SUPREME COURT.-Friday. unknown.

Daily Southern Cross, Volume XXIX, Issue 4846, 8 March 1873, Page 3

SUPREME COURT.-Friday. unknown.

Mac'ii/Vitik v. La mil — Tlio Comfc gave judgment m the matter of disputed account in tho estito of T. AT. Maehattio, a bank, nipt. Tho judgment, which waa a written ono, occupied threo hours in doliveiy. 11 is Honor observed that tho caso canio befoio flic (.'out tin its piesent shape upon a motion l>y Mr llces to expunge fioin tlio pioofij against tlio ostatu of a dobt of £82.'?. It appeared that in the years 18G3-4-5 Machattm | was a partner in tlio linn of J. S. Macfarlano and Co., and. in that capacity had business dealings with Mr. Lamb, tho proprietor of tlio W aitemata Mills. Tho partnership was dissolved, and Macliattio then did business on his own account. Mr. Limb had largo dealings with tho In in ])iuir to 1)4 dissolution, and hecanio involved nitli Macli.ittiu in largo bill transactions, mid nt ono period was debited with C2,'287 7s 3d. Macliattio applied to tho Court foi its nanction to an arrangement with his creditors, but the p' titiou was withdrawn. In July, 18G8, Macliattio was adjudicated a bankrupt, and Lamb piovod against tho estate for tho amount abovo mentioned. Messrs. Hendoi • ders'jn and Macfarlano wero also claimants for a largo amount, viz , £2,200, for a p.irt of which thoy hold mortgages. Tho I'iovisional Trustee was instructed to niako out the accounts, and to adjust tho difleroncoH in respect of theso bill transactions. It appeaiod, however, that in January, 1807, thcio had boon an agreement botween tho b.inkiupt and Lamb upon tho ono hand, and Messis. llendetson and Macfarlano on tlio other, by winch tho bitter undeitook to tako over and retire the billR. Mr. I loos applied for a mini tion of MessiH. llendcison and Macfarlano's proof of debt, and it was loducod by £400. It tlion appeared that, in consequence of tho alleged former connection of tho Trustoo with tho lit 111 of HonderBon and Macfarlano, tho Tiustco's account was not satisfactory to the bankrupt, and an application was made to the (Joint to appoint an accountant. Mr. .1. Huchaiian was nominated, but declined to act. Mi. John Waytnouth w.is thon named, but after somo ttmo ho was withdiawn by consent. On tho 19th of August List Mi. Kbone/or Way mouth was appointed, ami tho accounts wero handed into Court on tho 'Joth January last, accoinp.unod by afhdavits. Thero w.is a balance .struck showing not that M.ichaltie's ostato was indebted to Lamb, but that Lamb owed Macliattio £010 115s. lOd. The process by which this result was eliminated had reference tosi'voral small items, but chiefly to two main qtiestion«, which tho Court had undertaken to decide, viz , whether Macliattio was entitled to cluirgo £400 as commission upon purchases mado for Lamb, and whether a vessel callod tho 'llaivcst IFoino,' valuo £!()(/, in possession of Lamb, w.is tho propei ty of tho bankrupt. Tt was alleged, on tho pait of Machattio, that ho was entitled to chargo ft per cout. and 2[ guarantee. Lamb alleged that Machattio was to do the business on tho lamo terms as Mi. J. S. Macf.ulane, who doposed that ho did not charge on purchases, but only on sales. The Court regretted that tho accountant has not consented to go through tho accounts with tho Tiustce, so as to narrow tho giound upon which judgment was to bo given. Tho Court did not soo any reason to distrust tho conclusion amved at by tho Trustee. With regard to tho imputations contained in tho aflid.ivits against tlio Trusteo, his Honor s.ud tho Court was bound to consider Mr. Roos's imputation that tho Trustee had suppressed a statement of tho accounts, as tlio chargo was mado by a gentleman of tho bar distinguished by talents, long experience, .Did an extensive praottco. Ho was bound thereforo to ask himself whether that chargo was true, because, if it could bo shown that it w.is true, tlio fact must have an effect upon tho judicial mind whenever any lopoit by tlio Tiusteo was boforo tho Couit. Ho would mako no common ta until tlio inquiry into tho character and conduct of tho Trustoo was determined. All it was nccossaiy for him to my was that upon tho ovidi iu-0 boforo him ho saw no grounds for tho imputation, and ho entered upon tho disputed ((iiostiona botweon tho parties uninlluencod by tho fact that the charge had boon sanctionod by tho affidavit of a member of tho profession himaolf ongaged in tho ease. It appeared to tho Couit that tho wholo truth was not contained in tho sevei.il Btatcmonts mado on both sides ; but taking tho balanco of tho evidence as it stood it was against tho supposition that Machattio was to have commission on purchases. Much of tho ovidonco wont as strongly against Machattie's claim as it did in tho mutter of commission. Thoro was no proof thut Machattio had exorcised any right of ownership over the •Harvest Home' Upon tho wholo of tho evidonco tho Court was of opinion that thoro novor was any contract for commission to Mr. Machatti", and that his light to tho ' Harvest Homo ' had not been proved. Tho Court thoro fora must lefuso tostnko out Lamb's claim against tho estate. Tho Court mado no order as to coats.