IMPORTANT BANKRUPCY DECISION. Dunedin, August 23.

Te Aroha News, Volume II, Issue 65, 30 August 1884, Page 3

IMPORTANT BANKRUPCY DECISION. Dunedin, August 23.

Iv bankruptcy, -Judge Williams gave tin important judgment on the following questions in Cuthrfo's estate. The landlord had put in distraint for £400 due for two ycais' rent. The Act en titled the landlord to preference so far as six mouths were concerned, and the question was whether it was the intention of the Act to give only that preference, and to deprive the landlord of his common law right of distraint. Mr Woodhouhe, for the landlord, contended that it was the intention of the Legislature to make the landlord a preferential creditor. ]f the landlord's rights existing in common law were to be taken away, tliey inu&t be taken away in a manner expressly provided. ! fib Honor said— "The light to distress is ft common law right, and it e.vif-ts .so long as the t«rm exists unless it i.s expressly taken away hy Legislative enactment, and in order to ascertain if it is so taken away the Court would have to bo .satisfied. The intention of the Legislator© was clear beyond all possibility of doubt. It is a well-known rule of the construction of statutes that fommon law rights are not to be taken away by a side wind, but that if it bo fcho intention of the Legislature to alter thy common law, the intention must appear very clearly. Now, apart from section 121, there i.s no question at all but that the landlord's right to distrain is not taken away either expressly or by any indication at all reasonable or otherwise. The only question is whether section 121 takes it away. Now, section 121, for reasons which lam unable to divine at all, makes the landlord a prefeiential creditor in respect to six months' rent. It also allows him to prove in respect to rent accrued due beyond the six months, and then it goes on to say :— 'It f-hall not be necessary for a landlord to coy a di--tre^.' Th.it seems to me tv simply piovide thai where six months' rent is due the landlord is to have absolute right to it as a preferential creditor, without troubling himself to put in a distress for the amount. Theie is nothing at all in the section as 1 lead it that iorlnd-. the landloul (o distrain for any execs'' of rent due. The section, in fact, assumes that the landlord's l ight exists, and I think the construction put upon it by both tJ>o learned counsels is the correct one, that the picfeience refeis 1o six months' rent. It simply s lys : — ' It shall not be necessary in respect to this six months' rent for the landlord to excicise his legal light.' In the KnglNi Bankruptcy Act, and in the Debtois and Creditois Act, \S~(k theie are express provisions legu latingand limiting the landlord's power to distrain. Of course, if there were cvpre*s provisions regulating and limiting hi.s po"\\ or than as they extend, his common Hw light is modified. In the pie-ent Act theie aie no such provisions. They have been omitted altogether by an o\ei'sicrht, and an untoitunafe oveisi^ht. I think it is a very gieat pity that the Leuislatuie should not have made pro\ ision tor that particular case. However, my business is not to make the hn\, but to administer the law as it stands ; and as the law stands-, I have no doubt at all about the matter that there is nothing in the Act to interfere with the Luidloid's common law right." Judgment accoidinuh.