SUPREME COURT

Otago Daily Times, Issue 22294, 21 June 1934, Page 9

SUPREME COURT

(Before his Honor Mr Justice Kennedy.) SALE OF WHEAT. The Supreme Court was engaged yesterday morning in hearing an application by William Francis M‘Cabc for a charging order nisi against his brother, John Loscrian M'Cabe, to be made absolute. Mr J. P. Ward appeared for the plaintiff (William Francis M'Cabe); Mr W. Ward fof Alice Power and the Perpetual Trustees, Estate, and Agency Company, ns the executors of the late Martin Power; and Mr A. N, Haggitt for the garnishee (the Wheat Purchase Board).

Mr J. P. Ward, who said he proposed to move that a charging order nisi bo made absolute, stated that ho had received notice that other persons claimed to be prejudicially affected by the order. In answer to a question by his Honor Mr J. P. Ward said that the amount in dispute was £47 13s Bd—the amount paid into court. It was a question whether his clierit f was entitled to the amount or the persons represented by Mr W. Ward.

Mr J. f. Ward went on to say that the ownership of some wheat was the point at issue. The amount mentioned was the proceeds of wheat sold by the defendant. He took it that he would simply move the order and leave it to the other side to show cause why matters should not proceed.

Mr W. Ward said it was a case whore possibly there was some slight ambiguity arising in respect of a family arrangement. The wheat in dispute was grown on the property owned by Miss Power and the estate of the late Martin Power, the trustees of the estate being Alice Power and the Perpetual Trustees, Estate, and Agency Company. Sirs M'Cabc, the wife of the defendant, was Mrs Power's sister, and she went to look after her sister at the farm when the latter was ill. Her husband'Went with her, and the farm was run for the trustees by Mr and Mrs M'Cabc. The evidence would show that they wore carrying on the farm under an arrangement whereby they were to get any profits if there were any. The wheat was grown and sold, and by some means the name of ,7. M‘Cabe was put on the docket. M'Cabc would deny that the wheat was his or that he had any right to it. Everything on the farm belonged to the estate, which was liable for rates, interest, and any outgoings connected with the farm. Evidence for the defence was given by .lobn Loserian M'Cabc, farm labourer. Palmerston, and by Douglas J. Russell, local manager of tbc Perpetual Trustees and Agency Company. Gordon Sutherland, accountant for Messrs Dalgety and Co., gave evidence for the plaintiff. His Honor said it appeared that with Mr and Mrs M'Cabc, or Mrs M'Cabc—it did not matter which —an arrangement was made to carry on the farm upon terms, the profit, if any, to go to Mr or Mrs M‘Cabe. The farm comprised certain stock and implements, and there was no special arrangement made in regard to them. He must hold that the proceeds of the wheat were the property of the estate, and the application would be dismissed. So far ns the defendant was concerned he bad brought upon himself the application by his own ambiguous conduct. No costs would be allowed the defendant M'Cabc as against the plaintiff. Mr Haggitt applied for costs on behalf of the Wheat Board, and his Honor granted £2 2s costs out of the amount paid into court. Costs of £2 2s were allowed the Perpetual Trustees Company against the plaintiff.