DISTRICT COURT.

Temuka Leader, Issue 2243, 20 August 1891, Page 2

DISTRICT COURT.

- Timaru—Tuesday, Aug. 18th,

(Before His Honor Judge Ward.)

IN BANKRUPTCY.

An order of discharge was granted E. B. Eichba.um.

Tn re Byrne Bayley, Mr Knubley said the creditors had agreed to the bankrupt’s discharge on payment of 3s s£d in the £. D. M. Ross, Deputy Assignee, gave evidence to the effect that the bankrupt obtained credit on the representation that he owned the property, and his wife had put in a claim for £13,000, which she did not prove. She gave a bond to pay £3OO over and above the amount the estate realised. Bayley was in receipt of a pension from the Irish Government, and his wife possessed property in Eugland. His Honor said as he had left the colony he. would grant the order, but had he remained he did not think he would have done so.

In re Williams and Colville, Mr Ross made a statement showing that the bankrupts had given a bill of sale over their stock-in-trade to Job Brown, but the bill was not registered, and he disputed it. Subsequently Mr Brown agreed to purchase the estate at £l2O (which was more than the creditors put upon it) and that gave a dividend of 4> 6d in the £, which the creditors agreed to take. Now the bankrupts were in possession of the premises again, and the creditors objected to their retaining them at 4s 6d in the £. The creditors, both in Canterbury and Otago, were much exercised about the way the bankrupts had carried on their business.

• His Honor said the bankrupts, or one of them, must be put in the box, and Henry Williams ?ame forward. In reply to his Honour he said they commenced business in May,,1889, and the bill of sale was given in June of the same year. It was not registered. The . debt to Guthrie and Lamach, £74, was incurred in 1890. He told Mr Guthrie of. the bill of sale, and was given credit after telling him. Some of the other creditors were not told; as to the others he was not sure whether they were informed or not. He had a capital of £4O in cash and £7O in stock whbn he started.

Mr Ross : There is also an application for the payment of costs, ' I think if you give the bankrupt his discharge he ought to pay the costs; he is in possession of the estate now.

Bankrupt: I cannot pay the costs. I am working for a small wage, 60s a week. Mr Salmond said the costs were £l9 11s 4d, all but £lO costs out, of pocket. Supposing the bankrupt’s conduct had not been what it should be, that was no reason why the solicitor should be deprived of his costs. His Honour: Have you anything to say for your client ? Mr Salmond: I am not aware that there are any charges against him. If your Honour thinks there are I will call the other man, if your Honour thinks it necessary.

His Honour: The question of necessity is entirely for yourself.

Mr Salmond said he did not know that giving an Unregistered bill of sale was an offence against the Bankruptcy Act, or that it was an offence to neglect to inform anyone before getting credit that they had an unregistered bill of sale over their property; the question was whether they had reasonable prospect of paying for what they got. The non-registration of the bill of sale was not relevant at all. It was not thought necessary by the Legislature to make it compulsory to register bills of sale.

His Honour: It is certainly not a case for immediate discharge. If a debtor chooses to give a creditor a bill of sale, there being no other debts due, then it is a matter between themselves whether the bill of sale should be registered. But if after giving the bill of sale the debtor proceeds to trade and conceals from other creditors the fact that he has given a bill of sale, he trades on the appearance of having a stock-in-trade, which, so far as registration shows, has no claim upon it. Ido not go so far as to say that it is a direct fraud, but it looks very like it! The order of discharge will be suspended for six months. The costs were ordered to be paid, out of the estate, also the costs in the case of Byrne Bayley to be paid out of his estate. EE BRUCE’S MILLING COMPANY. '* Mr W. D. Stewart applied for the sanction of the court to a compromise between the liquidators and two of the shareholders, J. Bruce and T C. Plante, who had offered £2O each, and the liquidators did not think they could get any more, and therefore were willing to accept those sums.—Order granted. In the appeal cases of James Guild and Reid & Gray, a point omitted was* included in the statement. CIVIL SUIT.

Charles Bishop v. Job Brown—Claim £SO, damages for malicious prosecution. Messrs 0, T. H. Perry and Kinnemey for plaintiff. Mr J. W. Salmondior defendant. . There are two similar cases .against other defendants, arising out of the same circumstances, and Mr Salmond asked that all three cases be taken together, but Mr Perry objected, and it was decided to take the case of Bishop v. Brown first and independently. A jury of four was struck, and the following were sworn in: Messrs A. Crawford, M. O’Meeghan, J. Reid, and B. Thompson. The remainder of the jurors summoned were dismissed till the following morning. One, B. Gedye, being summoned as W. Gedye, was dismissed. _ The whole of the afternoon was occupied in arguing a legal plea to the effect that Bishop had already full satisfaction in the judgment for damages which he obtained some time ago against William Ackroyd. Mr Perry argued that the two cases were different. In the case of Bishop y. Ackroyd the judgment was for false im-,. prisonment, whereas in the present case

it was for malicious prosecution. Mr Salmond supported . the plea of satisfaction on the grounds that the previous judgement recovered by the plaintiff against Ackroyd is a bar to any further action for false imprisonment; that it is equally a bar to any action for malicious prosecution, as in such en action damages would be recoverable a second time for the imprisonment | that no action for false imprisonment will lie, because the proceedings complained of were not determined in the plaintiff’s favour; and that no action 'for malicious prosecution lie, because the court in which the pro- will ceediugs complained of took place wa^

not properly constituted, and therefore there was no proescution at all. Mr Eannemey replied, that the argument closed at 6.20 p.m. when his Honour said that he would look in the cases fa large number were quoted), and give his decision this morning. The Court then adjourned to 10 a.m. to day. Wednesday, Aug. 19. On the court resuming this mornings TTia Honor gave his decision on the argument of the previous day as follows ; The declaration sets forth that the defendant' before an alleged and fictitious Court by false representations obtained an order of imprisonment for seven days

against plaintiff, on a judgment summons, and caused plaintiff to be imprisoned accordingly. The plea sets forth that one Ackroyd on the same day and before the same court obtained an order forjmprisonment of plaintiff in the same manner, for 42 days (wherein the said term of seven days was compromised), and procured plaintiff to be imprisoned ; that plaintiff sued Ackroyd in this court for said imprisonment, and recovered £4O damages; and that this judgment and recovery form a bar to plaintiff’s present claim. Counsel for plaintiff contend that there were three causes of action, viz., (1) obtaining order on a fraud summons and on a void judgment; (2) imprisonment by direction of clerk of court just prior to issue of warrant—after the order was granted by the J.P’s; (3) imprisonment under the warrant. Counsel for defendant contends, That the whole proceedings by Ackroyd and the other three creditors were joint proceedings ; that as the proceedings under the judgment summons in an order against plaintiff, an action for malicious prosecution will not lie—(On this contention no reliance can be placed, as in fact the proceedings have been in reality terminated in favor of plaintiff, the order of the J.P.’s being declared void, and plaintiff being declared entitled to recover damages on account of the proceedings under it) ; that palintiff has already recovered damages in respect of the imprisonment alleged in the declaration, and cannot therefore recover a second time in respect thereof. As to the contention of the plaintiff’s counsel that there were two causes of action, the imprisonment itself, and the precedent proceedings and order, it was conceded by defendant’s counsel that such proceedings and order as alleged would constitute a cause of action if taken before a competent court. I do not think that the invalidity of the court should deprive the plaintiff of his right to a remedy. The injury of his good name and reputation was just the same as if the Justices had had jurisdiction.

With regard to the imprisonment, I am of opinion that the plea is good. It seems to me that the reasoning of Chief Justice Bigelow,in Dickinson v. Stone, conclusively shows, on due application, that this tort was committed by the defendant jointly with Ackroyd, and the plaintiff is not entitled to recover a second time in respect of it. As to the imprisonment by order of the clerk of the court, that must, in my opinion be held as part of the imprisonment for which damages were given against Ackroyd. There is no special reference to this in the declaration. As to the cause of action

remaining, viz., the obtaining of the judgement summons and order, I do not think that any action would lie in respect of Ackroyd<s proceedings of this description. The 1 jury must be taken to have considered all these circumstances in assessing damages against him. But the jury cannot be held _to have given damages against Ackroyd in consideration of the proceedings of the defendant. Each creditor brought his separate action and applied for his separate summons and order. In my opinion this cause of action remains valid, and I give leave to amend the statement of claim. The amendment having been made, His Honor suggested that the amount of damages, which under the amended claim must be small, might be settled by agreement, and counsel left the court to confer. They returned, however, without having agreed, and the case was proceeded with. The issues submitted to the jury were: — 1. Had the defendant at the time when he applied for the judgment summons any reasonable grounds for believing that the plaintiff intended to leave the district with the intent to evade payment of his debts 'I

2. Did the defendant make the said application with the intention of frightening the plaintiff into paying the debt owing to the defendant, and not with the intention of punishing the plaintiff for fraudulent conduct 1 3. What damages, if any, is the plaintiff entitled to receive from the defendant 'I Lengthy legal arguments took place, after which Constable Morten and the plaintiff gave evidence for the plaintiff, and James Blyth, J. W. Miles, and J. Brown gave evidence for the defence. The examination of witnesses did.notlast long, but the whole day was taken up with legal arguments, and it was twenty minutes past 4 o’clock when the jury retired to consider their verdict, and after an absence of about half-an-hotir they returned with a verdict. To the first and second issues they replied “ Yes,” and to the third they assessed the damages at £5. The verdict was therefore in favor of the plaintiff, Bishop, but judgment was not entered up, as a legal point has been reserved for discussion, which may yet reverse the decision. The cases of Bishop v. Miles and Bishop v, Blyth were decided in a similar manner, it having been agreed that the verdict given in the case of Bishop v. Brown should apply to the whole three cases. Mr Salmond appeared for the defendants, and they speak in the highest terms of the able manner in which he conducted the case throughout.