SUPREME COURT.

Globe, Volume IV, Issue 339, 14 July 1875, Page 2

SUPREME COURT.

SITTINGS IN CHAMBERS. Tuesday, July 18. (Before His Honor Mr Justice Williams). His Honor sat in the Court Chambers at 11 a.m. RE JOHN HENRY WILSON. His Honor made an order of adjudication as prayed, fixing Wednesday, 21st instant, at eleven o’clock, for first meeting of creditors. RE NORMAN FILE. On the application of Mr O’Neil, his Honor made an order fixing Thursday, sth August, for final examination and discharge. RE J. M'QUILKIN V W. BURNIP. On the application of Mr O’Neil, his Honor granted leave to issue debtor’s summons herein. RE PETITION OF W. SAUNDERS AND OTHERS, CREDITORS, AND RE THE ESTATE OP JOHN STEPHENSON, A DEBTOR. Mr Garrick obtained a conditional order of adjudication, returnable fourteen days after service at the late residence of bankrupt, in Christchurch. RE WILL OF JOSEPH GLENDINNING, DECEASED. On the application of Mr Garrick, his Honor allowed the application made for probate to stand over till Friday next, to admit of affidavit being filed. RE GOODS OF JAMES RICHARD LEGGE, DECEASED, INTESTATE. Mr Bamford, for Mr Hanmer, obtained an order for leave to issue letters of administration to Maria Legge, widow of deceased. CREYKB V DRANSPIBLD. On the application of Mr O’Neill, argument in this case was allowed to stand over until after the civil sittings. RE MIDDLETON AND M'QUADE ADJUDICATION, AND RE THE PETITION OP C. W. TURNER TO ANNUL SAME. Mr Garrick appeared to support the petition, and Mr George Harper contra. His Honor delivered the following judgment on this petition : This was a petition of Mr C. W. Turner, a creditor of Messrs Middleton and McQuade, the bankrupts, to annul an adjudication of bankruptcy against th*m made on the part of P. W. S. Miles, and others by their attorney, Mr Murray-Aynsley, The substance of the points raised by the present petition is, Ist—Whether under oui Act a creditor can petition by attorney, and secondly, whether in this case there was sufficient proof before the Court of the pet! tioner’s creditor’s debt, and of the Act ol Bankruptcy. It was also objected that if a creditor can petition by attorney, yet, that in this case there is no evidence that Mi Aynsley was attorney of the petitioners duly authorised to present a petition in bankruptcy. The 59th section of the Act of 1867 enacti that a creditor or creditors shall not he eu-

titled to petition except in respect to debts of a prescribed amount, and the 62nd section enacts that a creditor’s petition for adjudication shall be verified by affidavit of the petitioners. It is contended by the petitioner that the petition for adjudication was irregular, as not having been signed by- the the petitioners personally, and not having been verified by the affidavit of the petitioners. The petition was in face signed by the petitioners by their attorney, Mr MurrayAynsley, and verified by him. By the English Bankruptcy Law Act Consolidation Act, 1849, sec 89, it is enacted that proceedings to obtain adjudication of bankruptcy shall be by petition, such petition if presented by a creditor being in the form specified in the schedule M to the Act, and the truth thereof verified by the affidavit of the petitioner in the form specified in the schedule N. By the form of schedule M it appears that the petitioner is to be the creditor himself, and the signature that of the petitioner himself. The form of verification in schedule N is an affidavit by the petitioner named in the petition. By the Bth section of the Act, the Commissioners of Bankruptcy may make such rules and (rders as they may think fit for the better carrying the Act into execution, and generally for regulating the practice of the Court, and the forms of proceedings where not provided for by the Act. By the 21st order of the 19th October, 1852, it is provided that, except where otherwise provided, every petition shall be signed by the petitioner ; but that in the case of the absence of any petitioner from the United Kingdom, the signature of the party presenting the same on behalf of the person so absent shall be sufficient. It will be seen that the order does not purport to give power to a person to present a petition on behalf of an absent principal; it merely prescribes that the signature of the party so presenting the petition shall be a sufficient signature. The right of an absent creditor to petition by agent is assumed. The order sets out the formality requisite to exercise the right. Our own Act prescribes no exact form of petition, nor is provision made for the way in which the petition is to be signed. I gather therefore—construing our own Act by the light of the English Act of 1849, and the rules thereunder—that there is nothing to prevent a petition being presented by an attorney on behalf of a creditor unless it be necessary under section '62 for the petition to be verified by the creditor himself. As to the verification of the petition, the English Act, like our own, prescribes that it shall be verified by affidavit of the petitioner, The order under the Act prescribes that the signature of an agent to a creditor’s petition for adjudication is sufficient, but the creditor himself still appears in the petition as the petitioner, and there is nothing in the Act or rules to say that the petition may be verified by any one else but the petitioner himself, or to vary the form of the affidavit in schedule N, unless it be a necessary inference that notwithstanding the wording of the Act, the person who signs the petition—though signing as agent only—is to be considered as the petititioner for the purpose of making the affidavit of verification. I think this construction of our Act is justifiable, not only as reading it by the aid of the English Act, but on the broader ground that the Court should give effect to the manifest intention of our Act to benefit alike all creditors, whether present or absent, unless the words of the Act show very clearly a contrary intention in any particular case. By the 64th section of the Bankruptcy Act of 1867, the Court, on proof of the petitioning creditor’s debt, is to adjudge the debtor bankrupt. It appears to me that after adjudication, a creditor applying to annul must show either that there was absolutely no evidence before the Court of the debt and the act of bankruptcy, or must controvert the fact of the existence of a debt, and of the committal of an act of bankruptcy. If there were any evidence from which the Court might have inferred the existence of the debt, and the commission of the act of bankruptcy, I think that it would not be sufficient for a creditor to impugn the sufficiency of the evidence on which the adjudication was founded, but that he must go further and show that the debt was insufficient, or that the act of bankruptcy had .not been committed. In this case Mr Murray-Aynsley, in his affidavit filed with the petition, swears to a debt of £6O 14s 6d as then due from the bankrupts to the petitioners, and also to the fact that a deed for the benefit of creditors had been executed by the bankrupts, and filed in this Court, and that no declaration of complete execution had been made within the prescribed period. A copy of the deed is set out in the petition. It appears on the face of it to have been executed and attested as required by part 18 of the Bankruptcy Act, and to have been filed in due time after its execution, I think there was sufficient prima facie evidence of the debt and of the bankruptcy before the Court to justify the order of adjudication being made, and the present petitioner Jhas not adduced any evidence to show either the insufficiency of the debt or that no act of bankruptcy was committed. On similar principles I think the burden of showing that Mr Murray-Aynsley was not in fact the attorney of Miles and others as he purported to be rests on the present petitioner.

There is a distinction between the case of the'bankrupt himself and any third person applying to annul an adjudication. In the former case, the onus of supporting the adjudication is on the respondents. In the latter, the legal invalidity of the adjudication must be clearly made out by the petitioner. To quote Mr Dona (p. 774) “The application of the creditor is based upon some fraud in the initiation of the bankruptcy, or some defect or irregularity in the proceedings, which would have the effect of inflicting upon the creditors a substantial injustice, and which the Court would otherwise be powerless to remedy.” I quite think that the affidavits in the original petition should have been made clearer, and fuller; but I think there was sufficient evidence for the Court to decree a valid adjudication, and that in order to annul that adjudication, the petitioner must show the non-existence of the debt, or that the act of bankruptcy has not been committed This has not been done, nor has there been any attempt to show that the adjudication haa inflicted any injustice either on the general body of creditors, or on the petitioner. For the above reasons, the petition must be dismissed with costs. Before the rising of the Court, Mr Garrick obtained leave to appeal at the sitting of the Appeal Court, to be held in Christchurch on 26th instant,