DISTRICT COURT.

Globe, Volume XXII, Issue 1868, 18 February 1880, Page 3

DISTRICT COURT.

ASHBURTON. Monday, Febbuaby 16. [Before His Honor Judge Ward.] Patton v Lake and Beard—Claim, £142 2s lid. Mr Purnell for plaintiff, Mr R. D. Thomas for defendants. Mr Thomas asked for an adjournment till next Court day, on the ground that an important witness for the defence was absent. Hugo Friedlander v D. Cameron—Claim £7O, for illegal removal of a house, purchased by plaintiff at a sale of the effects of a man named Hyds, a tenant of defendant's. The question was whether the house in question was a fixture or not, and it appeared from evidence that the house when purchased was on skids, but had a chimney. Argument between learned counsel ensued as to whether the chimney, being a fixture, waß sufficiently attached to the house to render that a fixture also. After very lengthy argument and addresses from learned counsel, judgment wbb given for defendant with costs, it being proved that the house could not be moved without injury to the chimney. Joshua Tucker v. C. 0. Hurrell, olaim £SO. Mr Branson for plaintiff; Mr O'Reilly for defendant. Mr O'Reilly made several preliminary objections, which were over-ruled. It appeared that some time ago one Ford obtained a judgment in the Resident Magistrate's Court, Ashburton, against Bluett and Co. for £SO and costs, which judgment was duly satisfied and the money paid to tho clerk of tho Magistrate's Court, who is also clerk to the District Court. Messrs Orr and Co. afterwards obtained judgment against Ford for a larger amount, whereupon Ford immediately filed a declaration of insolvency. Ford's solicitor, when filing the declaration, cautioned the clerk of the Court that the money in his possession vested in him by virtue of the Act for the use of the permanent trustee, and cautioned him not to part with the money, which the clerk promised to do. Two or three hours afterwards Messrs Orr and Co., with a solicitor, appeared before the clerk of the Court and asked for a warrant of distress. This was made out and sent by the bailiff to the Resident Magistrate's private house for his signature. The Magistrate returned with Messrs Orr and O'Reilly to the Court-house, signed the warrant, and the bailiff returned with it to the office of tho Magistrate's Court, where Mr Hurrell, the Clerk of tho Court gave him an order signed by the Resident Magistrate, directing him to seize these monies, and told him (the bailiff) to seize them, which he did, it being then a few minutes before the ordinary time of closing the office. The money was then given to Messrs Orr and Co., a member of whose firm had been in waiting for the purpose. At the time the distress warrant was issued at the instance of Orr and Co., another distress warrant against Ford had been issued out of the same Court, and was still unsatisfied. Mr Tucker, creditors' trustee of Ford's estate, now sued the Clerk of the Court for £SO, as money had and received to his use. Evidence at great length was heard on both sides, and judgment was reserved till this morning.

Tuesday, Febbuaby 17. [Before His Honor Judge Ward.]

Tucker v HurrelL —Judge Ward delivered judgment in this cane as follows : —The facts proved in this case are as follows : —One Ford brought an action in the Resident Magistrate's Court months ago against Bluett, and obtained judgment for £50.. As it appeared at the bearing of the case that Bluett had a claim against Ford, it was ordered by the Resident Magistrate that he (Bluett) should pay the £SO for which judgment was given into Court, and that the clerk of the Court, the present defendant, should hold that sum until the action Bluett v Ford had been decided, in order that the cross judgment might be set off. On the 10th December last Bluett paid the £SO into Court; on the 12 th one Orr obtained judgment, with an order for immediate execntion, in the Resident Magistrate's Court for £SO against Ford, who thereupon filed a declaration of insolvency. On the same day at 12.30, after the filing of this declaration, Bluett discontinued his action againot Ford. Then Orr obtained an order from the Resident Magistrate, purporting to be under clause 65 of the Resident Magistrates' Act, 1867, directing defendant as clerk of the Resident Magistrate's Court to pay the £SO in his hands to the bailiff. After which the said bailiff, by the instruction of the defendant, drew out a warrant of distress, went to the Resident Magistrate and got it signed, and returned to the defendant, who then produced the order previously given under clause 65, and handed over the £SO to the bailiff, who paid it to Orr, although he held at the time a prior unsatisfied warrant of distress against the goods of Ford. The action is brought by the creditors' trustee of Ford's estate to recover the £SO so paid over by defendant, inasmuch as he was then clerk of the District Court, and became ex officio trustee of Ford's estate in the filing of the declaration of insolvency. It was also shown that defendant was warned by Ford's solieitor, at the time of such filing, that he must not part with the £SO paid in by Bluett, and that he promised to hold it, and that on being further warned by Mr Harris on the subject, he declared that he would pay over the money if the Resident Magistrate ordered him to do so. Had the defendant been merely the clerk of the Resident Magistrate's Court, I should not have had much doubt as to my decision —it would scarcely have been for the clerk to question the legality of an order given by the Magistrate, and to refuse to obey it on the ground of its being erroneous. The difficulty here arises from his being ex officio the trustee of Ford's estate. The question is whether, as clerk of the District Court and trustee, he can shelter himself from responsibility behind an order of the Resident Magistrate; and after careful consideration, I am of opinion that he cannot, especially as he knew it to be irregular. The blunders of all the officials are somewhat singular. The Resident Magistrate, in his private room instead of in Court, before signing the warrant of distress instead of after, and without any inquiry whether there were other warrants out or whether the debtor had filed his declaration of insolvency, made an order in effect directing the Clerk of his Court to hand over the whole of the debtor's assets to the bailiff on behalf of a single creditor, thereby defeating the chief object of the bankruptcy laws, viz.—the securing an equal division of the insolvent's property among the creditors; and also depriving a prior execution creditor of his legal right to this £SO; if it were to be seized at all. The clerk of the Court having promised to retain this fund, and having been warned that the order given by the Resident Magistrate in respect of it is illegal, and knowing it to be bo, nevertheless gives it up without dispute, and the bailiff pays it over to Orr, having at the time a prior unsatisfied warrant of distress in his hands on behalf of another creditor. There can be no question but that on the filing of Ford's declaration of insolvency the £SO then in the hands of the defendant as clerk of the Resident Magistrate's Conrt vested in him as official trustee of Ford's estate, and he had no right to part with it save in due course of law. As trustee, it was for him to see that the order of the Resident Magistrate was legal and valid. It is shown that he obeyed it knowing it to be irregular, and consequently judgment would be given against him; but as his duties in the dual capacity of clerk to the District and Resident Magistrate's Courts were calculated to puzzle better lawyers than he, no costs would be allowed against him. Arthur J. Hunßton v Saunders Brothers. — Mr Branson for plaintiff, Mr O'Reilly for defendant. Claim £SO, for breach of contract in not accepting delivery of certain chaff bought by defendants from plaintiff. Judgment for £39 14s and costs for plaintiff. IN. BANKRUPTCY. lie George Thompson, a debtor. —Mr Purnell made application for final discharge. G-ranted. Be John T. Ward.—-Mr Harris applied for final order of discharge. Adjourned till next Court day. He J. P. Parker.—Mr Purnell made an application for costs. Granted. Re Thomas Williams. —Application for payment of costs by Mr O'Reilly. Granted. Be Thomas Dudson, a debtor. —Application for payment of costs by Mr O'Reilly. Mr Purnell oppoßod on behalf of trustoe. Adjourned till next Court day. An application was made by Mr O'Reilly for probate in re Dennihay. His Honor said ho could not grant it without proof that the judge was absent to-day from the district; that the better course would be for the profession to make application to him, and he would represent the matter to the Minister of Justice, so that the Ashburton district be proclaimed separate from Christchuroh,

WOODEND DISTRICT SCHOOL. A meeting of the committee was held in the schoolroom, on Monday evening, Mr J. Little (chairman) and the following members being present— Hon. H. B. Gresson, Messrs Conway, Daniells, Stanton, and Horrell. Correspondence was read from the Board of Education, enclosing Mr Lambert's report; also enclosing the names of those gentlemen nominated to fill the vacancies on the Board. Letters were also read from the Rangiora. and Loburn committees, asking the committee to support the election of a member north of the Waimakariri on the Board. It was decided to support the gentlemen nominated by the committee at a previous meeting, viz. : Messrs H. J. Tancred and H. R. Webb. It was also resolved that the Board be recommended to carry out the suggestions made by Mr Lambert, the estimated cost being about £66. The chairman was further requested to ask the Board to make an addition of two rooms to the master's house, it being very much needed. The meeting then closed.