TOKOMAIRIRO DISTRICT COURT.

Bruce Herald, Volume XI, Issue 1079, 17 January 1879, Page 5

TOKOMAIRIRO DISTRICT COURT.

WEDNESDAY, JANUARY" 15. (Before His Honor, Judge Bathgati.) IN BE KXLGOUB'a INSOLVEyd. His Honor delivered judgment in the above case, as foliowt : — Alexander Kilgour, sod. proved on the estate* of the insolvents for ft debt due to him. Th«

trustee disallowed the proof by notice dated lli-h September, which was received by the creditor on the 16th September, and this decision of the Trastee has been appealed against. A preliminary objection has been taken that the appeal is too late, and that the machinery c f tae Court should have been set in motion within 14 days after the receipt of the Trustee'* notice by an application to the Court in terms of rule 41. There is no deubt that in ordinary circumstances suoh an objection would be fatal. It is the duty of %u appellant to prooeed within the time specified by law, and if he fail or neglect to do so, h« is held to hare acqnieseed in the Trustee's decisioa. But whilst rules are laid down for the guidance of creditors, which they cannot negleot, except at their peril, it does uot follow that the Court is ousted of all jurisdiction because proceedings have not been taken within 14 days. In all matters of eqaitablj jurisdiction the Court eught to take care that uo injustice is done by a literal adherence to rule. The words, regulating the time, are not negative and prohibitory. Circumstances may arise which require the Court in its discretion to relax or extend the rule so as to render substantial justice to all concerned. It has accordingly been held that a rule requir ing an act to be done within a specified time is not inflixible should there be special circumstances which render the application of it enequitable. In Hx part* Lovering re Jones (43 L. I. Banky. 94). 1/ I. Mellish while strongly insisting on the necessity and expedieicy of action being taken within the specified time, admits the possibility of an enlargement in exceptional circumstances. He said, " In my opinion, uuless there is some extraordinary c.iuse — what is called the act of God — illness or death, |or something on the part of the Landlord to pat the T-usbte off his guard — unless something of tbat kind happens — we ought not to allow tho time to be enlarged unless the application is made within 28 days." See also Williams on Buikrup cy 161. in the present case th« circumstances are exceptional and extraordinary, l'he Appellants solicitor gave the Trustee writteu notice of his intentiou to appeal within 14 <iays after the receipt of the Trustee's notioe, so that proceeding had actually been commenced within the time. He immediately instructed his Dunedin Correspondent to frame the aeceaaary summons. After receiving it and before he could apply to the Clerk of Court aa unprecedented and extraordinary flood in the Clutha ensuad, which submerged the borough ef Balclutha and contiuued for several weeks completely disorganising business of all kinds. The office of the appellants solicitor was uader water, and it was impossible to get at his paperi in his safe. During the flood, Mr Henderson, the appellants solicitor, saw the Trustee in a boat floating in the public street, and said he would not be able to proceed in tha matter of tbe appeal witbiu the proper time on account of the fl tods, when the Trustee very properly and consideratly |answered, that he would take no objection on the score of delay. Iu consequence of this conversation, and his documents being inaccessible, Mr Henderson did not proceed to take out the summons within 14 day*. There refined to be an understanding that in the face of the great calamity they had to contend with at the time, business of all kinds must be at A staud still. Tue minds of all were engrossed with tffjrfca to mitigate the ruin which had so unexpectedly overtaken the community. The Trustee's solicitor was made aware subsequently of the intention of the appellant to proceed by taking out an order for the attendance of witnesses, and no objection was offered by him. It appears that the objection of being too late was not made known to the appelJa.it until it was for the first time stated in court. lam of opinion tr.at in tbe exceptional and extraordinary circumstances alluded to the preliminary objection cannot equitably be sustained. What passed between the trustee and the appellants solicitor amounted to a waiver of all objection on the score of delay, and|,no limitation was giren, subsequently limiting or revoking the indulgence then granted, so as to put the appellant on his guard. I view the hearing now as having taken place by consent of parties. Although such consent had not been given, I would have viewed the great devastation consequent on§the flood paralyzing as it did tho ordinary course of transactions, as sufficient grouuds for extending he time ; the weight of authority, iu my opinion, resting such discretion in Court when necessary for the equitable administration of the statute. In a recent case re the Ambrose Lake Tin and. Copper Company (Limited), Taylor's case (April 17, 1878), it was held in the Court of Appeal. Taac circumstances and the fact that the respondent had never really been without notice of a boitajidm intention to appeal, constituted special circumstances, eutaihng the appellant to an extension of the time for appealing. On the merits lam satisfied, that although the trustee might naturally believe from the near relationship of the parties, that the claim was a suspicious one, yet there is no doubt that the insolvents were justly indebted to the appellant in the amount* aiatia as his own proper moneys, and I reverse the decision of the trustee accordingly, bat vs ithout costs.