AN AUCKLAND APPEAL CASE.

New Zealand Herald, Volume XXV, Issue 9218, 22 November 1888, Page 5

AN AUCKLAND APPEAL CASE.

-<» [by telegraph.—own CORRESPONDENT.] Wellington, Wednesday. In the Court of Appeal to-day the Auckland case, New Zealand Land Mortgage Company (appellants), and the Official Assignee in the estate of J. C. Cairns (respondent) was heard. Mr. Stafford appeared for the appellants, and Mr. Theo. Cooper, of Auckland, for the respondents. The appeal was dismissed with costs. This, our readers will recollect, was a case arising out of the bankruptcy of J. C. Cairns, which was heard in the Court of of Bankruptcy on August 13, before His Honor Mr. Justice Gillies. The following recapitulation of the particulars of the case will be of interest:— Mr. Button appeared in support of a motion for admission of proof of debt of the Land Mortgage Company against the estate of J. Cooper Cairns, and Mr. Theo. Cooper appeared with Mr. Cave for the Official Assignee. This was an appeal to the Court from a decision of the Official Assignee, who declined to receive a proof of debt of the Mortgage Company against the estate. Mr. Button, in opening the argument, said the question the court had to decide was whether the mortgagee, after selling the property mortgaged ami buying it himself, was entitled to prove against the estate for the balance An affidavit by Andrew Hannah, clerk to Messrs. Whitaker and Russell, i deposed to the sale of the property in | question by Messrs. Arthur and Buddie j by order of the Registrar, and it brought £'A'2~. The Official Assignee refused to receive the proof of debt of the company, on the ground that the property had not been valued as secured property, but Mr. Button contended the mortgagee was entitled to prove for the balance of his debt. The joint affidavit of Mr. Lawson, Official Assignee, and Mr. Cave, solicitor, gave evidence as to the bankruptcy of J. C. Cairns. The bankrupt had various real estate properties, including amongst others two of 19 acres and 15 acres respectively in Titirangi, mortgaged to the Mortgage Company for £1100 and i'SOO respectively. In the bankrupt's statement the company was returned as a creditor for £'20'w. The Official Assignee received from the company a proof of debt for £170S, balance and interest after realising the mortgage. His Honor Mr. Justice Gillies upheld the decision of the Official Assignee, and disallowed the proof of debt, and his decision was appealed against, with the result stated in the telegram.