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1 correction by aobrienaus - Show corrections


_*_ I

SUPREME COURT.-Wednesday, May 8.

In Banco.-{Before their Honors the Chief Justiob, Mr. Jtutice Windeyer, and Mr. Juttice Foster.)



Mr G II Reid instructed by Mr H. S William«, | appeared for Alfred Mason tho trustee of the estate of ' Cyrus Edgar Fuller, and moved to set aside an order by the Jude.e m Bunkruutcv declaring Fuller a partner of

a bankrupt named John Henry W ordswortb Mr j A H Simpson and Mr Gordon instructed bv Mr E A ISimth appea-cd for Mr I T Lloyd, m tbe estate of J II \\ ords» orth, to show caso It appoared from tho statement made bv c mn-,ol for appellant that from 18So till lbSS A\ < rd»worth carried on bu-iness at P ir ramatta as a grocer and about the middle of 1888 ins estate was sequestrated upon his own petition >oino time aftorvvnrds Mr llovd the iflicial assignee in

Wordsworth's estato moved to have a declaration , mado by tho Judgo in Bankruptcy that Cyrus 1 dgar fuller, whone name did not appear in connec

tion With the bankrupt's business, was a partner with Wordsworth On the 6th July last his Hi nor the Judge in Bankruptt) declared Cv rus Ldgar t uller to bo a partner with tho bankrupt in tbe lattor's business nt Parramatta and luiblo for tho debt* con- tra tod for effeitivelv carr} ing on tbe busmen» Ino matter was also referred lo the Registrar in Bank-

ruptcy to asertain the debts due and 1 ulU" vws ordered, upon su h amount being ascertained, to p-y it into court to the credit of the bankr ptcy estate Sinco the declaration »as made Fuller had becoruo in- solvent, Allred Ma>on being appointed trustee of his estate and be appealed against the order < n the follow- ing grounds -1 that his Honor had no jurisdiction lo moko a partnership order upon the motion b. fore the Court, and ought to hav a so decided upon a preliminary objection taken to that effect first because the provi-

sions of »ection 130 of the Bankruptcy Act do not extend to a case like the present, secondly, because the Çrocedure adopted was nor, the procedure 2

hat his Honor had no juncdiction to order tho pay- ment by the Bald Cvrus Edknr 1-uUer oi the above debts 3 That his Honor ought to have ruled as he «as requested to do, that the motion ma in- formal and bad, several distinct and independent matter* being included therein, the one as an

alternative to the other, or should not have proceeded to deal with all the matters embraced m 'ho said motion as if the motion was regular in form the same not being regular in form, for the reasons above stated 4 lhat his Honor was wrong in holding a partnership to have existed between the respondent and John Henry Wordsworth in respect of tho business carried on by the said John Henrj Wordsworth in Parramatta, the fact« 6howmg that the true Bmin¡,omrEt b tween the parties was not, and «as never intended to be, a part- nership m business, being on tbe coutrurv an arrange- ment merelv for the endorsement of the bankrupt's bills by the respondent for a cons deration to be paid by the banitrupt to the respondent

Mr Roid pointed out that the motion before the Jndge in Bankruptcv upon which the order was made included two things-first, that Fuller should be de- clared a partner, or that in the alternative, if he were not declared a partner, a certain bill of salo be-

tween Fuller and Wordsworth should be dealt with in a partici lar way Ho contended that tho two thines should not have been in- cluded in one motion, and especnillj one as an alternative of the other. It was hold that by sub- section 4 of section 130, the Judge had jurisdiction to deal with a matter of this sort to declare a person, not m the bankruptcy, ft partner and liable for the debts Ho contended that the words did not give such j uns diction, and the mere fact oi an individual creditor having sued I uller in that court to recovera cert un sum did not mako him a partner The contention realb was that if the Judge in Bankruptcy had jurisdiction to do what he had done in this case, an official assignee or a trustee, under tho words of sub-section 4 of sec- tion 130, could, by motion which might be made on afiidavit, bring into question any deed or any right of a person to an> propcrtv and drag him and his rights into the jurisdiction of tbe Bankruptcy Court He could understand power being given to make such a motion in cases where the otlkial asM^neo claimed that respondent had, as a matter of fact, some property in Ins possesaion belonging to the estate or where respon- dent had rcceiv ed pav ment from an insolv ent under cir- cumstances which mi^ht bo a fraudulent pa}mont and which should bo recovered , but ho submitted that the Juago bad no jurisdiction to make this order against a person who was a stronger to the bankruptcy

lhe Chief Justick said that tho Court did not re- quire to .hear counsel for the official assignee. It occurred to the Court that the 130th section of the Act would be rendered completely nugatory if such a posi- tion as that contended lor bv Mr Reid were to prevail

1 bo 130th section ot our Act, which was the same as section 102, sub-section 1, of tbo English Act, was in these terms -"Tho Judge in Bankruptcy shall, tor the purposes of such jurisdiction in bankruptcy have full powers to decide all questions of priorities and all questions whatsoever, whether at law oi in cquit), or of fact in any case of bankruptcy coming within the cognisance of such Judge, or which he maj deem expedient or necessary to decido for the purpose ot doing complete justice or makingcompleto distribution of property in any suuh caao." He stopped lhere to inquire if tins was nota matter in which the Judge might neem it necessarj to make this order, not onlv for the purpose of doinz complete justice between the parties, but also of making a complete distribution of the assets of this estate, being tho partnership in the propertj Cont- ine: to the 4th sub-section of section 130. which wbb not to be found in the English Act, the terms wore as follows -" Whenever the official assignee or trustee claims anv property as part of the bankrupt's estate, or claims any right against any person, whether such person is or is not a j.artv to the bankruptcy, the Judge muy upon motion of the assignee or tr stce of any person interested in such property, hear and determine, either upon aifidav it or oral evidence, or both upon affidavit or oral evidence, the question raised by such claim, and make such older thereupon as he mar deem expedient or necessary, for the doing of complete justice betuopn all the patties interested," &c Well, here the ofbcial assignee did claim his right against Fuller, that he should be de- clared a partner m such estate whether he was or was not a party to the bankruptcy It Bcenied to bim that this sub-section was introduced for the express purpose of gotting rid of the doubts which had been raised bv Mr Justice Kay in the cave in re Lowcnthall, and which had been expressed by eenuin other distinguished Judges in other cases Then enme the 6th sub-clause, which was also not to be found in the English Act

" The Judge (-ball have tbe same power of giving relief to any party interexted in any maller or proceeding before bun und. r this Act, as the Court would have if such matter or proceeding were pending before it in either its common law or equitable j i risdtction " Ho pointed out this section as an answer to Mr Reid's I contention about the inconvenience of allowing the ofli I cial assignee to recover fheBe monev s from 1 ullei, and I alao giving the creditors the right of suing I uller for [ the full amount lhat section would give the Bank | ruptcy Court the power to erant an injunction to restrain

anv creditor from suing 1 uller for the monev s which be bad already paid into the Bankruptcv Court in obedience to the order of the Judge lhe Court were of opinion that there was on "\presa power given to the Judire m Bankruptcy to deal with such matters as be might think necessary for the due and complete distri- bution of the estate, and that being so, they thought the liid,ment of his Honor in the Court bolow was right It was stated as another objec- tion that the Judge ought not to have enter- tained the motion at all because it asked for two distinct things, and that one poition of the motion which his Honor did not deal with was that a certain bill of sale should, as an alternative, be dealt with in a particular manner If they wero fo ¡rive eff ct to such an argument, the result would, bo that they would have to overrule the Judge's order nnd send it down again to the Court below. In that case the official asBignee would have to take out a fr»sh motion after incurring tho«o costs and that an order which the Judge held he was entitled to have would be set aside merely because of some technical defect in the notice of motion He was not at all prepared to eav that it was a technical defect, but if there was, the lolst section of the Bankruptcy Act got nd of that Mr Justice Windeyer was of opinion that it was tho proper wav to frame the motion, and he had no doubt his Honor was right But be thut as it might, it formed no part of the order appealed against, and if the Court gave effect to it it would simv'y end in disastrous costs to be paid by somebody oi othi r

Appeal dismissed with costs.



Mr Pilcher, Q C , said that a motion for continuing j an interlocutory injunction in the above matter was decided by the Court in Equity yesterday against plaintiff, who had filed notice of appeal, but that notice did not affect the common-law judgment which had been signed by defendants, and to set aside which proceedings had been taken in Equity The Primary Judge having refused to continne tbe injunction, the defendants had intimated that they intend*d to proceed upon their judgment, and, unless the Court ordered a stav of proceeding», execution »ould go before the notice of appeal could be submitted

The Chief Justice said he did not think the Court had power to grant a stay of proceedings under the cir- cumstances but they would take the appeal on the following day, and if it was necessary that appellant should give security for costs, he muot do so




Mr C B Stephen and Mr O'Connor, instructed by Messrs Want, Johnson, and Co, appeared for the appellants, the Union Bank of Australia, and Mr. C J Manning and Mr Gordon, instructed by Mr E A Smith, for Mr I T Llojd, 1 tho official assignee m the estate of Messrs D and \V Roberton, to show cause This w as an appeal by the Lmon Bank against an order made by Mr Justice Deffel , Judge in Bankruptcy, on the 7th March last setting aside a mortgage over certain pro- perty dated 24th March, 1887, between the bankrupts and the Onion Bank, an agreement of tbo same date, a

mortgage on the ship I lilian, nl»o of tho same date, and a bill of salo of 13th January, 1888, over certain effects and machinen, on tho grounds that they were prof rencos to the bauk over tho genoral bodv of creditors, and also that tliev woro made at a time when D and W linbortson «ero insolvont The securi- ties given to the ba k »ero gneu to cover past and future ndv anees 1 ho bank apt e lied against the de- cision of the Judco in Bankruptcv mainly on tho I ground» that D and W Robertson «ero not miolvent

at the time the securities were given, and that, as a matter of law, thu law as to preferunco d d not

l exist in regard to this matter It was contended | I by Mr. Stophf n that the law under the now llank ' ruptcv Act was different to tho law which it re-

placed, and that the transactions with tho bunk «ero protected the law now being assimilated to tbo lnglish lan, and tho old law of preforonco being got rid of The point was not argued before Mr Justice Dcifell, becaueo on a previous occasion his Honor had expressed an opinion that all " proceodings pending" app led to, and covered all proceeding» in insolve ey, and a» there was uo doubt that tho insolvency had taken place at a subsequent date to tho pa» ing of the Amending Bankruptcy Act thov wore not able to argue the point 1 ho amount in mutest w as £11,000.

The arguments were not concluded »han the Court


In Equity -(.Before hu JTonoi the Chief Judge in

Equity, M) Jutltc Oven )


Dr Coghlan, instructed by Mr Blackmore, appeared for the plaintiff, James Channon, and Mr H. E Cohen, instructed by Mr Greenwood, for the defend- ants, George Barr and Fliza, his wife

Ibis was a suit brought b) Jamos Channon, photo- grapher, to obtain a deer« e requiring tbe defendants to specifically perform a certain agreement relative to tho lease of a certain portion of premises formerly known as the Hay market Arcade and more recently converted into a music hall The plaintiff wa» the lessee of a portion of the Haymarket Arcado for two years (with the option of renewal) and »as to pay rent for tho firut j ear at the rate of £i> 10s per week, and during the remaindor of the term at £8 per week 1 be agree- ment relating to the lesso was made on August -3rd, 1887, but the defendants being subsequently desirous of converting the arcade into a inusio hall thev agieed, on condition that Channon surrendered certain ri"hts and allowed them to make certain alteration», to reduce the rent payable bv him bv £3 por »eek. An informal agree meut was drawn up between the parties embody ing the understanding » nich it wub alleged was arrived at by the jnrtios bul before the formal agreement was executed a dispute arose between the partie» hence tins action i he object ot thoBO proceedings »as to compel the defendants to Bpecibcally perform tho con- dition» embodied in the informal np-roiment The plaintiff claimed that, under the informal agreement entered mfo in tho month of September la*t he was entitled to the sole right to caterer supply refreshments, fruit confectioner}, ind such other things (including tobneco, cigars, £c S as aro generally used in connection

with a reiresliment room attached te a music hall or

thiatre Ihe principal point at isfiio was whether, under the informal agreement, the plaintiff was or was not entitled to tho right to sell re- freshments in connection with the music hall

1 he defendant* alleged that the condition just set out wa« added to the informal agreement by Channon without their consent and that thev had declared that thev »ould not consent to plaintiff banng the solo right to sell or supply refreshment» inaide the music


After some evidence had been taken, the parties agreed that what was intended was that plaintiff should hav e the solo tight to cater in the vestíbulo of the music hall out not to have tho nght to enter the ball

to sell refreshments

His lloNOH granted the plaintiff a decree for spec fio performance of the informal agreement, tho 7th clause of which provides-' That the said James Channon shall bay« the sole right to cater and supply tobacco, cigars, tefrchmonts, fruit, confeo tionery and similar good» generally used and sold In connection with music-halls and theatres, but he should not bave the right to enter the said hall for the purpose of vending any »uoh gooda "

No order waa made as to costs


Mr C J M inning with Mr Gordon, instructed by Messrs Slatter) and Heydon appeared for the plaintiff

and Mr Walkci instructed by Mr Matheson for the defendants This was a motion for an injunction The defendants, Chvo Smith and G M Matheson, were Btock and share bnkers carrvine on buainoss in the citv and as mch thoj had been cmplnved b> the plaintiff A R Winckler to do business for him In September 18S«, the defendants pur- chased a number of Fhares in the Sunny Cornel Silver mining Companv, which shares woro either held by them in their own names, or in the names of c erks in their emplov On the 6th September the plaintiff upon défendants' representations bought 1000 shares in the Sunnv Corner Mining Compony at £3 per share and he gave in payment two prom «snrv notes for £1 )01 lös fad The shares loean to fall and plainliff secured other 600 shares nt £2 10s , riving two promissory notes for £H7o The fiist two notes beramo due on December 12th, 18S8 Ho renewed them bv paying defendant iiOO and £76 7s respec- tively m cash, and giving two promissory notes for £l2ol 10s 6d Subsequently he discovered that the represent, tions made bj the defendants when he pur-

chased the shares were untrue and as there had never I been anv, transfer of the shares to him plaintiff | lefused to pay the amount of the second pair of pro miBSory notes £l37o, when they becsmo due The defendants con menced an action against plaintiff at

con mon law to recover the Bmounts of the»e notes and at tho same time a second action waa instituted by Phil îp Sheridan, and Bensnsan (a director in the mining companv ) to r-vovor the amounts of the first prowissor) notes whi h it was alleged had bren passed to them by the defendants Platntiff asked the Court to set aside the two contracts and to order the defen- dants to deliver up for cancellation the promissory notes for £1376, and to refund the sums of £i00 and £76 7s paid to them He funher asked that the de fondants might be ordered to pay him £1211108 bd , his liability to Sheridan and Bensusan as holders of the two promissory notes or to in iemnify hun from all liability incurred on account thereof and further, that the defendants misht befrostrained by injuncti n from further prosecuting their action against him at

common law

The defenco was a general denial of the allegations in the st itement of claim

His Honou who reserved his decision in this case from the 26th of March last, made an order last Triday dismissing the suit without costs plaintiff to fully nnd entirely withdraw all imputations and allegations of fraud and misrepresentation against the defendants or

either of them

In Chambas -(Jtefore hi» Honor Mr Justice


i>. ne OEM , O'H, &0

Mr Cohen applied for on order upon W Welsh solicitor, chiverton directing him to allow inspi ction of certain deeds in his position at Silverton, and over

which he claimed a hen for co«ts

His Hon ok mado an order for the inspection of the

documents at Silverton

In Ecclesiastical Jurisdiction -(B«fore Au Sonor

Mr Justice Owen )


Letters of administration were granted in respect to the eBtotes of Honrv James Panell, £6g9 John Byrne, £87o, John Daniel Barclay, £1388 Mary ümilv narria, £1SS William Francis O'Uvrne, £200, John O'Neill, £40J, William Henderson, £398


Probate was granted in respect to the estates of William John Norvvord £1090 David Mvers £»601

Is-ao Greer £316t Sirah Turnor. £1000 Edward Holmes, £21o, Elizabeth Frost, £309, Richard Cocks,


In Banlruptcy -ißtfme Ais Honor Mr Justice

Depfell )


Re Robprt Evans The banKrupt in the course of examination bj Mr E M (stephen official asuirnee deposed that for the lnst 10 vears he had carried on business in buving and selling land ho called his creditors together on April 29, 1888, and they then agreea to give him time to piy 6h in the £ caih and the balance of his indebtedness by promissory notes nt 2 4, and 6 months in order to pay that cash be borrowed £260 and he git £12o0 from Mr Wilson on promissory notes vvitnca also had £600 cish to enable him to pay his creditors he got £250 from Mr. J G Griffin £2o0 from Mr J G Cuzon £2i0 from Mr W Murray, £2o0 from Mr T T Gray, and £2o0 from Mr Alfred Shaw, those sums were obtained on promissory notes, which Mr Wilson of the Mercantile Bank discounted, at that time witness had several other promissory notes running the bills had not been met, Borne of the gentlemen who gave bim the promissory notea were creditors in his estate the first batch of composition notes nore dishonoured, but wero mot after his arrival from Melbourne after the dishonour of the note» he still went on with his business he about the beginning of October, 1888, borrowed cash from Mr Knight (after the dishonour of the notes), and from Mr Elliott in December 1888 about the time of the composition he borrowed £100 from Darley, at the time of making the composition witness owed Mr Woods £o00 on current notes, at that time Mr R M Pitt also held current promissory notea To his Honor Witness was

the owner of the Manly Aquarium, it was built by i witness and Mr Griffin To Mr Stephen Witness ' tried to float the Aquarium into a company, but did

not succeed about December, 1888, witness bought ' a hilliard table for the Club at Manly, and as i they would not tako it, be sold it be sold shares and paid ( the money he received for them into the bank he ought to have paid that money into a trust account he seid Mrs George Evans (his mother) a piece of land, witness and Mr Griffin agreed to start the Manly Aquarium witness had £250 and Mr Griffin put in £2o0, they started to build, the money being found by witness.dis ounting bills witness supplied timber to the extent of £1300, the E , S , and A C Bank aereed to allow witness and Griffin to overdraw to the extent of £8000 about November, 1SS7, witness made in

arrangement with Mr. Griffin that witness should tak* over the »hole of the liabilities of the aquarium ven- ture, it was also arranged that Griffin should lodge with Mr Wilson, of thu M ercantile Bank, in trust, two bills of £i00 each, at 12 and l8 months, such bills not to

be negotiated until witnesa had relieved him of all | liabilitv, thev were to be given up when <vitnoss re- i lievcd Mr Griffin of all liability, the bill» had matured ' but thev had not betu given up, wituos» had not re-

lieved Mr Gutfin of all liability, since the agreement I wa» entered into Mr Grillan had not taken any part in | the management of tho aquarium , «knee« had a can

tract with the Ophir Deep Lead Min» (Tasmauia) to i place machinerv on their ground .he had placed that m cbineiy on their ground, and £400 was st iii due in respect of the machinery to the ow ners, » itness still owed cunningham £100. and he owed Salisbury of

Launceston £300

Ko tt îllium Hams The public examination of this bankrurt was adjourned to tho 22nd instant

Re Tnomas Steelo Donald. The publio examination of this bankrupt was adjourned to tho 22nd instant.


Re David Barnett r Andrew ¡samuel Bayliss, credi- tor's petition His Honor made an order sequestrating tho estate of the respondent, appointed Mr. Lloyd oflicial assignee, and declared the date of bankruptcy to be April 19


Francis Picard, of No 80, Elizabeth-street, restau- rant sr 1 wine-shop keeper. Mr A Morris, official


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