SUPREME COURT.

Globe, Volume XXI, Issue 1677, 5 July 1879, Page 4

SUPREME COURT.

SITTINGS IN CHAMBERS,

FfiiDAr, JtxT 4,

[Before His Honor Mr Justice Johnston.!

His Honor sat in Chambers at 11 a m. BUCK T. CHRISTCHURCH “ SUN COMPANY. Mr Joynt sail that Mr Edwards had made the mistake of delivering his issues, and making an appointment to settle them on the As ha was not proso.it he had no doubt abandoned the motion. Motion struck out. GOODS OF MARGARET ANN LIDDELL,

deceased. Mr Thompson applied for an order granting probate to the husband of deceased. His Honor made the order. WILL OF JOSEPH HOBBS, DECEASED. On the motion of Mr Wynn Williams probate herein was granted to the widow and John Barman

HE RICHARD TRUMAN. _ Mr Slater applied for an order of discharge in this case. Hia Honor made the order, BE WILLIAM CLARK. The bankrupt, in person, applied for an order of discharge. His Honor made the order as prayed. BE WILLIAM BARNARD. Mr Slater applied for an order calling upon John Thomas Matson and William Hass, trading as Matson, Buss and Co . to show cause why they should not pay over the proceeds of the sale of certain property of bankrupt to the trustees under bankruptcy. . ~ His Honor said that under the Act there was no doubt in his mind that the Legislature did not contemplate the defeat of the execution creditor by the mere notice an act of bankruptcy, or they would have said so. Mr Harper, as amicus curia, quoted Plater v Purder, L.J. 4', which wont the length ot putting this that the sheriff conld proceed to sale though the act of bankruptcy had occured between the seizure and sal?. Mr Garrick quoted cx parte Eocke, L.E., Chancery 6, which laid it down that if the execution creiitor seized before the filing of the declaration or committal of an act of bankruptcy, the rights of the execution creditor were preserved. (Quoted Judgment Hatherly, L. Chancellor.) . His Honor pointed out that all that had been given notice of was that of a conditional order of adjudication which was after the seizure. Mr Slater submitted that the act of bankruptcy on which he relied for adjudication was before the seizure. .... .. His Honor pointed out that no notice was

Garrick said this was a very important point, and ono which waa raised in the Bank of New Zealand v Sim-, and perhaps his Honor would postpone the matter to consider the subject, and look up the authorities. Mr Slater quoted cx parte Dyson 2d, L.l. After some further argument, the case stood over for consultation of authorities.

ORDERS FOE COSTS. Orders for co-ts wore made in the cases of Alfred Hornbrook and David Foster.

BE JOHN WARNS. _ . This case stood over from, last sitting to enable the trustee to file a report This had been done, and Mr Bamford applied now for the discharge of the debtor. . The trustee, Mr Jones, appeared, and in answer to questions from his Honor, gave an explanation relating to the possession of a cow, which had not been returned as an asset. Mr Bamford said at the meeting of creditors the debtor swore that the cow did not belong to him. His Honor pointed out that the trnsteo camo into Court with merely hearsay statements. The trustee said that the bankrupt had told tho creditors that ho had paid old accounts, and that waa the reason why he had incurred fresh liabilities. All his debts bad been for wearables and eatables. Tho bankrupt hid been receiving 10a per day for seven years, and no sickness more than was ordinary in a Ho was the only creditor attending the meeting when the debtor applied for bis discharge. Hia Honor said that on the face of it there was something to inquire into, and as a matter of principle he thought that the debtor should come up anti bo examined as to whether ho had receipts for tho money paid away by him. _ Tho matter was adjourned for tho exammation of the bankrupt.

BE LUDWIG SCHBOEDEB. Mr Douglas moved that a search warrant issue to William Hawker, the trustee in the bankrupt’s estate, to make search for certain property alleged to he concealed at 1 ai Tapu. His Honor made the order. CAMERON T. O. BRIEN.

Mr Harper moved that the summons granted herein under the Land Transfer Act, calling on defendant to -how cause why possession should not be resumed of land leased to defendant by plaintiff he made absolute. Affidavits of service of the summons as directed were filed. His Honor made an order directing possession to be given within four weeks of date of hearing. BE JOHN BABBITT. Mr Neck applied for an order of discharge herein. Hia Honor mado the order. PETITION OF J. HENDERSON AND El A. SAUNDERS. In this case a rule nisi had been obtained calling upon Alfred Saunders to show cause why he should not be adjudicated a bankrupt on tho ground that he had executed a deed which was fraudulent under the Bankruptcy Act, and calculated to defeat and delay his creditors. IyTV Gresson appeared to make the role ahaoluta. , , i |Mr Garrick appeared contra to show cause against the rule, and took a preliminary objection to an affidavit filed by Mr Gressou as to a transaction by Mr Wo. Saunders, son of tho respondent. Mr Gresson said that he would apply for leave to use the affidavit referred to. The motion was one to make tho respondent bankrupt on the ground of a fraudulent transfer to one Sarah Box who was in England, and who had no attorney here. The respondent had drawn upon Miss Box for .£3OOO forSaundera and Henderson, for which bills were drawn by the firm. Just previous to the bankruptcy of Wm. Saunders the respondent Alfred Saunders transferred his property to Miss Sarah Box. Then there was the mortgage of Wm Saunders for this samo amount of .£SOOO._ Thus it appeared that two additional securities hsd been given for the same sum, and therefore his affidavit was material aad relevant to show that tho transfer of A. Saunders was for the same security as that of W. Saunders. Mr Garrick would submit that a week had e'apsod between the two, and this showed there was no fraud Besides thero was no allegation of knowledge of Alfred Saunders in tho affidavit. The mortgage of Wm. Saunders was to cover a sum of .£SOO and four mortgage! amounting to ,£4500. He submitted that there was no allegation of collusion between tho parties, nor that the sum mentioned iu both instruments was the same. Hia Honor said he could not shut out this affidavit until he heard tho facts of tho case. It might he exceedingly relevant to show that the transaction had been fraudulent. Of course Mr Gresson would have to make out tho connection between the deeds executed by Alfred and William Saunders. Of course Mr Garrick would have leave to file an affidavit as to tho absence of knowledge on the part of Alfred Saunders of the giving of such a mortgage. Tho affidavit of Mr Gresson would bo taken at what it waa worth. Mr Garrick desired to draw his Honor’s attention to section 29, sub section 2 of tho Bankruptcy A ct, under which Mr Gresson was proceeding. [Bead.] Section 30 then went on to show tho persons who were entitled to proceed under section 29, It provided that there must bo a debt due to the creditor petitioning under tho section, but tho petition did not show that there was any debt dne to the petitioncr. A deed had been entered into between W. and A. Saunders and the petitioner Henderson, by which tho respondent in this case agreed to pay tho debts of tho firm, and indemnify the petitioner from any process arising therefrom. Tho petition went on to allego that Edwards and Co. requested him to pay .£17,550 dne and owing to them by the firm of Saunders and Hendertou, which was a breach of tho deed entered into. The petition went on to allege that hills at two years’ date were drawn by the said Wm. Saunders in tho name of tho firm for .£SOOO to Miss Box, and that she was also returned as a creditor in the list of Wm. Saunders’ creditors ; besides which it was alleged that tho respondent had fraudulently executed tho transfer to Miss Box without any consideration. He now submitted that tho breach of a mere indemnification of tho petitioner against tho debts duo by the firm was not a debt dno from respondent to tho petitioner. Hence this did not bring tho petitioner under the 30th section of tho Act (caao quoted ex parte Broad hurst 22 L.J. Chan. 21). Thero was not, he submitted, ground for bringing tho broach of tho deed under sec. 30, as tho words of the statute wore that tho creditor petitioning must have a debt “due to him” which was not the caao here. (Authorities cited, Archibald’s Law of Bankrupt', vol. i, p 185 ; Deacon’s Law of Bankruptcy, vol 1, p. 115; ex- parte Lindsay, 10 L.J. Bankruptcy 49 ; ox parte Penney, 41 L.J. Bankruptcy, 12 ; Eoacoe on nisi prius evidence, 117. Mr Gresson having been heard in reply. His Honor dismissed the summons with costs on the grounds advanced by Mr Garrick.