IMPORTANT DECISION.

Poverty Bay Standard, Volume I, Issue 280, 7 November 1884, Page 2

IMPORTANT DECISION.

G. BROWN V. P. MALONE. Claim £3O for the recovery of a chesnut gelding branded CO. Geo. Browne deposed that he bought a chesnut gelding from his brother John to liquidate a debt due for wages to him. Gave a receipt for the horse. To Mr. Finn—Had not had the horse in his possession, but left it in charge of his brother. The horse was not in W. O’Meara’s charge that he knew of, but he knew O’Meara who had possession of the animal. At the time of the sale of the horse O’Meara had charge of it up to the tima of his bankruptcy. At the time of O’Meara’s bankruptcy he left it at Burnand’s stables. Saw the horse sold by Mr. Pitt, and knew it was done at the instance of the Deputy Official Assignee. To Mr. Brassey—At the time of the purchase had no idea the horse belonged to O’Meara.

W. O’Meara—Knew the gelding inquestion. Had had the horse in his possession, but it never belonged to him. To Mr. Finn—At the time of his bankruptcy the horse belonged to the plaintiff. Told only two persons the horse belonged to himself. Did not tell the Assignee in bankruptcy that he had told any amount of people that the horse belonged to himself. Had never offered the horse for c ale, but received offers for its purchase. Bexusp ’to sell it to anyone. J. Browne deposed that he sold the horse in question to his brother George in July last. He always kept a diary. The entry on the 7th July shows the sale of the animal. Sold the horse to his brother because he witness owed him money and could not pay him in any other way. Went to the Deputy Official Assignee about the matter when he found the horse had been seized. The Assignee told him that he would have to go and consult his lawyer, as he (the Assignee) was acting under the instructions of his solicitor.

This was the plaintiff’s case. Mr. Finn said the defence was very simple. He would prove to his Worship that O’Meara became bankrupt and at the time of his bankruptcy he had this horse in question in his possession. The Deputy Official Assignee acting under the provisions of section 81 of the Bankruptcy Act, obtained an order of the Superior Court for the sale of the horse for the benefit of the creditors. Now what the plaintiff in this action should have done would have been to appeal against the order of the Superior Court, but this Court could not interfere with the order of the Superior Court. The Supreme Court was to decide whether the horse was the property of the creditors or not.

Mr. Brassey said that was not so. His Worship said that was what the case hinged on, and that point would have to be fully proved. C. D. Bennett, the Deputy Official Assignee remembered John Browne coming to him about this horse which he had seized, when witness advised him to put in an inter-pleader and sue him for recovery. C. D. Pitt was an auctioneer, and sold the house at the instance of the Official Assignee in Bankruptcy. At the time of the sale Mr. J. K. Turton notified that the purchaser of the animal would be involved in a lawsuit, as it was claimed by the present plaintiff. This completed the evidence. Mr. Finn applied for a nonsuit. Mr. Brassey said the bankruptcy of O’Meara had nothing to do with the case whatever. He was not appealing against any bankruptcy matter, as mentioned in sections 8 and 14, as quoted by Mr. Finn. His client simply said, “ I am the owner of the horse, and I will have it if I can prove the ownership of it.” If a superior Court chose to grant an order for the sale of property that might be in the hands of a bankrupt at the time of his bankruptcy, that would be a matter between the Deputy Official Assignee and the Court, and not as between the true owner of the property. He considered as between plaintiff and defendant the former was entitled in detinue to recover the horse. His Worship said as this case was not against the Official Assignee, but the present owner of the horse, he considered, he could deal with it. On the whole tenor of the evidence it appeared to him very clear that O’Meara was the reputed owner of the horse by his admissions here and at the examination before the Assignee, and he (O’Meara) had allowed it to be understood by people that the animal was his property. O’Meara’s evidence was very unworthy and unreliable, therefore he would be compelled to grant the application for a nonsuit. Mr. Brassey asked that judgment be entered for the defendant instead, in order to allow him an opportunity to appeal. His Worship after consideration agreed to give judgment in favor of the defendant.