READ’S TRUSTERS RE ROBERT COOPER. -IN BANKRUPTCY.

Poverty Bay Standard, Volume X, Issue 1097, 8 July 1882, Page 2

READ’S TRUSTERS RE ROBERT COOPER. -IN BANKRUPTCY.

Mr. Gbeexwxlod, Registrar of the Court sitting in Bankruptcy on the case of Read's Trustees v. Robert Cooper, a petition lo adjudicate Robert Cooper a bankrupt, gavo his decision on Thursday afternoon. This ease was about as cruel an instance of malicious persecution as wo have ever heard. Messrs. Coleman and Clarke, as Trustees for the Estate, having taken upon themselves to waste trust moneys in the purchase of a debt which they allege Cooper to be unable to pay, for tiio purpose of putting a stop to e.:. .;.i:i proceedings now

pending in the Supremo Court. We wonder whether Mr Coleman, who

appears as .• oiieitor on the record in the ease of Cooper v. Coleman an 1 Clarke, Rees, and Wi Pere, and who is also a Trustee in the estate, receives fees for his share in this precious transaction? We fancy if these glaring instances of abuse of trust were brought under the notice of the Supreme Court the Trustees would be ordered to refund the purchase money and costs to the estate, aud most probably get notice to quit, which we think would bo a considerable saving to the heirs. Considering the number of people it supports, this estate must bo possessed of most wonderful elasticity. How long will it last at tho present rate of going ? Mr Greenwood proceeded to analyse the evidence, as follows :—- The first case relied on by tho learned Counsel for ihedebtor—Dearie v. Hall—would show that assignees failing to give notice of transfer to them of a debt might suffer in consequence of such neglect, as against a person who had a better claim in consequence of giving such notice.

If McDonald had subsequently sold his debt to a third party, who had given notice of such sale to Cooper, and Cooper had paid such third party, Road's I'rnstees would have lost their right to recover from Cooper, who could not be made to pay again. The debt must be considered as an equitable and legal debt due by Cooper to assignes. Notice not being required in this ease. In the second objection offered by the learned counsel for defendant. It cannot be denied that Mr Birch's affidavit is meagre, but it seems that ho duly returned a writ of fi. fa. on 10th May, 1882. If, as suggested, that was the writ issued in 1881), the return would not bo duly made. I must, therefore, hold that the affidavit is sufficiently full to shew that the writ of 1830 is not meant, and that a subsequent writ has beon issued, especiallyas the first writ is expressly mentioned in computation of amount duo in the margin of the Sheriff’s warrant to the Bailiff. Under the circumstance I must assume that the Sheriff's action ban been legal as iiotanig is slic'.vii to the contrary. The

burden of proof of illegality is thrown upon the debtor. I now come to the third ground on which I am asked to dismiss this petition, and it is the point on which the greatest number of authorities are cited. It is urged in support of dismissal: Ist. That this is a purchased debt. 2nd. That it was purchased with the object of founding bankruptcy proceedings thereon. 3rd. That the object of such proceedings was not the good of the creditors or the recovery of monies due to the estate, but to impede a Supreme Court action now pending. Caso. ! cit’ed ex parte Ellis re Kain, shews that equitv may be considered when adjudication is sought. -19 bankruptcy L.J pagelS, Sewell expnrle Sewell does not help the case much except in the words of Thesiger L. J., “ the Act is not in-

tended to put a screw on debtor,” a dictum not disputed by either party I presume. L.J. 41 bankruptcy 56 is also against Mr Brassey’s contention, 45 L.J. Bankruptcy 159, ex parte, King re Davis, treats of an abuse of the practice of the Court, bat does not appear to mo to beer ou this case in any way. I now come to the last case cited by'Mr Brassey, and in my opinion by farthemost important in its bearing on this case. The case ex parte Griffin in re Adams, L.J., 48, bankruptcy 107 and Law Report 12, 480., is one of the strongest that could well be imagined in support of an application to dismiss the petition and in its strongest and worst phases it bears no resemblance to the case I now have to deal with. Still it lays down very clearly that where a dell ie purchased for the purpose of making a person a bankrupt, or to compel the abandonmen t of legal proceedings by the debtor —-£7<c Court toil! refuse to adjudicate. Against this contention

the learned counsel for the petitioners have urged with much force the ruling of Judge Williams, in Case v. Mackay, reported on page 151 Jurist, vol. 2, at the end of which it is laid down that mag must be taken to mean shall. But in the English Act as stated by Judge Williams the word is shall, and yet the ruling in re Adams was as I have stated, and therefore, in spite of Judge Williams’s ruling, I cannot refuse to consider the applicability of the case re Adams. Now what are tho facts disclosed by the evidence. Is.. That the petitioners claim large sums of money as due to Read’s estate by the debtor.' 2nd. That the petitioners, instead of relying on any debts due to tho estate by Robert Cooper, lu;/ a debt due I;/ Robert Cooper to to a Ji£r McDonald, and without giving any notice to Cooper proceed to institute these proceedings against him. That the debt was purchased for that express purpose is not anyway denied and by the evidence is clearly proved to my mind. I must, therefore, dismiss the petition with costs to be taxed in the usual manner.

This closed the proceedings.