SUPREME COURT.—IN BANCO. Monday, March 28. (Before his Honor Sir G. A. Arney, Chief Justice.)

Daily Southern Cross, Volume XXVI, Issue 3931, 29 March 1870, Page 4

SUPREME COURT.—IN BANCO. Monday, March 28. (Before his Honor Sir G. A. Arney, Chief Justice.)

ALLEGED IRREGULARITY A3 TO A DEED OF ARRANGEMENT. John Grey. — Mr. W, W. Wilson said that recently an application "was made foy a declaration of the oomplote execution of a deed of arrangement ; and a decoration was granted. He now moved, on behalf of Mr. 6. W. Owen, one of the trustees under the deed, for a summons to the arranging debtor, under the 269fch section of the Act of 1867, to appear and Le examined respecting certain acbs and things relating to the deed, as set forth iv affidavits already filed, and to show cause why the declaration of complete execution should not be set aside, rescinded, or cancelled ; or, under the 275 th section, why the deed should not be declared void, so far as any release to the debtor was concerned. There was an affidavit by Mr. Owen that he was a creditor, and that, except as a trustee, he had not executed the deed, or assented to it in writing or otherwise ; that he had not had notice of the intention to apply to the Court for a declaration, except th-3 Gazette notice, which was published only on the day before the making of the application ; that he believed that if the creditors were to prove, as under a bankruptcy, it would appear that the deed was not duly executed ; tha£ there had been no certificate by the trustees of due execution submitted to the Court ; and that the proceedings had been irregular, -with, as the deponent believed, a view to secreay. Prior to the application for the declaration, therawas filed an affidavit by' the arranging debtor to the effect that all his creditors, except two, had executed the deed, and that to each of those two there had been given special notice of the intended application ; but Owen was not one of the two so referred to, and he had not had notice. He ,(Mr. Wilson) also moved upon an affidavit "by himself to this effect : — That the total liabilities of the arranging debtor, as set,' out, were £840 18s. 4d., George William Owen being stated as a creditor for ' £112 13s. 9d. ; that he had searched the whole of the proceedings as filed in this case, and found that Owen had not executed the deed of arrangement nor assented to it in writing ; that the total amount of the debts to those who had signed the deed was £526 9s. 3d., being £104 9a. less than the three-fourths in value required by the Act. The Chief Justice : Does that last fact appear on the face of the proceedings ? Mr. Wilson : Yes, your Honor. The Chief Justice : It but shows that it was my duty to have reckoned the proportion when the documents were before me, which I do not consider to be generally necessary. Mr. Wilson apprehended that the Court had been misled. There was no certificate by the trustees or by two creditors of the due execution of the deed. The Chiet Justice remembered that he was at the time struck by the detailed proofs which appeared to be supplied in lieu of the certificate. The 268 th section of the Act was very strong against the disturbance of such a deed when once a declaration of complete execution had been granted. It was not to be liable to be disturbed by reason of any previous or subsequent act of the bankrupt. He (the Chief Justice) supposed that it was a different matter if the Court had been imposed upon. Mr. Wilson : If the declaration has been obtained through fraud or misrepresentation practised upon the Court, the declaration will not stand. The Chief Justice : I apprehend ib would be doubtful whether a trick played upon a creditor would affect the declaration; but the Court itself cannot dispense with compliance with the statute. You say that the statute has not been complied with, the Court having been misled. A summons, returnable on Wednesday next, was granted. DISPUJ'K AS TO AN ARBITRATION. Cadell v. O'Keeffe. — This was an action upon an award, the plaintiff claiming to recover • 531 2s. 7t1., and- the defendant pleading in addition to a general denial, an equitable plea, raising the questions of notice, acquiescence, &c. Upon the pleadings, 19 issues were stated ; and the findings upon them were published in detail last week, when the action was tried. Mr. Rees now moved, upon the findings, to enter judgment for the defendant. He relied upon the findings on the fifth, the eleventh, and the eighteenth issues. The fifth was — Did Cochrane, before making the award, appoint time and place for hearing the defendant, hia witnesses, or proofs, touching the matters alleged to have been referred, or for proceeding with the reference? and the jury replied, "He appointed place, but not time. " It was submitted that an award founded upon proceedings as to which no notice of time for carrying them on had been given to one of the parties, could nqt stand. The evidence clearly supported the finding on the fifth issue. The plaintiff, to enable himself to take the fruits of any "verdict, must satisfy the Court that there was a. complete and strong chain of evidence in his favour ; and this want of proof of notice as to time of proceeding, was the absence of a material link from such a chain. If the submission had been made a rule of Court in this case, and the defeudant had been moving to set aside the award, it would have been necessary for him to have established some one or more of the propositions that went to the jury as issues ; and, having done that, it was sxibmitted the defendant would have been entitled to succeed. Upon the three issues now mentioned, it was contended that such propositions were established. In fact, the three findings taken together amounted substantially to a verdict for the, defendant. But for the finding upon the last (or nineteenth) issue, of a siim due, the defendant would now have , had very little difficulty to contend with ; for he would have said, "Although the jury has found certain things to have, been done by the plaintiff and the arbitrator, they as distinctly find that certain things were left undone by the arbitrator, which makes the award null." The eleventh issue was, Did Cochrane make the award without notice to the defendant? aisd the jury found, "He did." Taken in connection with the eighteenth issue, the position of the defendant was very strong, for it appeared that, although, there was a submission and a commencement of proceedings, all that followed wa3 a nullity. , The Chief Justice thought at first that proof of no notice of intention to make the award would be a strong ground for the defendant claiming the verdict. But he believed that his direction to the jurj ' was the correct one : that the arbitrator" was [ not bound to give notice of intention to make his award, if he had proceeded with the reference, and given notice that it was concluded. He thought the two were to be | taken as one thing. Mr. Rees submitted that notice merely of an. intention to close the reference — or a threat to do so — was not enough. The Chief Justice : The jury having found that the defendant acquiesced in the making of the award, that difficulty would be cured. j Mr. Rees : The jury found, in effect, that the defendant, not knowing the mode of the arbitrator's proceedings, acquiesced in those proceedings. How can a man acquiesce in a thing of which he had no knowledge whatever? '- ' The Chief Justice : One must suppose the jury concluded that the defendant had let the whole thing take its chance ; that Cochrane was right) when he said he felt lie was being made a, fool of j and if that were so, it is too late, when the award has been made, for the defendant to exclaim, "Oh! but I've had.no notice of what you have been doing." If there was a motion to r set aside an awardj and it was shown that thn jiarty moving had allowed the thing %o go on for months-^— tiad handed over books, and papers — I' should ;fchin]£ r he would not 'be entitled ! s to iake advantage of his genera. J neglect.' The defendant appears to' haye iillowed every- , thing 'to "$0 On as the' arbitrator cliose,- wink-

ing at what lawyers would call irregularities ; and I think it is now too late to attempt to apply th« same striot rules that would have been applied in an arbitration carried on by a barrister, under a submission which had been made a rule of Court. Mr. Rees ; The evidence was very strong, that the defendant had not the opportunity of seeing or examining the accounts of the plaintiff. The Ohief Justice : But the jury find, on the seventeenth issue, that it was by the wilful neglect of the defendant only, that he had no opportunity of observing upon and examining the witnesses and proofs of the plaintiff. Tt is, no doubt, a ease in which the jury would take what they would call a common-sense view, and would say, " Oh ! he might have seen all these things if he had been inclined to do so ; but he kept out of i the way because he did not want to see j them." Putting the finding on the seveni teenth issue, with the finding of acquiescence in the making of the award, how can the ' Court say that the verdict ought to be 1 entered for the defendant, upon the ground now urged ? I Mr. Rees argued as to no time for proceeding in the reference having been, appointed. The Chief Justice : What is the reply on ' that point? Cochrane says, in effect, "No particular time was fixed, because I was busy in the matter at all times for three months. I was continually running after the defendant." Mr. Rees was further heard ; and he cited Peterson v. Ayre (23, L.J., C.P., 129) and , other cases. | The Chief Justice said he thought it the , duty of the Judge not to expose parties to r further expenses, or to desire that points III I should be further argued, unless his mind ! was, as it were, in balance, so that he wished ' to hear argument to enable him to decide one way or the other. He had no such doubt ! here ; and he did not believe that delay, or } further preparation upon the part of counsel, P would enable the different points to be argued more fully or clearly than they had i now been argued. i Mr. Rees would not further press the Court as to the motion to enter the verdict 1 for the defendant. He would now move for a rule nisi for a nonsuit, on the grounds ■ — (1) There was no evidence at the trial of notice having been given of time and place for concluding the reference ; (2) That the submission had reference to an interest in land, and, therefore, under the Statute of Frauds, should have been in writing; (3) That the submission involved disputes connected with a goldmining copartnership or adventure, and that the fact of the plaintiff being, at the time the interest commenced, the holder of a miner's right (as required by the U2th section of the Goldfields Act, 1866), was essential to be proved, to entitle the plaintiff to succeed, and it had not been proved. After argument, The Chief Justice declined to grant the rule upon the first or the second ground. The first had been previously disposed of ; and as to the second, he was at first, and was still, surprised to hear it contended that, upon the evidence, this submission was % contract relating to an interest in land to be sold, Kc. As to the third ground, under the 112 th section of the Goldfielda Act, the point was new and important, and it would be well that it should be ventilated. On that one ground, therefore, the rule might goRule nisi for a non-suit granted. Mr. Rees would now move for a rule nisi for a new trial, under Rule 353, sub-section 6, on the ground that, upon all the issues except the first five and the eleventh, the findinga were so defective (or contradictory) that the Court could not give judgment upon the record as it stood. The Chief Justice refused to grant the rule upon the ground stated. Mr. Rees asked for a rule nisi for a new trial, on the ground that the verdict was against the weight of evidence. He contended that as to the question of notice especially, the verdict was most clearly against the weight of evidence ; and it was so, also, upon other essential points. The Chief Justice said that he did not think the Court would be justified in saying that the verdict was against the evidence. Looking at the issues, and the almost uniform way in which they had been answered, he could not but think that the jury had come to their conclusions after fairly considering the evidence. The fact that, upon a case which was made stronger for the plaintiff than at the first trial, the findings were less in his favour, showed that the jury did not decide upon their findings "without discussion and discrimination ; and the jury, as was known, remained a long time out of Court. Although, in the mind of the Court, the j balance of evidence might be in favour of ' the opposite side from that for which the findings were, taken as a whole, yet, considering that the question was one of evidence, which the law entrusted to the decision of the jury, and that a question of belief in the witnesses was also to some extent involved, he felt that it was not right to set aside the findings. It had been urged that the granting of the rule would involve only a question of expense ; and such might be the fact, supposing the parties could all come together again. But he (the Chief Justice) could not lightly upset the verdict, nor, as a mere experiment of what might result upon a new trial, could he delay the plaintiff, for months, in enforcing his claim. The case had now been twice tiied, and thoroughly sifted ; and there was before the jury evidence upon which their findings might be supported, although it was not such strong evidence as the Court itaelf would have wished to see as a basis upon which to support the award, because the raind of the Judge might take a different view from that taken by the jury as to the credibility of witnesses, and as to the meaning to be attached to certain words and phrases. It was no use granting the rule nisi, and putting the defendant to expense, unless he (the Chief Justice) felt some such doubt as might be removed by argument. He did not feel any such doubt ; and if a new trial was to be granted at all, it must be by another tribunal. Rule nisi refused. The Court was adjourned at a quarter before five o'clock.