SUPREME COURT.

Press, Volume XIII, Issue 1731, 26 September 1868, Page 2

SUPREME COURT.

Friday, September 25. {Before Mr Justice O-resson.] His Honor took his "seat in tho Court Chanibers at eleven, o'clock. Ik Bankbt/ptoy. be andrew thomson. •Mr Harper, applied for an order confirming the choice of trustee, and fixing a day for the lost examination and discbarge of the bankrupt. His Honor had been informed by the Registrar that an irregularity had occurred in the supervisors not haying proved at the time of their appointment. This did not appear to him to be a ground for not confirming the appointment of trustee, but the supervisors could do nothing until thoy had proved. The affidavit of Mr Orbell, one of the supervisors, was also improperly drawn up, as it did not state what the debt was incurred for, whereas it ought to state this specifically. Mr Nottidge, on behalf of Mr Orbell, ex- > plained that the affidavit had of necessity been hastily made ; but his client would, on returning from the country, file a fresh one. The order was made as applied for, Friday, die 13th November, being fixed on as'the day for the bankrupt's last examination, ■At a later period of the day Mr Harper asked if the Court would dispense with the bankrupt's attendance at the last examination, if affidavits were brought to show that tho creditors assented to this being done. The bankrupt wished to go to England at once. His Honor said the difficulty of acceding to such an application was thuft the Court would, to a ''certain extent, be preiudging the case; but if Mr Harper would point out any provisions of the' Act empowering the Court to 1 grant .the''application,'' he would consider the matter. ; ~ " eb jacob rams. On the apprehension of Mr Garrick, an order of adjudication was made; in : this case, and Saturday, October 3, .at twelve o'clock, fixedjas; the time for the meeting of creditors. BS JOHN BBOOK. In this case an application was to have been made by Mr Cottrell. for assessment of damnges. Mr W. Williams, who appeared on behalf of the bankrupt, hoped the application would not be made, si'nc'o if it was he should have to object to it, since no notice of the application had been given to his client, wifliou**, whose consent it could not be granted. Mr Cottrell felt that this ought to be done, and intended' to ask for au adjournment. He hid given notice to the trustee, but now sawthat notice should be given to alt parties concerned, bankruot, creditors, and trustee. He had suggested to the trustee, who consented to it, that a meeting ot creditors should be called. The case was adjourned until Friday next. BE THOMAS IUOGH. Mr Garrick, on behalf of the supervisor o f this estate, moved for a rule nisi calling upon .' the trustee to show cause why ha should not refund certain sums, amounting to £68 3s Id in all which ha has collected ou behalf of die i .state Tfte learned counsel stated that Mr « nankins, in discharge of hh duty as trustee, < h«d collected this cum ; but had retained it i in : liquidation of his own account ren- * dered for services es trustee, and moreover i m**ie out that there was still £2. 16s due to j him from the estate. The money had been 1 simplr frittered away ; and the charges made i by Mr Hankins were really solicitor s costs.

! The Registrar stated that these charges had been brought under his notice by the proTi aCco r urt te madcan order calling upon.he trustee on or before Tuesday next to show !„=« why he should not pay into Court Mir money admitted to have been received; aud £ the costs of this application. In Bavco. pavi3 v. simpson. This was an argument on demurrer. Dr Foster anpeared in support ot, and Mr Garrick to oppose the demurrer. j The mii-i question which the Court was a«kcd to decide was this—whether a creditor can ignore an order made by the Court sitting in bankruptcy, because it was obta.ned before the provisions of the Act were complied with ; or whether the order is to be considered binding upon all the creditors until annulled by order of the Court. In the present action, a deed of composition was made, which threo of the creditors did not sign, and one of these creditors seeks to recover £216 Is 3d on two promissory notes, on the ground that the order made by the Court under the 20th section of the Debtors aud Creditors Act, confirming the deed of composition, is void. Dr Foster argued that the order must be held as binding upon all the parties until set aside by the Court; and that the replication to the* demurrer only traversed immaterial U1 Mr Garrick, on the other band, contended that tho replication was a good one ; and that tho order could not be binding upon nonassenting creditors, inasmuch as the provisions of the sth section of the Debtors and Credrtor. Act, so far as regarded tho number and value of the creditors signing the deed, had not been complied with when the order was made ; thus rendering it vicious and therefore void. While admitting that an irregular order could not be set aside except by the Court, he • maintained that in the present cisc the order was void in itself, 88 the Court had no power to make it. His Honor reserved judgmont. WAIT! AKD OTHEBS V. MILES AND OT-lEUB. In this case Mr Duncan, on Tuesday last, ' obtained a rule nisi, calling upon the plaini tiffs (Miles and others) in the original action ', to show cause why the verdict should not be set aside and a new trial granted on the fol- ] lowing grounds : (1.) For the wrong admission of a certain wool security dated the 31st December, 1866, made between Major H. E Reader and the plaintiffs ; it not being set i out in plaintiff's declaration. (2.) For the I wrong rejection of the evidence of Mr H. P. Murray-Aynsley, made on behalf of defen- ; dants, (3.) For the wrong admission of the ; evidence of Mr T. M. Hassall to prove tho i possession by the plaintiffs of the wool in the declaration monbioned in behalf of the plain- ■ tiffs, and for the misdirection of his Honor ; I his Honor having directed the jury that there was evidence to go to them of the facts of the plaintiffs' possession and ownership of the said wool, and that his Honor the Judge wrongly refused to nonsuit the plaintiffs, on the ground, as defendants contended, that they had not proved a sufficient title as against 1 defendants to the will, and that there was no 3 evidence of the plaintiffs' title, to the wool to go to the jury, j Mr W. Williams, with Mr Harper, now appeared to show cause. " The first-named counsel argued that the • plaintiffs in the action had merely to prove possession against wrong doers, which the de- " fendants were not only primd facie, but aho 3 because they had failed in their pleas to show in ** any way that they were not so. ' His Honor considered the possession proved; • the whole question now turned upon the p construction of tho 76ch rule in conjunction with the 51st. Mr Williams contended that the rules did not require the document to be set out in the -* declaration, since it was only produced to " prove possession. With regard to the second 3 point, his Honor would find, on referring to [ his notes, that Mr. Aynsley was not, as j would appear from the manner in which the - ground of objection was stated, giving evidence r on behalf of the defendant, but that the Court prevented his learned friend asking Mr. Aynsley whether he knew there was a mortgigo upon the property in existence. He contended that his learned friend could not I put a question to the witness for the purpose f of setting up an adverse title to that of tho i plaintiffs.. i The learned counsel was proceeding to argue j upon the remaining grounds of tho rule, when Mr Duncan said he abandoned them, and i would rely only upon the.two first. Mr Duncan contended that under the 76th i rule the document should have been set out in the declaration, Bince it was the only thing ■ which showed the plaintiffs' title to the sheep, and was therefore the root of their claim. In support of the second ground of the rule, he maintained that he had a perfect right to test the. validity of the security by putting the question to Mr Aynsley. His. Honor remarked that if it were still likely'that tho case would go to the Court of Appeal, he wished it to go in as inexpensive a form as possible. ' Mr Duncan,said both sides had agreed that it should go. to the full court. . i The learned, Judge said it was very difficult to decido upon the construction of ride 76 in conjunction with rule 51: but although himind was not quite, free from doubt in the matter, ho saw no reason to alter his expressed opinion on it. It was a painful thing for him that the case wonld go to the Court of Appeal when he knew that the defendant's real defence had hot, owing to circumstances, been laid before him. Judgment would be * given on Tuesday next. i FEABON AND OTHEBS, CBEDITOES, V. SYMINGTON AND ANOTHEB. This case, which had stood over, came on for argument. Mr Harper was counsel for plaintiffs ; Mr W. Williams for defendants. The particulars, as stated in the special case, are these :—Messrs E. Scrivener and A. Knight, carrying on business together, made by deed dated the 14th October, 186*7, an assignment of all their real and personl estate to Mr E. W. Morrow and. Mr R. Symington on behalf of their creditors. The trusts of the deed arc that after tho payment of certain sums for commission, collection, Sic., the residue of the estate shall be divided amongst the creditors of the two partners rateably according to tho amount of their respective debts. The Court is asked to decide upon the construction of the deed. Mr Harper, who appeared for all the unsatisfied private creditors, contended that the deed was a final one'between'all the creditors, both distinct and separate, of the two partners, end that the general tenor of the deed shows the intention of its makers to have been, that the joint estate should bo divided amongst the joint creditors and. the separate estates amongst the separate creditors. This was tho opinion of his clients as to the intention of the parties, but they wished to leave tho matter to the decision of the Court. He would, however, point out that the deed ought to be construed in the moat favorable manner possible ; as if it was construed to bo an absolute assignment of the joint estates for the benefit of the joint creditors, the separate creditors who had not signed it would be very seiioualy irjurod. Mr W.Williams, who appeared on behalf of the trustee representing the business creditors, said he wished to leave the construction of the deed entirely in the hands of tht Court; but his clients were of opinion that its strict interpretation was that the estate s!)Oti!_ bo. divided amongst the joint creditors ulone. A great difficulty consisted in the words "Knight and Co."-'occurring in the recital, which would seem to* make the deed an absolute of tho whole of i tho property of ihe persons composing i the firm of Knight and Co. i to two | other persons for the benefit of those who signed the deed, who, on the conditiou of their doing so, ugreed to release Knight and Co. * from their debts. Should tho condition of 1 absolute assignment not bo carried out, the release would al*o not bo effectual. It cp- ( peared to him that tha only course open to his learned friend was to get tho deed set aside. . The Court reserved judgment; 1

LATEST TELEGRAMS [By Interprovincial Telegraph *] Welmnotox, Sept. 24, 7.45p m _ Messrs Iravers and Hall Kpo | c ," mght in tho <• Alcrtn " debate It * doubtful whether it will closo to* morrow. Tho Opposition is confident, and tha' supporters of tho Government fear that it will be decided by the casting vote of the Speaker. ° Mr Stafford stated to-day that lie had received a letter from a settlor : named Jenkins, stating that a num. ' ber of natives came to his house at Wnikanrte, near Otaki, last night, and : demanded his two daughters* threat- , eriiug to burn tho house in the event >of a refusal. The natives burnt a » whare adjoining. Jenkins ia an old [ settler, residing on land belonging to \ hia grown-up half-caste children , through their late Maori mother. ' The Euabiuo not having arrived * the Northern and Southern steamer. ■ have left. | Wellington, September 25, 8 p.m. Last night, Major Atkinson, H. si I Harrison, and Heaphy spoko for, and t Messrs Carlton, Jollie, and Wilson * against Mr McLean's resolution. J.[ r ' Wilson moved, as an amendment— 5 " That the condition of the Northern t Island requires that an efficient forco *of constabulary organised after tho f\ : Irish model should be embodied for a■*/ | definite period." To-day £30,000 r further imprest supply was granted, r The Westland County Bill was read a second time. The discussion will take place on going into committee. C. D. K. Ward has been gazetted a , judge of the Supreme Court, and leaves ' for Otago to-morrow. 1 Dr Evans was buried to-day. Tlio . House adjourned during tho funeral. | We hear from Wanganui that on t the 20th, McDonnell with a email force went out to attack Tito Kowam b at his entrenched position at Taiporehenui, but found it evacuated. Col. ■ Haultain has ordered all posts except s Manawapou aud Patea to bo aban--5 doued. The " Times " says that a ' district in which settlers have Bpent . some hundreds, and others thousands, 5 for land, houses, fences, cultivation, 5 &c, thus falls uudisputed into Tito 1 Kowharu's hands. Tbe Kupapas aro r returning to Wanganui.