SUPREME COURT.—Sittings in Banco.

New Zealand Herald, Volume V, Issue 1402, 15 May 1868, Page 3

SUPREME COURT.— Sittings in Banco.

[Before Ills Honor Mr. Justice Moore.] His Honor took his seat on the bench at eleven o'clock. BCKTT V. SMITH. This was an action by the plirin Liff as assignee of the estate of Harris and Xaurie to recover the am .uat of a promissory note given by the bankrupts to the defendant before their petition in bankruptcy was •filed, andjfthich it -was alleged hud been dishonored. The defendant, -who was sued as a debtor to the bankrupt estate, pleaded not indebted, and averred that he had a set off of £IS2, the amount of the note against claim said 10 be due from him. This plea was not by a demurrer, which alleged that it was unsound and of no effect, the note having been dishonored previously to the bankruptcy. The Court overruled the demurrer, but gave lsave to reply, and the replication set forth that certain goods wi-re sold by the bankrupts to the defendant, the conditions of the tale being for cash payment, which it was alleged excluded the consideration of any promise to pay, and they further alleged that the'defendant had freely elected to conie in with the other creditors and prove his debt subject to whatever arrangement might be made. To tli'3Be replications the defendant demurred on tho grounds that the first replication st up a different cause of action upon a special condition, and second tb*.t sale Mid delivery having taken place tuch conditions could have no effect. His Honor gave judgment yesterday, and said that he felt by a referrence to the authoiities he must allow the demurrer. The first que-tion raised by the demurrer in this case was whi-ther tho fir.-t replication amounted to a departure f.om the declaration. He would be sorry to decide the case on that point, it'being only a matter of amendment and a question of costs. The remaining que>tions were whether the agreement being for cash on demand, and the defendant proving and voting as a creditor was sufficient to distinguish the present cas<> from these cited on ihe previous day, eo as to enable the defendant to eet off the promissory note. In the case o!' lechmear v Hawkins, the decision rested on the fact of there being mutual demand. In the case of Bland v. Kerr, the fact wns a promise to puy ready money on request, but it was Dot allowed to affect the judgment of the Court. In the oases of Cornforth v. Revett, llayne and Niaes, Donaldson and Couch (tho case decided in Victoria), there appeared to have been a demand and u refusal of payment. Cut all those cases supported Lord Ellehborough's remark th>it "if » trader once parts with goods on credit, he lets in a sel-off." Merely proving his debt would not prevent the defendant putting in a set-off, and'it did not appear that voting would have that effect, either so as to constitute a binding election on the part of the...cred.itpre. As to the (.romise to pay ciph on demand, and the agreement not to put in a a mere promise to pay cash wa? not sufficient to pre- .. .Tent a set-off. Cash on,demand meant cash after delivery. It did seem strange than' ah agreement such as that shoold be deliberately broken jit the .. caprice of one of the parties. -It appeared to hi") to be an'unconscientious dofcnca. fffi had looked intojill the caaes bearing on the point. There fras no alternative left to the Court. The demurrer was alio wed.

BANKRUPTCY. : / His Honor sat in bankruptcy at 12 o'clock, when the following oases were disposed of. ' EE DANIEL SIMTSON. Mr. Hesketh, who appeared for the insolvent, said that owing to some, circumstances which he could not state to the CourtJ-his client had not arrived from the Say of'lslands. He therefore applied for an adjournment of the oase until the next sitting day. The next sitting day will he Thursday, the 21st inßt;

HE DANIEL COIMNS, CABINBT MAKEB. Mr.'Hesketh appeared for the bankrupt, and applied for his discharge. There was no opposition. Bis Honor : The application is premature ; besides the requisite notices do not appear to have been given by the/trustees to the creditors that the bankrupt intended to ask for his discharge. Mr. Hesketh oited the 111 th section of the Act in support of his application. The bankrupt came up for his last examination, and as there was no opposition he begged the Court to appoint a day upon which the bankrupt should come up for his discharge. The bankrupt waß then before tho Court, and prepared to undergo hi 3 last examination. Bis Honor : The Act requires that the notices shall bo given to the creditors. Mr. Hesketh: By the trustee. His Honor: Tho bankrupt is here, the person principally and immediately concerned. The Court cannot call on tho trustee to come hero ; noither has the trustee any locus standi on the present occasion. Mr. Hesketh: The bankrupt has been deprived by the >et of all ho possessed. There are some ehtatos which would not admit of tbo payment of the making out and posting the necessary abstracts. It would be Tery hard if a bankrupt, having been deprived of everything he tiossesssed, should bo compelled to incur that expense, and perform the duty properly belonging to the trustee. His Honor: The Act requires that tho bankrupt shall put the creditors in a proper position to know everything he intends to do, and if ho wants his discharge it is a condition precedent that he should do all that the Act requires to be done before he obtains it. As to appointing a day when the bankrupt should come up for his final discharge there was no necessity to do that, for the language of the Act appeared to contemplate a state of circumstances under which, the Court might refuse,to grant the bankrupt his discharge at all. It was evident, however, that the necessary notices could not bo given ITI the Gnzetti if the bankrupt wore entitled to his discharge on the same day as his last examination. , ■

Mr. Hesketli: The::, your Ilonor, I have no alternative than to ask for an adjournal' until nest sitting day. BE JOHN GHAHAiI. —IMPORTANT CASE. Mr. Whitaker said that in this case the bankrupt did not appear, and there was but .too muoh reason to fear that he had been drowned. Indeed, there could be hardly any moral doubt of the fact. Ho threfore prtsumed in the case of the bankrupt's death, all further proceedings would be null, and have no effect.

Mr. Brooitfield, who appeared For Mr. Vallack, a creditor to the estate, understood that it was the intention of the bankrupt to have applied for his discharge if he had been present. Mr. Vallack had, however, found it impossible to make a final statement, partly because Sir. Graham had not been able to obtain a statement of aocounts between himself and the Bank Zealand. Sut as thore was no evidence of Mr- Graham's death he was simply in the position of one not present before the Court wlkh called, and in that case the provisional trustees would have liberty to proceed in his absence. Th°y certainly had a right to obtain all the information that could be obtained of the position of the estate.

Mr. Whitaker: I apprehend if the bankrupt be really dead all proceedings of whatever kind will be null. Although the Court may not be cognizantof that fact, still the proof of it amounts to a moral certainty. His Honor was of opinion that if evidence had been adduced to show that the bankrupt was dead the Court would have good ground to act upon. It was true th.it where there was any doubt about the death, the only fact before the Court was that he was not present. Mr. Brookfield said he proposed to ask certain witnesses who were present, although the bankrupt was not. a few questions as to the condition of the estate. 11 was not necessary that Mr. Graham should be present in order to do that. Tho 323 rd section of the Act was framed in order to enable trustees to get all necessary informatiin as to the bankrupt's estate.

Mr. Whitaker Baid the ordinary proceeding would be to take steps to compel Mr. Graham's attendance, and if he failed to appear their evidence might be adduced by affidavit or otherwise to show what had become of him- But it appeared to him that whatever might be done in the present position of affairs would he absolutely void. His Honor: The 76th section gives a discretionary power to the Court as to whether it would allow the case to proceed. There did not appear to be anythinz to prevent the provisional trustees going on if they thought proper. Mr. Broohfield : Suppose a case where the estate was only partially realised. His Honor: But unless you can show that any portion of the estate iB likely to be lost, or some sufficient cause, the Court would have the discretion, if it saw fit, to adjourn the. inquiry. Unfortunately the circumstances connected with this gentleman havo become a matter of public notoriety. But some evidence ought to be laid before the Court showing the actual state of things. Mr. Brookfield : Is it your Honor's ruling that the case should lapse ?

Bis Honor: Not at all, but having regard to the desirability of obtaining the fullest information connected with this case, the Court might adjourn any proceedings that were to be taken under a state of things which had not at a former sitting been contemplated. Mr. Whitaker believed that evidence could be adduced of Mr. Graham having gone down tho harbour towards the Island of Motu Ihi in a boat, that the boat was found capsized, and other facts to Bhow that Mr. Graham had been drowned. Hnder the 76th tection of the Act the Court had the fullest discretion to go on or stay proceedings as it saw sufficient reason to do so. The further hearing was adjourned until next sitting day. BE J. PiLMEB. This was nn applicat'on for a nullification in bankruptcy. It had been stated that there was only one creditor to the estate, but there appeared to be two namea in tbe schedule. Mr. Wynn appeared for the bankrupt, and s j .id that the petition emanated from the bankrupt himself. His Honor thought that some explanation of the discrepancy should be offered to the Court. Application granted, subject to affidavits being duly filed. BE BF.IIWIX AND MENDELSSOHN". This case which has been before tho Court for some time was again adjourned.