SUPREME COURT.—In Banco.

New Zealand Herald, Volume IV, Issue 1206, 26 September 1867, Page 3

SUPREME COURT.—In Banco.

WEDNEBDAY,.SEPTSMBEH, 25. (Before Hi ß Honor GBEENWAY V. - fe'oOHBES ;CA2fl> : DATiDY."" ££* Argument on. rule nisi. Mr. Whitaker appeared in support of the'rule. Mr. VVeston to snow cause against' it.: i ;;; ij • In this case there was an action raised by plaintiff to recover the sum of £2C .10, on. a, deed of mortgage executed by defendants. A Judge's order tad been obtained calling upon the defendanta to amend, their 3rd plea, by setting out the deed of mortgage therein. The defend.ints now sought to set aside the order, relying upon ail affidavit by Mr. James Russell, to the effect that the deed was in. .the hands of Messrs Jackson and Busseli, and that they .would neither give up the document nor permit the same.to he used. The defendants had'.obtained-.a-rule .nisi . calling upon plaintiffs to showcause why .the.Judge's order should not be set aside, and the present argument was upon the rule. - j s.. Mr, Weston argued at some length; that tile rule should bo discharged, relying upon.,the plaint!EE's affidavit and rules 76, and 107. . , , " Mr. Whitaker argued in support of tie ruie. . ■ ' His Honor: This seems to resolro itself into a question of production of a deed. . , r . - r * "Whitaker said it did to'a - certain, extent, .but, the document was not in the posseaaion-of defendant, ' and, therefore, they could not set it out.; . His Honor said the grounds of the refusal appeared to be insufficient. . . , . f " Mr. Whitaker said the defendants were asked to set out a deed which was in possession of the opposite party. (The learned counsel argued at considerable length that tho rule should be made absolute. His Honor said that from present circumstances, after theargument that had taken place, the,document seemed to be matter of evidence,. and, therefore, the original order must either be discharged or varied by bringing it within the necond part of the 167 th. rule. In discharging it he would do. so without" ooite against plaintiff, because., it .-was not liy his 'default that the order was made. ' •• : Mr. Whitaker said ( the - thing had arisen from the fact that insufficient notice had. been given by the other tide. . After some farther discussion, ' " His Honor.set aside the original order and made the rule absolute.. .. ,* * ' 1 ; . COOPEE r. bucexandl * ' ' Mr. Gillies moved by a rule nisi for an Voider for payment of money out of Court with costs in the above interpleader action amounting to ,£l96;'9s 7d. * Mr. Whitaker on the other side consented' to the rale being made abso?ute. I ■'-I'^ >■ ' MCQUABEIE V. THZ BAJJK. OEI j.T?CBXAIriB. Application for rule nisi calling upon,* plaintiff to show cause why the verdict of a jury returned in his favour should not be set aside and annulled. Mr. Gillies appeared for the defendants, Mr. Wilson for plaintiff. . .. .. Mr. Gillies moved for. a .rule nisi calling upon plaintiff to show caase why the verdict in his favor should not be set aside, and a verdiot entered for defendants, or a nonsuit or new trial ordered, on the grounrU that the verdict was contrary to evidence, to the direction- of . His Honor tho Judge, and perverse. The learned counsel said, it was not usual to.enter into argument in a case of, this kind where specific points had been reserved on the trial from the jury. ' '' ' • ' '' ,: r His Honor granted the rule returnable' on Tuesday next, on the understanding ; that if anything a' oso which it would be. necessary to consider,'the decision would be reserved until after the: learned Judge's return from the South. - -r MACFAKIjAITE vl K. ANU Hi ISAACS.

Mr. Gillies moved for a rule .nisi, calling upon defendant to show cause why the verdict in +hia case should not bo set aside, on 'the following grounds _ Ist. That the evidence adduced, .by.the,defendants did not support their pleas. " r , :r .. 2nd. That His Honor tho Judge' had wrongly ad* initted evidence as to the usage among auctioneers in Auckland with regard to setting off their, own private accounts ag&iosfe debts, due by a pnxcliasep < -to & principal. *' - . : ~,: " r 3. That the verdict of the jury was contrary to the evidence and the direction of the Judge., The rule -was granted returnable on Tuesday next.

SITTINGS IS INSOLVBNCY. An adjourned Bitting of tho Supremo Court was held yesterday in its insolvency jurisdiction when the following cases were disposed of, ~ IN EE AKK PSICK. ' ' The insolvent appeared in person. Mr. Brookfield: X suppose the petitioner receives hor discharge. I presume the application will be by the insolvent. - i: , Hiß Honor: Do you appear Airs. Price to make any application . Mrs. Price: I apply for my discharge, . sir, if you please. • There was no opposition, and the insolvent received her diacharge. , IK KB DAVID KCBXWOOD, SHtPOWJTEB. A compulsory petition by Messrs. Cruickshank and CO. . .. . Mr. Beveridge, on behalf of the sequestrator, said he had understood that this case was.to be adjourned until tho November., sitting ,of the Court. It had been found necessary at tho former hearing that some proceedings should be taken at the, Buller, and it had not been .possible to ; proceed at present; ho would therefore now apply for, an adjournment. There was no appearance for-the ii* BOlvant; and the application was granted ; : the cf.se being adjourned until November 13th, the appointment of a trustee to be made subsequently to. a meeting of creditors. IN BE.BDBrUHD JAMES COxi',"' " Mr. Beveridge on behalf of'thie petitioner applied for an adjournment , until., November . 13th, . on tho ground of the absence of a material fitness. ' Mr. Weston on .behalf of John , and George Cox, relatives of the insolvent, ;.applied under the 23rd section of the Debtors and Act, 1865, fir a share of the dividend on account of "wages, tbo applicants alleging that they.had beexi.in the service of the insolvent for a period of two years, Bix months of which had been paid. . " Mr. Beveridge said no notice had been given of the claim on .behalf of John .Cox, and notice of that of George .Cox .had, only . been - received lato on Tuesday night. An affidavit hadalaobeen filed that morning, that the claim, was incorrect, and a witness whose evidence,would be required in support of it was at Coromandel or the Thames. An action had been brought by the present applicants , jjr ; the, Resident Magistrate's; Court in .respect to t'He'present claim, on which occasion they had been nonsuited. . His Honor thought the application wets'prematura before the final hearing. . Perhaps. Mr, BeveridgQ would undertake, that no dividend Bhouldbe paid in the estate without notice of the same, being given to the applicants. : " Mr. Beveridge a cqaiesced in the suggestion, and the case was adjourned until November 13th.' 'J IN HE TUOiCASMILNE MACHATTIK^ Mr. Brookfield appeared for.the petitioner, and applied for an adjournment, jwhich.yas, granted until November J3th. ..., IN BE JOHN HIOGINS. ' '' U A compulsory .petition by . Cristopher Atwell Harris.. , ; ; . His Honor inquired if there was' any opposition in the case.. Mr-Whitaker said it was,proposed' now to let the matter stand. in statu quo and to take.no further proceedings upon it.. The found. now that it would not answer his purpose to proceed any further in the matter. . Mr. Brookfield said it was rather a nivel doctrine that a creditor having exposed a debtor to the pains and perils of insolvency, should now come forward coolly.and say thathe would leave the'inatter in statu quo and that the debtor could not apply for his own discharge, and leave him in such a position as to pre> dude hia realizing his estate with the. eequestration order impending over his head. Mr. Whitaker said as to Mr. Hfggins being pre- . vented from' realizing; his Restate, as a.bankrupt, he was* unfortunately , for the oireditors,; a''banfastipt without any estate. , ' ~ . .His Honor: Then you abandon the proceedings ? Mr. iWhifcaker.: Exactly. . \,'j Hia Honor: Thence debtor'must/be 1 entitled to his discharge upon his own. substantive' application, or upon, the -withdrawal], of .proceedings. . Mr; Brookfield. argued tjiat tte slebtdr was entitled to hia discharge, aimplyag'u.banpriiptj tho Court jhaying decided; that of'baikinptqy had been committed. ~. ..... !"i ■ His ; Honor : said the previous had ■ simply. amounted to the. refusal of an application, to have the creditor's petition taken off the file or cancelled. ... ~ , .~' Mr. Brookfield argued that the debtor appeared as a bankrupt in accordance with the order of the Court, and that he, was therefore entitled to his discharge as insolvent.

" His Honor: There is nothing to. prevent tho peti- • tioner abandoning the matter. .This is one of those oases for-Tvhich. tlio Act does not make any provision, and we are thrown, back upon the general circum- '■ stances of tho case. I need not teU you that "wo were to confine ourselves to what is provided for in the Acta, we should be unable to got through a single ; case. ■ .... After some farther argument tho petition was discharged. Mr. Urookfield applied lor costs. • Hin Honor allowed three guilds cost. , Mr. Brookfield s.pplid for full coats, on the ground that the amount allowed was not ■ sufficient to coyer brief examination of client and witnesses. ~ Mr. J. B: Kussell, who appeared with Mr. Whitaker opposed the application. He eaid if costs were heaped up, the community might well complain of lawyers-and their charges. - His Honor said it was not contended that the costs allowed were sufficient, but It was all the other Bide were entitled to. . Mr. Brookfield agreed that the Court had merely power to dismiss ths petition with costs. His Honor Baid he would look into the matter, and refer to it again 011 Friday next (to-morrow). Mr. Kussell: If a large sum like that proposed were allowed, he would ask His Honor to suspend tho debtor's discharge; if the cosfs'of brief, &c., wero to be taxed by the Registrar, it would bo quite as well porhaps to proceed with the petition. Mr. J. B. Russell said it had been suggested by his learned friend that where-the costs were in tho discretion of the Court* it had power to fix them. The Court adjourned for half an hour and resum d. ' ET BE BEB.WIN AND MENTDELSSON. Compulsory petition by 0. louzel. Mr. Beveridge appeared for the sequestrator, and applied for an adjournment until November 13. No.opposition. Adjourned accordingly. CISCHABSES OBANTED. In the following cases there was no opposition, i\nd the petitioners received their discharges John Beaton, brickmaker; Mr. Brookfield for the insol•rent. William Conway, carter; Mr. Wynn for the petitioner; Mr. Porter appoint: i trustee. Sophia Paria James and Xiouis Rose JYznea, co-partners and publicans; Mr. Wynn for the insolvents; Mr. Weston withdrew the opposition. William Good, mail carrier; Mr. Beveridge for the petitioner; Mr. Porter appointed trustee. T. "W. Bolton, coachbuilder; Mr. Keetley for the insolvent; Mr. Beveridge withdrew the opposition; Mr. Porter . appointed trustee.

' V IN KB CHASLE3 S^'VDEHS. Mr. 'Beveridgo applied for the insolvent's discharge. ' ' ilia Honor said lie wag given to understand tlmt the usual fourteen days' notice by advertisement had 'not been given. Mr. Heveridge applied for an adjournment. ' His Honor granted a now order, fixing November 13ih for the day of hearing. Ef BE WILLIAM TQTCE, FAHMEU. Mr. Gillies obtained leave to amend the schedule filed in this case by inserting'a certain property secured by bill of sale, and also by amending a clerical error. IH2 NEXT SITTING- DAT. On the application of Mr. Gillies, the hearing of the petition of John Copland (opposed) was adjourned until Friday. IN BB LOUIS U. HAHBIS. Mr. Macdonald, oa the affidavit of Robert Harris preferred a claim upon the estate, on the ground that the affidavit had served the defendant as barman at £2 perweek, for a period of 18 months, six of which had been paid. • Mr. Brookfield appeared for the sequestrator, and drew the attention of the Court to the fact that whereas the debtor himself had set down £104 to this account in hiYschedule, the applicant preferred a claim to £218. There were no means of checking these affidavits in Colony. In England a day was specially fixed for examining these affidavits, and if the claim was not to fce found in the Bchedcle it wes referred to the official assignoe, or the debtor, and if challenged it would Temainover for further investigation. The rule in the Colony seemed to be that all debts should be proved not later than on'the day before the hearing. Under the present system there might be, and there really was a great deal of collusion between the debtor and any creditor, and an opportunity was afforded the latter to come forward and claim a larger amount than he was entitled to. It was on this ground that Mr. Ydrnon had refused to entertain the present claim. Ha (Mr. Brookfield) did not see what the learned Judge had to do with making any order until the present case had been investigated. His Honor said fie better course for Mr. Macdonaid to adopt would be take a rule nisi calling upon tho trustees to show cause why the money should not be paid.

A rule was taVen, retainable on Friday next. Df HE GEOBGE JOHNSON, ITEBCHANT. On the application of Mr. Brookfield, this case was adjourned until Friday nest. IX EE wn.T.rtv twitv, PIASTBKEB. Mr. Wynn appeared for the insolvent. Mr. Weston appeared to oppose on behalf of Gough's trustee, Mr. MacCormick also appeared to oppose. In this case two petitions had been filed and \ Mr. Wynn now suggested that the first should be ann ulled and the second proceeded with. His Honor decided that as both petitions were opposed they should both be proceeded with. William Avery, the petitioner, examined by Mr. Wynn, deposed that he was a plasterer, residing in Hobaon-Etreet, (adjourned petition produced.) The ' contents of this petition to the best of my knowledge are true, and fairly represent my assets and liabilities. A. question here aro"e.to whether the first petition was a nullity, it having been adjourned for the pimpose of inquiring whether a defect, through thepro- , per notice not having been given, could be cured. . The second petition was subsequently filed and a "second venting order was granted. Mr. Weston inquired whether or not the notices . had been served on the first petition. Mr. Wynn argued that the first petition was a " .nullity and that it was impossible to cure the defect Which had arisen under the Art petition. His Honor said the first petition, according to his notes, had been ordered to stand over. Mr. Wynn read the order in which the petition Was, stated to be adjourned. His Honor said the proper notices not having been given the first petition must be dismissed. •Mr. MacCormick said the understanding should 'be that the affidavits filed by oreditors under the first petition should be included in the second. Mr. Wynn acquiesced,. and the first petition accordingly'lapsed. The further hearing of the case was adjourned until Friday at 10 o'clock. IN BE THOMAS I/DvDBAY MACKY, MERCHANT.

Mr. J. B. BusmH for the insolvent, Mr. MacCormick appeared to npoae on behalf of the Bank of New South'Wuha.' . The insolvent deposed that the contents ofMacky and Cjo.'s petition were true and correct. ' By Mr. : Entered into partnership with. Captain Dacre in 1855. He brought capital into the business between £2000 and £3000. Witness : carried on the business in Auckland, while Captain Dacre carried On in Sydney. Witness brought no capital into the business, and had no private estate. .Removed his account to the Bank of New South Wales in February 1863, from the Union Bank. , The account at the Union Bank waß overdrawn, but it held bills to cover the overdraft (bankbook produced). When the account was opened at the Bank , of New South Wales the firm held stook in trade, .debts due to; the partnership, and securities. Mr. Dacre was in the colony at the time and engaged :in the business. Witness arranged with the Bank of New South Wales with regard to the transfer of the accounts. Securities • were demanded for the balance of the account against the firm. Gave securities and the Bank asked for a; statement of this partnership affairs. The manager of the Bank cjid not ask witness about his private estate. The Style of the firm was Thomas Macky and '■ Company. It was made known to the Bank that Mr. Dacre was a partner. Witness's affairs were perfectly solvent in Feb, 1563- First .discovered the insolvency in September, 1866. Capt. Dacre had left the colony in 1865 and returned in September, 18661 Witness called a meeting' of creditors, which was held on October 4th (letter to Mr. Wooodhouse of Bank of New South Wales produced), intimating that the majority of the creditors had agreed to take bills for 15s in the pound. The liabilities at the time were £21,000, good debts and stook £19,000. Did not state to the creditors that the liabilities were £32,000. Offered to pay the creditors 15s in the pound at the meeting. That was done without considering the endorsements and other contingent liabilities. Afterwards discovered that the arrangement could not be carried out and a subsequent offer was made. Gave

bills for the 15s and met the hills for the first ss. Continued an account at the Bank of New South Wales, who discounted witness's bills. Between the payment of tho first 5s on the three months bills and tho second becoming due, the firm discovered that 15s in the £ could not be paid and in pursuance of an offor to that effect the creditors agreed to receive 10s in the pound, the surplus after winding up the estate to be divided. The same j promise whs made to the Bank of N.S.W. Did not * subsequently propose to pay the bank only 5s in the £. ' We were overdrawn at the bank to the extent of £1300, and had bills and acceptances to the amount of £13,000. The acceptances of Sydney drafts amounted to £96t)« About £4000 of the £13,000 ac- ! ceptances had been proved bad. About £1250 of the £4,000 were paid. G-ave tho bank no security with regard to tho second account. The debt of £1630 to the Band of NewZoaland arose in Ootobor. Gave that bank the land script in April, 18fi7. Gave promissory notes to the Bank of Auckland about the ssme time. Tho Bank of Australasia had a claim at . the samo time on account of acceptances. Security was given in promissory notes of Jarres McDonald to the amouut of 10b in tho £. (Tho insolvent was examined with regard to eovoral items in his schedulo.) Had no interest in the Tauranga. Did state in the ceie of Po"oc'c v. Sellars in the District Court that he was part owner in the steamer Tauranga. Had not mentioned it in the schedule becau3o tho vessel had been mortgaged long ago. Tho {.roooeds £SOO, were lodged in the bank. I. erer heard of an offor from the Bank of N.S.W. to give a release in consideration of receiving 5s in the £. Did not say that ho could only pay _ £750. Every, effort had been made to collect the debts. Estimated the good debts at £1500 and a large amount of the doubtful debts had been collected. The difficulties of collecting inoreased after the nssignmont. _ Tho further hearing of the case was adjourned until to-day at 11 o'clock. EE JOHN CAKnAIT, QEOCEE. Mr. MaeDonald presented a petition from the above named debtor praying for belief. Tho liabilities were stated to be £241 19s Id, and the assets £4 10s. His Honor granted an order of sequestration fjT-ng November 13th for the day of hearing. IX BE ALEXANDEB QUIHIIIL. Mr. Macdonald also presented a petition from John "Waymouth, official liquidator of the Great Independent Gold Mining Company, praying that tho estate of Alexander Quihill be sequestered. It appeared that a writ of ca sa had been issued from the Supreme Court against Quihill for a dobt of £66, amount of calls due on shares. Tho application was made upon an affidavit by Mr. Geo. Kodgers, solicitor to the above company. His Honor granted an order for sequestration of the ostate, unless upon duo notice served by noon today the debtor ohoH show cause against it before/ Monday next. The Court adjourned until 11 o'clook to-day.