, and by a deed he agreed to pay her <£2 10s. a week, she to maintain herself and his children. After the agreement was made his salary was not large, ami she agreed to take only oE2 a week. His salary now has increased so that according to his own admission he is in receipt of M $s. 4d. a week for salary. He now refuses to pay £2 10s. a week, and has not paid that sum for somo months. He says that this is too large an.amount to pay because some of Ihc children have- grown up, but, according to the wife's evidence, sho has had to maintain herself and the family by sewing, and at one. time by keeping boarders, but her health does not permit her to keep, boarders now. It is practically not denied that the whole object of his bankruptcy is to get the- amount in his agreement for' tho maintenance of his wife reduced. In my opinion, it is only necessary to state this to show that his conduct is an abuse of the Bankruptcy Act, and the only question is whether there is power in this Court to annul the bankruptcy proceedings initiated by himself. Reliance is placed by the applicant for the order on Section 130 of The Bankruptcy Act, 1908. This section is similar to Section 135 of the English Bankruptcy Act 6f ISS3, and many applications have been made under '!>."

His Honour then cited c. 'les, all of which, he said, recognised tha.v there was power- to set aside a bankruptcy if the bankruptcy was an abuse of the process of the Court. "In my opinion," ho proceeded, "there could not be a clearer abuse of the Court than in this case ; I may , add that tho debtor has not'raid any maintenance money for two montW, and ho has been in receipt of, according to his own admission, ,£G Bs. Id. a week, and yet. according to his account-of appets in hand, he has only ,E3. Ha has, therelore, deliberately wasted his money, or else he has put it somewhere in safe keeping. The bankruptcy must be annulled, with costs £i ss. to bo paid by the debtor."

At tho hearing on the previous day, Mr. G. Samuel appeared for Mrs. Aekins and Mr. Evans for the bankrupt. ,

A MIXED CROP. DISPUTED ARBITRATION. Sir Bobert Stout (Chief Justice) gave judgment yesterday in the, case of Robert Archibald, of Eketahima, farmer, against the Eketahuna Farmers' Co-operativo Association, Ltd. Plaintiff asked that an award of an umpire under the Arbitration Act, dated March 30, 1011, be enforced. By the award, the association was to pay him '.£6l Ms., and this sum had not been paid. The occasion of .tho dispute was that plaintiff had bought certain seed from tho defendant company with the object of raising a crop of swedes. What came up, however, was a mixture of swedes and purple-top Aberdeen turnips. There was a counter-motion jo set nsido the award on ground of irregularity, and tho case was argued as upon the counter-motion. . There were six grounds for (his application. As summarised by his Honour in his judgment, they were: (1) That the plaintiff had been guilty of misrepresentation as to the kind of turnips in the field, and thus induced the agreement to refer. (2) That the umpire declined to veccivo evidence tendered by the defendants. (,1) Improper conduct of umpire, (i) That the umpire was chosen bv lot. (5) That the proceedings before the umpire were improperly dominated by the solicitor for the plaintiff. (G) That an improper basis was adopted in assessing damages. There were numerous affidavit's, and no umpire was examined and cross-examined before the Court. His Honour set aside a preliminary point .that the application to set aside the award was too late. He then dealt with the grounds alleged for the motion. "As to the first ground, I am convinced that the directors of the defendant company did not see the field of turnips before the agreement was made, and hence knew as. much about it as the plaintiff. Secondly: They certainly knew its condition on. the day the agreement was signed, but after it was signed, as they then visited tho field._ No objection was taken to the rcciials in the submission, which reads, 'Whereas the claimaut supplied certain soft turnip seed in error, and the claimant solved the same, thinking it to be swede turnip seed.' The directors saw the field, nnd saw that somo small part of the field had swede turnips. It is too late now to set up that tile company was deceived. The company has gone to arbitration knowing the facts, and it raised the point only when the award went against it As to the second, third, and fifth grounds, I have perused the affidavits, and heard the umpire's oral evidence, and I have come to the conclusion that these grounds have not been proved. All the evidence tendered was admitted. It is true the umpire told the plaintiff that he did not wish to hear more witnesses on one point on which several witnesses had been called, but it appears that after the evidence of the defence was called, he slightly modified the prima facie impression "he had formed.

"As to tho fourth ground, the selection of the umpire by lot: What was done was the arbitrators agreed that two men were fit and proper persons for umpires, but one arbitrator wanted one and the other tho other. A lot was cast, and the one to whom the lot fell-was chosen, and duly appointed in writing. In fact, an ancient Jewish mode of choice was adopted. It was held that if both parties agreed to were fit, an appointment by lot is not bad. (In re Hopper.) That was this case.

"The last ground was that the basis on which damages were assessed was bad. In my opinion, the basis was correct. The basis was the difference in value between a field of swedes and the field of soft turnips, with somo swedes in it (nbotil. one-fifth, the umpire says). Tho defendant's counsel seems to have been misinformed as to (he basis adopted. The basis was not the injury to the cows of the plaintiff."

Tho motion to set nside the award was dismissed, and the motion of the plaintiff was granted, with three guineas costs on each motion and the witnesses' expenses and disbursements.

Jfr. Page appeared for plaintiff, and Mr. C. li. Dix for the defendant company.

MAGISTRATE'S COURT. (Before Mr. W. G. Riddell, S.M.) j DISCHARGING SEAMEN. ACT ML'ST BE COMPLIED WITH. Ihe failure of certain shipmasters to com))!}- witli Section 55 of the Siiiiijii mid Seamen Act, 11)08. as amended (wliicli provides that seamen must bo discharged before the Government Superintendent of Mercantile Marino), occupied the turn Ot Mr. \V. 0. iiiddcll, S.M., vester(li'.y. The shipmasi, r?concerned were Captain I?. 10. Smith, of the steamer Mokoia, and Captain W. Mnnnii];,', of tlie Mararoa. Captain CI. 0. Smith, Superintendent of Memnjtilo .Marino at Wellington, conducted the ease for the prosecution, and Mr. I'. W. Jackson appeared i'or the defeudal) ts. Captain Smith, of tlie Molicia, admitted having tailed to sifr;i a man olf at the Shipping Office, hut said (hat it was not his wish to evade the Act. The man in (|iiestiou —a cook —tool; ill, and was unable to proceed with the vn<*>l. and .«i the time the Shipping Oflke was eloped. In view of the evidence of tbo defendant, his orihip dismissed th? information.

Two charges were preferred .-.gainst Captain Manning. In one cii.-e his defence was exactly the same as th:i( sot up l).v the captain of the Jlokoia, and tlit- information was disputed. In (lie oilier ense, hi wliieh the nia:i discharged was transferred to another vo>cl, iiilor the Shipping Office liad clored, « conviction was entered, and defendant was ordered to .pay costs 7s.

His Worship remarked that majors of vessels must reeogniso that seamen must be discharged in accordance with the Act. In the ease of illnp'S of a seaman, master* were empowered to discharge them, hut they should >ee that entries to this effect were made in the log-buck. . POLICE CASES. A middle-aged man named Win. Kennedy pleaded guilty to a charge of having on July 111 stolen a ru? and various articles of'clothing, etc., of a total value of £5, the property of Geo. . Miles. Accused was remanded until Saturday for sentence in order to enable the police to make further inquiries as. to character. Daniel O'Callaghau was charged: (P With insobriety; (2) with disobedience of an order to pay £1 per week towards the support of his wife and children. On the first charge accused was convicted and discharged, and, on the second charge, he was remanded to appear at Cambridge on July 19. Bryda Sbeehan failed to appear in answer to & charge of importuning, and was convicted and fined JOs., in default seven days' imprisonment. Archibald Peachey and Denis Bnvrncy were each fined 10s., in default 4S hours' imprisonment, for' insobriety. Two first offenders were convicted and discharged.

CIVIL BUSINESS. CLAIM FOR COMMISSION. Judgment in the commission case between tho New Zealand Farmers' Cooperative Distributing Company, Ltd. (Mi. Luckier, and G. Dome (Mr. Stafford) was delivered by Mr. W. G. Kiddell, S.M., yesterday morning. The plaintiff company claimed «£6C 10;. for work dono and services rendered in connection with the sale of a farm of 123 acres from the defendant to one Bromley, at £29 per acre, the rate of commission being 5 per cent, on the first X2OO, and 24 per cent, on the balance of the purchase money. Defendant's counsel raised two objections as to plaintills' right to recover:— (1) That the selling of laud on commission was not within the company's powers (as defined by its memorandum'of association), and, that being so, it could not recover any commission for an act which was ultra vires. (2) That if plaintiffs were entitled ta any commijsion, then it should not be the amount payable in the case of an immediate sale, but a lesser amount such ,as is paid where tho buyer introduced had taken \ lease wiln the right of purchase throughout the term. As to the first objection, Vol. A', pp. 255. Laws of England, the term "ultra vires" was denned as denoting, in its proper fouse, some act or transaction on the ii-irk nt a corporation .which although not unlawful or contrary to public policy if done by an individual was yet beyond'the legitimate_ powers of the" corporation as denned by its plinrfer or memorandum of association.. Having regard to the objects lor which the plaintiff company was established—as set forth in the 'memorandum of association—the evidence which showed that the transaction was not speculative, but was either directly or indirectly conducive to the interests of the company's members, and incidental to its main objects, the objection laid on the ground of tho transaction being ultre vires could not be sustained. With regard to tho second objection, continued his Worship, it had been agreed that in cafes where the agent introduced a lessee who in taking ;i lease also agreed to purchase the. land under lease during the term, the commission paid should be kwer than on a sale, plaintiff was, therefore, not ontitled to more than tht> lower rnte of commission—s per cent, on two years' rental. .£2lO, together with 1 per cent, on the amount of the purchase money, ,£2!70. Judgment was awarded plaint.'tf for .£35 10s., with costs amounting to M ISs. OTHER DEFENDED CASES. An acetylene gas producer formed the subject of litigation between F. ,1. Shslton, importer, of Wellington (repreented by Mr. I)ix) and Henry' licdleV, sellior, of Poluii (Mr. Fair), a suit for the recovery from tho b.ttpr—the defendants—of .£3l Us., alleged to be due for work done and goods supplied in connection with the installation of an acetylene gas producer. Defendants contended that tho installation had not.been a success, but the plaintiffs declared that neglect must have contributed to any difficulties which might have been experienced. Having heard the evidence, his Worship (Dr. A. M'Arthur, S.M.) reserved judgment till July 20. Judgment for the defendant, with co=ts, was awarded by Mr. W. G. Riddell, S.M., in the civil- action Standidge and Co., painters and paperhangers, of Wellington, v. A. Moult electrical engineer, of Wellington, wherein the plaintiffs sued for the recovery of £3 15s. Mr. S. J. Moran appeared for the plaintiffs, and Mr. E. K. Kirkcaldic for the defendants.

JUDGMENT SUMMONSES. (Before Dr. A. M'Arhur, S.M.) Wm. Donovan was orderrd to nay «£33 12s. 7(1. to H. C. W. Blick on or befnr? July 20, in default to undergo one. month'? imprisonment. Arthur Backhouse -rcr.s ordered to pay £3 17?. Gd. to H. Heiman on or before July 27, in default to undergo three days' detention. No orders were made in the following cases:— G. Hardt and Co., Ltd., v. Gilbert. A. Craijr, a claim for JES 15s. lid.; H. Wise and Co. v. Philip B. Valpy, .£3 13s. UNDEFENDED CASES. (Before Dr. A. M'Arhur, S.M.) Judgment for plaintiffs by default was entered up in the following: undefended cases.— A. L. Scoullar v. XC. Hawthorno, J;3 10s., costs 11s.; John Korton v. T. Thompson, £9, coi-ts .El 3s. Gd.; H. N. Maddox and Co. v. Anthony Grey, costs 10s.; J. Myers and Co. v. W'. A. M"'Kobarts, £1 75., costs 10s.; Alfred Theodore Bradley v. Thomas Harley, £2 55., costs 125.; same v. John N. Nemo, £o ss. 6d., costs .£1 3s. Gd.; Green and Davis v. J. F. If. McCarthy, JEI 15s. 2d., costs 55.; Schlaadt and Co. v. Wn. Nelson. £3 125., costs -CI 3>. Gel.; Wellington Drivers' Industrial Union of Workers v. John Gnode, £1 .'is., casts •55.; snmo v. Alexander Gough. £1 35., costs 5<.; same v. Edwnrrl Gougli, -El 3?., costs ")>.; same v. Cha;. llonry, £1 a?., costs ss.