SUPREME COURT—WESTLAND DISTRICT.

West Coast Times, Issue 101, 13 January 1866, Page 2

SUPREME COURT— WESTLAND DISTRICT.

SITTING* IS CIIAMBKItS.

(Uofore His Honor Mr. Justice Gresf-on ) Kiuiuy, January 12. v IN UK 1). MTtISTY, A DKHTOII.

Mr South appeared for tho debtor, who was in gaol, and applied that he bhoull bo discharged from custody, and that ono nf tho creditors, Mr Spenco, should bo appointed sequestrator. Mr O'Loughlin appeared for Mr Ohesney, another creditor, and did not oppose the debtoi s release. ' His Honor mado the order roquuvd, subj 'ci to enquiiy in reference to the acquest ra tor. In reforonco to tho working of tho Debtors' and Creditora' Act in the Woslluml District, His Honor took thU opportunity of making a fow remarks. Ho said that he saw llioro would bo gre.it difficulties* in its' operation hore, more than in any other pkieo that he know or. In a great niiMriurc, this was owing to there being no resilient jiid jo, and no porson qualified to disposo of the bnsinoss as it aiose. Even if a circuit court was held four timos a-year, instead of twice, it would not remedy tho evil. The only satisfactory wiy that ho could see \vouM_bo tho appointment of a district judgo. By •18th section of tho Act, tho Governor hud, however, to appoint n district judge to iut muW tho Debtors ana Creditors Act. If such n:i oiKcial was appointed, ha iniglib mako ortbivs subject to appeal, if necessity arose. There would bo no other way of preven ing gie.it public ino»nvenience, whether the interests of oredi ors or dob oi s wero conc a rned, or tho distribution of the estntea.

Mr. ""'outh paid that his Honor* remarks wero of great public importance, and rend clause 49 of the Act, by \\ Inch b appeared 111 it pjrsons qiulilicd to act under the clause to which his Honor had alluded, wero banisters and solioitois of tho Supreme Court, who had practised in tho superior court 3of Westminster for thro 3 years, or in the Supiomo Court of New Zealan-t for a Mintlnr term, prior to a such a delegation, or a resident niagistrato who had exercised such functions for •threo yoars. His Honor again romuked on tho desirability of the appointment, nnd adilel that a district judge could do all the business necessaiy, subject to appeal, which could be mado to the Supreme Cum t judge when coming on circuit. The mattcV then dropped IX RK J. MAIITIN WATTS. ,

Mr O'fjoughlin appeared to show cause why an interim protection order to the debtor Watts should be Bet asido, and execution t.llowod to issue ou a judgment obtained in tho magistrates court.

Mr South appeared for the debtor,

His Honor, after looking over the nflidavits filed on both sides, and the order itself, said that when the easo was called on on a previous occasion, it was assumed on both sides that the ordor was a conditional one, and that thero was Homo condition precedent, but it nppeared that Iho ordor was an absolute one, with uo condition whatever attached, but merely an undertaking on I liopurt of a .solicitor. lib thereforo culled on Mr O'Loughlin to go into the caso.

Mr O'Lnughlin then moved that tho order in question .should bo sot asido, uiidor the following circumstances. Captain Watts called ut his (Mr O'Loughlin's) ollico, and gave instructions to Mr Mandy to pioparo his whedule. \yiion this \vns prepared, tlio deb! or askod what tho expenses would bo, and was told that the expense attendant on geltiug the protection ordor alono would bo LI S. putting asido the costs of court and other expenses. The instructions given were complied with, bub Cuptain Watty did not come lion r after the orJer arrived. After somo letters had been fsont, without oO'ci't, Mr Mandy (Mr O'Loughlin's articled clerk) wiolo, by his direction, requesting Watts to name some solicitor to ouiry on the business, as he declined to act imy further for him in that, o.tpacity. His Honor enquired for what rousdn did the learned counsol docline to act further far tho debtor.

Mr O'Loughlin replied, bucauao ho did not come near, and did not pay tho fee« that should have been paid. Application for payment was repeatedly mado, but Wat s did not pay* but made an excuse that ho would not go in a.s ho had paid all his creditors.

His Ilonoi— But, Mr O'Loughlin, you, as his a'toruoy, woro nwaro that that would not lake tho ctso out of com t, for all the debtor's propoity was vetted by tho oidnr of court.

Mr O'Loufhlin taid tho dobtprhnd stated that Boino piopoity was not jnoludod in his echedulo, nnd on thte ho (Mr O'ljonghlln) li;u! in «9(J ft t Miuu.en« for \\n owt» dw to hjm,

His Honor — I do not see how you wero justified in issuing a summons as long ns tho order s'ood iv forco. Mr O'liOughlin — I was under tin impression it wns not iv forco, ns tho debtor had not omplicd with the conditions, nnd statod that lie hnd paid hi'j creditors. His Honor — •Kvon if this wns n sound view, n ruliitiouuhip oxistcd between the ]> uli- h ns suliuilor nud client, You hnd undci'tnkon to obtain nn order of protscthn for uu cnibaimsod man, nml it would surely ho sharp pinotfco t>> suddenly turn round nn 1 sny the debtor must pay the costs, or go to gnol. A solicitor hnd no rijjht to tnko businots und throw it up when lie pleased in such a way Air O'Loughlin — l)ut I dissolved nil connexion your Honor §fth the debtor. His Honor did not think the learned counsol had any ri;;lit to do so, and added, thnt nn oidor having been obtained, tbo petition OJiild not be withdrawn, but by nn order of court. ,Mr O'Lnughlin repoalod, that the debtor would not allow him to go further. His Elonor said that it was n very strange proceeding, even allowing tbo dobtor hnd noted ns described, for Mr O'Longhlin nt'tor undertaking thocase, nnd professing •to protect the debtor ngainst creditors, to turn round nnd sue him himself. Mr O'Loughlin argued, that nfter what had passed between himself nnd tho debtors he could not fancy that be was at all acting for tho latter. His Honor snid, the solicitor should Ikivo told tho dobtor that ho'wa3 going in direct opposition to the proceedings of the court. If tho djlvor's protection was disobliged nt his hearing, ho could thon hnvo boon tried. After some further remarks, his Honor said, that no doubt Watt had not complied with the or.lerof the court, but the question wns, was ho (hig Honor) to withdraw tbo ail interim order of protection. Mr O'Loughlin urged, that ho should do so on tho ground, that the debtor p0*38393.l piopsrty thnt ho did not put into his sohovlule. Ilia Honor roquostod Sli* O'Liiigh'in to road tho passages in tho dilforont uQldavits thnt ho principally depended on in making tho present application, 'poinKiig out thnt "an nnsworing allklavit by tho dobtor that he wns nlwnys ready nnd willing to pny tho amount agreed on for thy scrvicos rendered had also been sworn. Mi' O'Loughlin react a p.issago from tho nflidavits, ppmally relying on ono to tho oftect that there had boon nn or.lor of Oourb mado for Iho dobtor to nnund his sohoclulo within threo avoclu of filing, and stAtingthnt ho hal not done po. .His Honor : To conu to tho real ground, that tho debtor owes L3l Is, costs, Ido not soc, should bo ground for withdrawing tho interim protection at present. Mr O'Loughlin again ncliniltod, thifc by not complying with tho order oP tho court, nnd by paying or sottling with his creditors, tho dobtor bud been guilty of contempt. His Honor : This may, no doubt, bo n civ.Uo for futuro notion against him ; but nt piV3t»n I sco no sufnoionb reason for withdrawing tho ordor, nnd so allow you, his former soltcito: 1 , to sue him. Affer ft titno you ni-iy havo an opportunity of oppojing your name boing inserted in Iho nmoiulo'l s.-hedulo ; but ut prosent I boo no grounds for accelerating your remedy against him. Suppoao a dozen or forty creditors, whosj elaim3 had arisen ainco tho protection ordor w.u giMutcl, woro to suo, it would not bo reasonable to withdraw tha interim ordor nt tho suit of any ono in ordor to lcthjmget judgment moro quickly than ho could do in Iho ordinary course of events. As soon as over tbo enso baa gone through tho Court, you will bo in a position to suo, if your claim v not insorlud iv the scllodulo. Mr South was thon heard for tho debtor, und onlnrgod on tho pointa already suggo.»ted by liis Honor. Ho uho Btnlod that tho agroomont, in tho first, place, w.u thnt iho present opposing counsel would obtain n proioelion order for tho sum of Lls, und wui to tako. tho dobtor through llm Court for L 23. ft was manifestly tho duty of Mr O'Loughlin, as solicitor to tho debtor, to h.ivo protected him with tho order, but instead of that ho withhold ifc. Mr O'Loughlin— Not withhold it. Mr South to Mr OTjoughlin— • I avoi* Hint you did, when you should havo proloolod him so far a-i Iho ordor wont, and thnt dono you had a right to seok payment. ' (To tho Court). Instead of thnt Mr O'Loughlin had actually placed hini3olf iv a position of contempt to tho Court, by, in fact, resisting an ordor of the Court by issuing out oxocutioni ngninst tho debtor, and only desisting by v further ordor of Iho Court. It wna Mr O'.Louglilin's duly to hnvo delivered up tho ordor. Thon the rjlntionship would luvo consed, and ho would have boon in" a position to havo opposed the ordor. As it was, Iho course ho '(Mr Loughiin) had taken was a great mistake. His Honor. — Mr O'Loughlin should certainly have pro luecd tho order whon he sne.l tho debtor in tho Magistrate's Court. Mr South — Protection was actually withheld by uot placing it in tho hands of tho debtor, lie might hnvo been arrested, nt tho suit of Mr O'Loughlin whilst tl^o ordor was actually in Mr O'Loughlin's hands. Morei than that, that gontlonioii ha:l stated in Court on tho ocension, that tiio debtor was not entitled to protection till his costs were paid. Mr O'Loujjhlin denied that ho hud mado any such statement. ili:i Honor quite conourrod that it was tho manifest duty of Mr O'Loughlin to have producod tho order to tho Magistrate on sueing the dob. or. " Mr South remarked thnt through not doing so tliQ Magistrate- wns placed in a falso position. ilis Honor said such facts woro of groat weight; for it \vn3 clear that tho dobtor wns sued in a lower court, and that Mr O'Loughlin sought his arrest through tho notion of tho lower Court, knowing at tho time that tho order of Iho Supremo Court was an answer to such application. Whothov the debtor hnd or hnd not been told ho might see tho order wns a question thnt. had nothing to do with the ciuo. In fact (said his Honor, addressing Mr 0 Loughiin) if your client had been thrown into prison, ho would havo been illegally thrown into prison by you, who suod out his protection . Mr O'Loughlin— But this was long after* ho had refused nnd neglected to do anything to comply with tho order of tho court. His Honor, to Mr O'Loughlin— To put tho •law clearly, it was not your "duty to loavo a magistrate in ignorance- on such an important point. It was Biirelyyour duty to put tho lower court in full possession of the facts, so as to enable Iho Bench to give a correct judgment. Mr O'Loughlin said ho. had not proceeded for a. long time, and not till tho doblo'v himself said his other creditors woro paid. HU Honor— You should havo known that the insolvont had no right to pay his creditors without the intervention of Iho Court. His boing able to do so made no difference whatever when .onco ho had sought tho Court's protection. As it is, I shall dismisj tho application, without costs, however, ou- account of tho improper conduct of tho debtor. Had il been olhorwiso, I bhould have ordered you (Mr O'Loughlin) to pay thorn. In leforenco to tho dobtor, ho had placed himself in v most dangerous posit ion,- and ono that will most certainly bring him into trouble- unless he sets himsolf right with tho Court. . His protection will bo withdrawn aftor tho noxt hearing unless ho does so. If insolvent is in such improved eircumstnuccs, how is his pronortv acquired, Mr South ? ' Mr i?outh was uot awaro. His Honor then, on bohulf of Iho debtor, suggostod that a trust-dood, in accordance with tho 20th soelion of tho Debtors' and Creditor Act, to bo signocl by tho required nuiubor nnd vuluo, and that an order of Court to cancol previous' proceedings Bhould thon be applied tor. Ho nl<o reminded Mr South that oases wero constantly occurring, both iv tho colonjoa i «nd England, whoro trust-woods woro wt twdo through Wiling huwuriiei<<» nml W«t Oi 9«V9 fo \h[v drawmap,

Mr South tlnnked his Honor, and said tho • deed should bo got ready bclbro his Honor left for Ohrißtchurch. ' This was nil (ho* business, and tho Court ' the-n adjourned.