SUPREME COURT.

Otago Daily Times, Issue 16685, 4 May 1916, Page 9

SUPREME COURT.

IN BANCO. Wednesday May 3. (Before His Honor Mr Justice Sim) In re John Russell, deceased: Russell v. Merry and others.—Originating summons under the Family Protection Act.—Mr Br ugh for plaintiff; Mr Scurr for defendant. —Mr Brugh said that this matter had previously been before the court. On the last occasion an order was made by which the defendant Merry, the executor, should sell the property in the estate to the plaintiff for the sum of £440. This had been carried out. It was suggested earlier in the case that the funds should be passed over to the Public Trustee to be paid to the plaintiff, the widow, at so much a week, and that seemed to be all that was left in the matter now. He asked that such an order be made. There were four children going to school, and there was a daughter about 21 yeans of age, who was working.—After discussion, Mr Brugh said ho would draft an order on the lines suggested and submit it to his Honor in Chambers.

' Downes v. Patterson and others.—Summons under the Family Protection Act. — Mr Scurr for plaintiff; Mr Gallan for defendant. —Mr Scurr said this was an application by the husband of the testatrix, lie plaintiff was entirely excluded from any benefit under his wife's will, though he was 80 years of age and received the old-age pension. At present he was living with his two sons, single men, who were the beneficiaries under the will. There were also in the house a married daughter and her husband. The plaintiff was not happy in his present surroundings, and was anxious to live where he pleased. He had other married daughters with whom he could live. The old man was somewhat querulous, and the difference between him and his 6ons had not tended to make things any better. It was his wish to get a lump sum from the estate. —His Honor said there was no chance of giving him a lump sunt . That was quite out of the_ question.—Mr Scurr then submitted that his client should be allowed to give up the old-age pension and receive 30s a week from the estate, the value of which had been sworn at £656.—Mr CSallan said it was possible; if the matter were held over, that argument might be saved on the question of the amount. He appeared simply to oppose the suggestion of a capital sum. The sons did not want to be mean with their father, or to be hard on him in any way. It had been said the old irjan was not comfortable in his surroundings, but he had not expedited mattere in any way, and had lived for 17 months in his present home.—The matter was adjourned until the Chambers sitting on Friday.

In re Robert William Orr: Orr and others v. Muir and another. —Summons for appointment of guardians.—Mr Adams appeared in support of the summons for the plaintiff. There was no appearance on the other side. The application was for the appointment of the Perpetual Trustees Company as guardians jointly with the mother.—An order in terms of the summons was made) costs to be taxed by the Registrar. New Zealand Dreadnought Gas Company v. Riverton Borough Council.—Motion to set aside or remit award.—Mr Adams appeared for the company; Mr J. MacGergor for the Borough Council. —Mr Adams 6aid there was a contract entered into for the installation of a gas plant in the borough of Riverton. The work was carried out, but disputes followed upon it. The matter was referred to arbitrators, and by them to an Mr John Hungerford, of Dunedin, gas engineer, who made his award. It was to set aside that award that the motion was made on the ground that the umpire decided and ma/le his award oh all the matters submitted to him on the evidence of the arbitrators, and without calling for, or giving the company any opportunity of producing, witnesses or evidence. The question was whether the umpire had any power to act as he had done. Learned counsel submitted that he had no right whatever to decide the matter in the way he had done. The statements made by the arbitrators to the umpire were clearly partisan statements. The plaintiffs, Mr Adams contended, were entitled to have the award set aside. —Mr MacGregor said it was clear that Mr Kennedy, the arbitrator appointed for the company, professed to act, and did act, for the company throughout. It was also clear that the company authorised him to act in the double capacity. Learned counsel said that in pursuance of the arrangement pome to the matter was duly submitted to an umpire, and as a matter of law there was nothing to prevent it being dealt with in that way. The company took up the award,- and was thereby precluded from denying Mr Kennedy's authority to submit the case to an umpire. He submitted at the very least that there had been neglect on the part of. the company, but he went further, and said that the facts actually constituted an estoppel. The mere taking up of the award, he said, amounted to a waiver. Mr MacGregor then raised a point as to whether the proceedings were not too late. After further legal argument by learned counsel, his Honor reserved his decision.