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Hawke's Bay Times, Volume 19, Issue 1509, 16 December 1872, Page 2

COURT OF APPEAL. IN THE COURT OF APPEAL OP NEW ZEALAND. WELLINGTON, NOVEMBER, 1872. NOTES OF JUDGMENT IN RE CUFF, A BANKRUPT. In this case a rule nisi was granted by the Supreme Court, at a sitting iu banco at Napier (August 16, 1872), uuder the 121st section of " The District Courts Act, 1868," calling upon the Judge of the District Court of Hawke's Bay, and the bankrupt Joshua Cuff, to show cause why the Judge should not issue his warrant for the apprehension of the bankrupt, he having failed to appear and be examined touching the affairs of his bankruptcy, in obedience to a summons or order signed and issued by the said District Court Judge, and dated the 27th May, 1872. It appears from the affidavits that the summons to attend before the District Court J..dge was duly served upon the bankrupt; that on his failing to appear the Judge was applied to to issue a warrant for his apprehension; and that he refused to do so on the ground that he had no jurisdiction. Cause was shewn at Wellington before the Supreme Court, and the learned Judge (Johnston), by consent of the parties, reserved the case for the opinion of the Court of Appeal, un(3er section S 3 of the "Court of Appeal Act, 1862." The questions raised by the case are, first, whether the Judge of the District Court was wrong in his construction of the law ; and, secondly, if he was wrong, whether the case comes within the 121st section of the "District Courts Act, 1858"—that is to say, whether it is one in which an order in the nature of a mandamus ought to issue from this Court. As to the first question (relating to the power of the Judge to issue the war-1

rant of apprehension), the trustee under the bankruptcy (the party mo\ing) relies on the 323rd section of the " Bankruptcy Act, 1867," contending that that section must be read as including, or not excluding, the bankrupt himself; while it is submitted on the other side that the section cannot be taken as applicable to any but the bankrupt's wife and any peison — other than the bankrupt —who can give information about the bankrupt's affairs. The words of the section are (323rd section " Bankruptcy Act, 1867 ") : " The Court or trustee and supervisors, by leave of the Court, may. summon before it and examine the bankrupt's wife or any person known or suspected to have in his possession any part of the bankrupt's estate, or supposed to be indebted to the bankrupt, or believed to be capable of giving information concerning the bankrupt, his affairs or his estate, and may require her or him to produce any documents in her or his possession, custody or power, relative thereto, and if the person summoned does not obey the summons, the Court may by warrant authorise any person to apprehend and arrest her or him, and bring her or him before the Court for examination."

Now if this section were looked at alone, it might fairly be assumed that it was not intended to apply to the bankrupt himself, but that in all probability some other provision would be found in the Act of at least as stringent a character, specially applying to the failure of the bankrupt himself to appear after summons. But on examining the various sections of the Act, no provision referring directly to the bankrupt himself, exactly similar to that of the 323rd section, is to be found. The 318th provides that the bankrupt shall attend the trustee on every reasonable notice ia writing ; and section 332 gives the Supreme Court or District Court full power to summon and examine hira ; while section 302 makes it a misdemeanor if the bankrupt do not submit to be examined before the Court from time to time.

The bankrupt therefore is amenable to the Court for neglecting to obey a summons to attend to be examined, otherwise than under section 323, or through the operation of the powers of the Court as a Court of record in dealing with a contempt of its process or its rights to refuse a discharge to a petitioning bankrupt who disobeys its orders.

But if the 323rd section does not apply to the bankrupt himself, the process against him would not be so summary and remedial as that against his wife or against strangers able to give information ; and certainly the 326th section—which gives power to issue a warrant for the apprehension of the bankrupt if he keeps out of the way, so that he cannot be served with the summons—would seem to assume that as stringently coercive a process would be applicable to him, if after being served with the summons he should contumaciously keep out of the way, or fail to appear according to its exigency. It is also to be observed that the 327th section subjects a bankrupt, his wife, and any other person who refuses to be sworn, or to give evidence, or to produce documents, to the same coercion (by imprisonment) till they do that which they have failed or refused to do. There is, then, every reason for believing that the Legislature must have intended that the contumacious bankrupt should be equally subject to arrest for disobeying a summons to appear to give evidence, as his wife and other persons are.

But can it with any propriety be said that the 323rd section does include,, or,, rather, does not exclude, the bankrupt himself? As already remarked, the section, if it stood alone, would lead to the belief that the matter of bringing up the recalcitrant bankrupt for examination had been disposed of elsewhere; and when we look at the other sections we find some which are applicable to the attendance and submission to examination of the bankrupt himself, and not to his. wife or other persona, and a section so close to the 323rd as the 327th expressly naming the bankrupt, as well as the wile or other person, and exposing them all to the same consequences for refusing to

give evidence. On examining the provisions of the English Bankruptcy Act of 1849 on this, subject it will be found that there are three different sections applicable—the 117th, which gives power to summon the

bankrupt and arrest him on his failure to appear; the 118th, which gives power to summon the bankrupt's wife (subject to penalty); and the 120th, which gives power for summoning and arresting other persons. In the face of these considerations it is difficult to come to the conclusion that it was the intention of the Legislature to include in the 323rd section the bankrupt within the words " any person," &c, or •• believed," <fcc. It may indeed well be contended that considering the extreme probability that the Legislature contemplated the exercise by the Court of even more stringent and coercive powers over the bankrupt than those which they had furnished against his wife and others, the 323 rd section clearly implies the existence of the power to arrest him and bring him before the Court. But we can hardly come to the conclusion that the District Court Judge wa3 clearly wrong in refusing to adopt and proceed upon such construction by implication of this section of the Act. It does not seem to have been suggested to the District Court Judge, nor we understand was it argued before the Supreme Court, on behalf of the trustee, that the District Court, being a Court of Record, and, therefore, having power to punish persons guilty of contempt of its process, the Judge might have proceeded by attachment against the contumacious bankrupt. The object of the application was to procure his appearance for the purpose of examination. It is therefore unnecessary to consider of what power the District Court was inherently possessed as a Court of Record. As we have arrived at the conclusion that the 323rd section does not include the bankrupt, it is unnecessary to decide whether, if it "could be held to apply to the bankrupt, an order could properly be made under the 121st section of the District Court Act directing the Judge to . issue a warrant. We rest the decision of the case on the ground that we are not satisfied that the Judge of the District Court or the Supreme Court has the power of issuing a warrant to West and to bringMip for exexamiuation a bankrupt who has refused to obey a summons to attend to be examined. The rule must therefore be discharged. Rule discharged.