SUPREME COURT.—IN BANCO.

Otago Daily Times, Issue 2120, 20 November 1868, Page 2

SUPREME COURT.—IN BANCO.

TncitsDAY, November 19th. . (Beforo His Honour Mr Justice Ward.) a bill ca.sk. Bank of Ota«o (Limited) v. Campbell. —Argument for rule nisi and new trial. Mr James Smith, with Mr Ho**orth, appeared to move tho rule absolute ; and Mr Barton, with Mr Stewart, showed cause. Tho particulars ofthecasewercgiveninourissueofWednps-

day. Tho caso was tried before His Honour Mr Jußtico Chapman, in September last. The plaintiffs then sought to recover LICO 10a lOd, the amount of a bill of exchange, which was drawn by Wrdter Bell and Co., accepted by the defendant, and. endorsed to tho Bank. Tho defendant pleaded that the bill was given for timher bought of Walter Bell and Co ; that thero had been no consideration except aa to timber to tho valuo of L 33 lis ; that the Bank were the principals of Walter Bell and Co. in tho transaction, or that they wero partners. A vcriiet was, on that occasion, given for tho defendant. A rule nisi was then obtained on behalf of tho plaintibs, tho defendant being called upon to show cause why the verdict should not bo set aside and a. now trial granted, on theground that tho Judge misdirected tho jury in instructingthem that there was somo evidence from which ho might infer tliat Walter Bell and Co. wero tho agents of tho plaintiff^ and that such verdict was against the weight of evidence. Mr Barton and Mr Stewart addressed tho Court at some length on Tuesday last, witli tho view to shew that Bell and Co. had, in respect to this particular matter, acted as the agents of tho plaintiffs. Mr Smith addressed tho Court yesterday, on behalf of the plaintiffs. Ho roplied at considerable length to the arguments of tlie defendant's counsel, and contended, that thoy had failed to shew that an agency existed between tho Bank and Bell and Co. ; that the position assumed between them was simply that of a creditor tendering advice to his debtor, and that i£ tho Court held that tho conduct of the Bank in this instance established agency, and woro therefore held responsi le, a. heavy blow would be struck against tho security of commercial transactions. 110 would submit a suppositional case. Supposing that a servant of a tradesman entered a shop, bought an artie'e, paid half tho price fixed upon it, and afterwards sold to her master, would the transaction constitute tho servant an. agent? That would bo a caso analogous to tho present ono. Campbell did not know anything about tho bank when he transacted business with Bull and Co. Tlio salo of timber by them to Campbell was made in the absence of the Bank, and without any knowledge on the part of Campbell that tho Bank had any control in tho matter. There was nothing justifying the conclusion that tho Bank had taken upon itself tho burden of the business in question. Tho contract between Bell and Co. and Campbell was a contract solely between themselves. Thero was nothing in the ovidenco adduced on a previous occasion to entitle anyone to say thero was agency ; the tenor of tho evidenco waa against that conclusion ; the verdict given was against tho evidenco, and therefore tho defendants wero entitled to a new trial. Mr* Howorth also addressed tho Court to tho same effect. His Honour remarked that he laboured somewhat under a, difficulty in this case. Ho could not help thinking that thero was some evidence beyond what was reported that induced tho Judgo who presided at tho trial to aivo such positive directions lo the jury. With respect to the status of the Bank, where a person stood in the position of mcro mortgagee, under* a mere biil of sale, that did not .-done give him a status or constitute agency. He bad to consider merely the effect of the interview sworn to by Bell as between himself and Mr Glennio ; aud under all the circumstances of tho case, ho bad decided to make tho rule absolute on the ground of misdirection. MOTIO.V FOR I'KOKKE. M'Liskky v. Carey—This was adeerco moved f>r by Mr Howorth in respect to tho taxation of costs. The decreo waa granted. MOTION FOR CONFIRMATION*. Harris i\ Shanlev.—Thiswas a motion; for an order to confirm the sale of an estate. Mr James Smith appeared forthe plaintiff, and Mr Howorth for the defendant. Mr Howorth explained that thin was a creditor's suit for the administration of the estato of tho late Thomas Stanley. The caso had been beforo tho Court at different periods. On the last occasion, an order wastnado to pay the creditors a sum equal to 10s in the .£. Ono of iho defendants, William Shanley, had since made an application for the purchase of the residue of tho estate, and he (Mr Howorth) now applied to the Court to sanction compliaoco with the oiler. Only two out of tweuty-two persons had omitted to sign tho proposi inn to sell to William Shanley, a proceeding which, if carried out, would result beneficially to tho cstato. It was suggested that it was a question whether tho Court could give effect to tho offer, seeing that two of the creditors had not expressed their concurrence with tho proposition. His Honour agreed that tho fact of tho majority of the creditors having signed the agreement shewed that it would, if given effect to, benefit them ; but there might bo something behind tho scenes respecting which. . they knew nothing. Mr Howorth said ho had every reason to believe that His Honour would bo justified in granting the order prayed for ; that notwithstanding tho absence of the two creditors alluded to, it was not expected that they would offer any opposition. 110 did not know whether bis learned friend, Mr Smith, intended to show reason why the Court should not grant what was asked for. Mr Smith said it was not incumbent on him to argue whether tho Court had power to do what was requested. The plaintiffs wished a compromise to bo entered into, but inasmuch as they appeared in a representative capacity before the Court, on behalf of themselves and the body of creditors, they might incur a. serious responsibility in giving an expressed ussent in Court to what waa proposed to bo done. Ho should therefore limit his functions to saying that they left it to the Court to decide whether or not the absent creditors or those who had not signified their assent to the proposition could be controlled by the Court into acquiescing to it. His Honour remarked that formal notice must be given to the absent creditors. It was therefore decided that the matter Bhould stand over until this had been dono. EXECUTION OF A DEED. Mr Kenyon moved for an ordcrto complete tlie execution cf a deed of arrangement mado by Joseph Beal with hia creditor.*. Tlio order was granted. The Court then adjourned sine die