SUPREME COURT.

Lyttelton Times, Volume XXX, Issue 2467, 18 November 1868, Page 2

SUPREME COURT.

TUBSDAt, Nov. 17. (Before Mr Justice Gresson.) His Honor sat in the Court Chambers at 11 o'clock this morning. BE GBOBQE MACFABLAN, DECEASED. Mr Harper applied for an order for leave to issue probate to the executor named in the will. His Honor made the order as prayed. Ik Bankbottct. BB JAHEB JOHNSTON. The bankrupt,,in person, applied for an order confirming the choice of trustee, and fixing a day for last examination and discharge. ,; His Honor made the order as prayed, and ■fixed the last examination for Thursday, the 7th January, 1869. BE NATEANrEL SELLA!!. The bankrupt, in person, applied for an order of adjudication and meeting of creditors. His Honor made the order as prayed, and fixed the meeting of creditors for Wednesday, the 25th Nov,, at 11 o'clock.

BE WILLIAM COCKERILL BEBWICK. . Mr Cowlishaw applied for an order of adjudication and meeting of creditors. He was anxious that the meeting of creditors should take place at Timaru. His Honor made the order as prayed, and fixed the meeting of creditors to take place at Timaru on Saturday, the 28th Nov., at the Assembly Rooms.

RE ALEXANDER CHARLES HILLS. Mr Cowlishaw' applied for an order oonfirming the appointment of trustee and fixing a day for last examination and disoharge. His Honor made the order, and fixed the last examination for Thursday, the 10th of December.

RB WILLIAM THOHAB BAUOH. This matter was set down for further consideration and judgment upon application as to the trustee's charges and payment of the money collected into Court. Mr Cowlishaw appeared on behalf of Mr Deacon, one of the supervisors, and informed the Court that the accounts of the old trustee had been referred to the Registrar for taxation, and the result was that a considerable sum was taken off.

I Mr Wynn Williams, who appeared for the 'trustee(Mr J. H. Hanking) said there had been a meeting of creditors Bince the referring "to'accounts to the Registrar for taxation. All the creditors were present, except Mr Deacon, and they had agreed to allow Mr Hankins all the sums specified in his account, with the exception of j67. Mr Cowliahaw said that the meeting of creditors to which his learned friend alluded was irregular. Mr Deacon received a note on the Wednesday, stating that such a meeting would be held on the following day, ami he was obliged to write back and eay that a piior engagement rendered it necessary that he should proceed to Rangiora on the Thar,, day. The Act required that seven days' notice of the meeting should be given His Honor said,; that under the circumstances, it would, perhaps, be as well to adni^^Theßegirtrar'staxationC K??. ,Mi he P6rCeiTed tliat tlie 8U » of *34 as 2d had been struck oft the trustee's account. Had all the creditors, excepuK Deacon, agreed to allow the trustee all his claim with the exception of £7 ? Mr Williams replied in the affirmative. He had got the document signed. , His Honor asked Mr Cowlishaw if he was Ml a position to know, what Mr Deacon's feelings were in the matter. % Mr Cowlishaw said he was not. The meeting of creditors would have to be subject to the approval of the Registrar., The creditors could not make any 1 award without his consent: ■ ■ ■

[1I» Honor laid that under ordinary c\, cumstances the Court would approve Z the creditors approved, so far as remuiieri tion was concerned. There were other item, besides remuneration in this case. s M .tj„ abstractly, and without reference to thfi particular matter, hii feeling was, that if tfe! creditors as a body were disposed to allow charges even outside the mark, the (W would not object, the principle of the Bant ruptcy Acts being to Icare the administration of estates as much as possible in the hinds Z the cred.tors themselves. It appeared that Mr Deacon was a dissenting creditor, and i would be as well to ascertain whether!, agreed with the decision of the other eredi tors before making any order. If he did Z agree, then the Court would hare to exercis. its judgment as to the various items. The case was ordered to stand over until Friday next, "' In Banco. hirehaia modtb and hoani tiharb v. THb QOBBN. This case was stt down to shew came whv the writ of error should not be set aside Mr Wynn Williams, for defendant in formed the Court that Dr Foster w a 'j in fltructed to shew cause, but had lift town on" the understanding that the case would not be set down for argument until Friday He had therefore to apply to the Court for an adjournment.

His Honor ordered the case to stand over until Friday neit. I OLLESTON V. HABOmVIS AW> ANOIBBR Mr Wynn Williams, for plaintiff, stated that he ought to have withdrawn the cue. but he had not been in time to do so. A mutual arrangement was in course of n'egociation, and he would now ask the Court to allow the case to stand over for a month. His Honor acceded to the application. MILES AND OTHKKS V. WAITI AND OTHBSS. Mr Harper said he had referred to the Weilington papers, and found that the judgment of the Court of Appeal in this case was not given fully. He would therefore ask his Honor, if he was in possession of the written judgment, to oblige him by reading it over, or permit him to see it.

His Honor: It waiamost elaborate judgment, and the judges hain't it finally prepaid until the morning when it was delivered. In effect, the deciiion was exactly what I stated that my decision would hare been only for the reportof the Commissioners—that is, that the 76th rule should bi read its in the pleading. Tou will recollect I said that was the construction I thought it sbosld bear ; and the judges held that this was the true construction of that rule, and the judgment upon the point is a most elaborate one. Then they held that what I found«d my decision in Banco on could not be a ground. You may recollect I founded it mainly on the passage in the report of the Commissioners, and the judges said that it would be a dangerous thing to rely on * contemporaneous passage in the report, hecause it might interfere with the rule, that you could not construe a written instrument by the intention of the party expressed at the time, and thereby let in parol evidence. Therefore, the Court of Appeal could not allow that, whatever might lie the construction of the report. The question turned also in this particular case upon " The Wool and Oil Securities Act," which says that property " shall be deemed in possession," and soon, The broad principle on which the decision rested was what I stated below, that it appeared to me the fact to be proved was the being in possession, which, as it might not he proved aliunde as it turned out, you wanted the wool and oil security to make out to the satifaction of the jury. The decision of the Court of Appeal, was, in effect, verv much in accordance with the opinion expressed by the Court below. Indeed, the judgment goes the length of saying that the Court below was right.

Mr Harper enquired when it was likely that the reports of the cases would reach Christchurch. •

His Honor said that some delay would necessarily occur. The correcting of the reports before publication in the Gwttt were undertaken by Judge Johnston. Mr Harper said that the reports of the cases in the Wellington papers did not appear at length.

His Honor said they reported very badly in Wellington. He thought the judgments to Miles and Waitt, and Rhodes and Robinson would both be most Talnable. .The Court then rose.