INTERESTING JUDGMENT.

South Canterbury Times, Volume XV, Issue 2068, 8 November 1879, Page 2

INTERESTING JUDGMENT.

The following Judgment given by Mr Justice Gillies affecting the disposal of a bankrupt estate pending criminal proceedings against the bankrups, will be of intrest to those uninitiated. :—No doubt a Inng series of decisions of the most eminent and learned judges has established the principle that where a debt is founded on a felony, it is not provable until the felony has been prosecuted. But on what grounds this takes place—what is the position of the creditor in the meantime—has not been so clearly determined. I think that in the case cited by Mr Hesketh ( Ex par te. Ball v. Shepherd), Lord justice Brain - well endeavoured to analyse the position of the creditor —that is, whether either was a suspicion of hin remedy or otherwise. It does seem difficult to say in what position the creditor is. But the principle appearently uuderfying all these decisions is that the creditor, it he uses due diligence in endeavoring to bring the felon to justice, is then entitled to prove. But if, on the other hand, he in any way connives at the felon escaping justice, then he is not entitled so to prove. In the present case, it seems from the affidavits, that the creditors merely postponed taking proceedings (1)“ because of the backrupt’s illness, and (3) the length of time necessary to discover the defalcations. They have sworn that they have not been guilty of any unuececsary delay, and it appears to me that they are now in a position to prove their claim. The only doubt I have is as to whether they should be allowed to prove their claim and take their dividend before or after the termination of the criminal proceedings. But it is sworn that the accused has been committed for trial, and that he has confessed his guilt. If it had been otherwise, it might have been possible for them to have avoided giving evidence upon the trial, but I do not think we ought to presume that they would have done so, for they would have been bound over in the same way as other witnesses to give evidence. Seeing, however, that the debtor has admitted his guilt, that involves the result that he would be convicted. Therefore, there appears to be no necessity for postponing the right of proving in such circumstances. Ido not see any such necessity in the present case. I am, therefore, of opinion that the creditors ought to be allowed to prove and receive their dividend.