SUPREME COURT—IN BANCO.

New Zealand Times, Volume XXXIV, Issue 5795, 25 October 1879, Page 3

SUPREME COURT—IN BANCO.

Friday, October 24. (Before his Honor Mr. Justice Richmond.) MACDONALD AND ANOTHER V. STEWART. His Honor read the judgment of the Court in the above case, as follows : “ This is a special case stated in an action, in which the plaintiff is creditor’s trustee of a bankrupt’s estate, and the defendants are judgment creditors of the baukrupt. The defendants' judgment was entered up on the 18th July last, and on the same day they sued out, and (as we infer) delivered to the sheriff for execution a writ of fi.fa. under the provisions of the Execution of Judgments Against Real Estate Act, 1867. The sheriff acting under the authority of the writ took iu execution land in the city of Wellington, of which the bankrupt was seized in fee, and caused it to be advertised for sale. The date fixed for the sale (4th October) seems to have been too early, not allowing three months from the time of seizure. This was not noticed on the argument of the case, and nothing seems to turn upon it. A memorial of the judgment was duly registered on 23th July. On the 29th August the bankrupt filed this declaration of insolvency, and duly became bankrupt. Upon this state of facts, the question is whether the defendants can proceed to enforce their judgment without the leave of the Court.

“ Before the passing of the above-cited Act, 1867, the rights of a judgment creditor against the land of his debtor depended upon the general rules of the Supreme Court of 1856. Rule 190 provides that the forms of writ set forth in schedule A, shall bo used in all actions. Only two forms are given, a writ of execution against the g«ods and chattels, and a writ of execution against the person. The enforcement of judgments against real estate is provided for by the adoption, by rule 187, of section 13 of the Imperial Act, 1 and 2 Vic. c. 110. Wt are of opinion that these rules operate to exclude the law of England relative to execution against real estate, except so far as that law is expressly adopted. Nothing like the writ of Etig it exists in this colony under the rule of 1856, except under the provisions of section 15 of 1 and 2 Vic., c. 110, the judgment creditor had before the passing of the Act, 1867, no rights against the land of his debtor. By that section it is enacted that a judgment shall operate as a charge upon the lands of the debtor, and that the judgment creditor shall have the same remedies in a Court of Equity against the hereditaments so charged, as he would be entitled to in case the judgment debtor had charged the same with the amount by writing under his hand. But this enactment ia subject to several provisos. In the first place, it is provided that the creditor shall not be entitled to proceed in equity to obtain the benefit of such charge until after the expiration of oue year from the time of entering up the judgment ; and the statute then proceeds in these terms:— ‘ Nor shall such charge operate to give the judgment creditor any preference in case of the bankruptcy of the person against whom judgment shall have been entered up unless such judgment shall have been entered up one year at least before the bankruptcy.’ We can only Understand this as meaning that the equitable lieu of the judgment creditor ia to be defeated by bankruptcy supervening within a year from the entry of judgment. His charge in that case iu unavailable. Therefore upon the law as it stood before the Act of 1867 our judgment would have been adverse to the defendant. “ It remains to consider whether the position of the judgment creditor is improved by the Act of 1867. The second section enacts that real estate shall be subject to the like remedies, proceedings and process for seizing, selling, or deposing of the same for the eatisfactii n of "debts as personal estate. A new form of Ji. fa. ia given which includes both real and personal estate. Thus land is, for the first time, made seizable iu execution. But execution is to have no other consequences in respect of real estate than of personal. As regards personal estate it is clear that where bankruptcy occurs after seizure, but before sale, the sheriff can proceed no further without the leave of the Court. The same rule must apply to a seizure of realty under the Act of 1867. The position of the judgment creditor is not in a case like the present improved by that Act. We are disposed to think that the charge under section 13 of 1 and 2 Vic. o. 110 ia not taken away by the Act of 1867, but it is unnecessary to decide this point, because in the present case the defendant cannot enforce such a charge. Neither can he proceed to a sale under the 9th section of the Act of 1867. As no special ground is stated why the leave of Court should be granted to the defendants to put in force their execution, wo must leave them to take a dividend with the rest of the creditors.” CIVIL SITTINGS. SCHULTZB V. CORPORATION OP WELLINGTON. Mr. Ollivier for plaintiff; Mr. Travers, with him Mr. Chapman, for the defendant. This was a case in which only questions of law were involved, and was an action to enforce the payment by the defendant of an award of £SOOO made by arbitrators appointed by plaintiff for diversion of the Kaiwarra stream by the defendant, for the purposes of a waterworks, the plaintiff being a mill-owner at Kaiwarra. The case gave rise to numerous arguments between the counsel upon the point whether—the plaintiff not having sent in his claim for damages within six months of the alleged damage having been inflicted—he had any legal claim for compensation. The evidence of A. Marohant, C. 8., was taken at some length in proof of the diversion, Mr. . Travers addressed his Honor at great length, and put in numerous documents, the learned gentleman contending that compensation should have been claimed upon the diversion when it first occurred. C. O’Neill, C. 8., . was shortly examined by Mr. Travers, his evidence being to the effect that the diversion was going on for a long time before the claim was made. The case at 4 p.m. was adjourned till Tuesday next for further argument.