OFFICIAL ASSIGNEE u PILMER.

Wairarapa Daily Times, Volume XVI, Issue 4994, 5 April 1895, Page 3

OFFICIAL ASSIGNEE ut PILMER.

IN BE F.J. DONOVAN,

The following mitten judgment Mr District Judge Martin, was fPfyelivered at Masterton, this afternoon, by the District Court Registrar, MrP.H.lbbetson:- " Judgment was given in this case in January last. The defendant 'gave notice of appeal and lodged security for costs in due course. The plaintiff proposes to issue oxocution on his judgment and the defendant now applies for an order staying proceedings pending the appeal being disposed of. Section 20, subsection 4, of the Bankruptcy Act, 1892, provides that " proceedings " under the Act shall not bo stayed " by appeal, unless the Court from " which the appeal is brought think " fit to order the proceedings to be " stayed." This sub-section is very similar in its terms to the English Order LVIII, rule 16, and that rule was made " in order to get rid of the rule which formerly

vjirevailed, that a rule him in all Ksesoporated as a stay of execution," per Lord Esher in The Attorney Geneial v. Emoroon, 24, Q.8.D.. p. 28. Tho discretion which tho Court has as to granting a stay of proceedings, is not bound by any decision or practice. Tho Court must decide on the particular facts in each case (Attorney General v. Emerson ante) but several cases havo been decided in England, which shew the way in which the Courts there havo exercised the discretion vested in thorn, and from these it may bo gathered that in the absence of special circumstances, a stay of proceedings is not granted. In Barker r. Lavery, 14, Q.8.D., at p. 770, Lord Selborne says," The defendant • "is not entitled to have the nppli- . " cation granted as a mattcrof course "Evidenceought to have been adJWuced to show that the plaintiff fPi'ould bo unable to repay the cost if he should be unsuccessful before " the House of Lords," and an aplication for an adjournment was refused, the Judgo saying, " Those " who apply for a stay of execution, " must come beforo us prepared with "all necessary materials." Again in Tuck v. Southern Counties Deposit Bank, 42, Ch.D., at p. 478, Mr Justice Kay says, " Where such an " application as this is made at the "moment of giving judgment, and " when the Court has all the facts " before it, tho Court may see reason ' "for granting it, but where- the "application is made 6ome time " af forwards, when the Judge cannot " be expected to remember tho facts " how can it be reasonable to ask the " Court to make an order that the "judgment bo suspended, when no " special circumstances for suspending it, ar« shown." and again, Judge North, says in re tho Queensland Mercantile Agency Company,, 61, L.J.Ch., 48, "It is " now clearly settled by authority, Jffiat the stay of execution-, pending "•?? appeal, will not be granted " unless there were special circum"stances." No special circumstances have been shown in the present case, The plaintiff is the Official Assignco in Bankruptcy—an officer of the Court~and in tho event of the appeal being successful, not only would the debtor's ostate be liable to refund any amount paid under tho present judgment,butin addition the plaintiff would be personally responsible. (Trustee of Henderson v. Evans, 1 0.8. and F, 173). Mr Bunny for the plaintiff, stated that his client would be satisfied if the amount of the judgment wore paid into Court, otherwise I should dismiss the present application, but under the circumstances, I will make an order staying proceedings on tho judgment, on condition that the amount of tho judgment bo paid within seven days, into Court to tho jjjdit of this action, there to abide Wftilthe further order of tho Court."