Supreme Court.

Star (Christchurch), Issue 121, 2 October 1868, Page 2

Supreme Court.

This Day. (Before Mr Justice Gresson.) His Honor sat in the Court Chambers at 11 o'clock tbis morning. In Banco, davis t. simpson. His Honor delivered his decision. This was a demurrer to the replication. The action was against the defendant as maker of two promiss-.ry notes, and it was pleaded that by a deed, executed under the 2<Hh section of the Debtors and Creditors Ac, 186-., containing a release of the plaintiffs amongst other debts, that the usual order was made, the proving of the deed cancelling all former orders, and that thereby the plaintiff was bound by it as though he had executed the deef. The replication did not traverse the making of this order, nor the execution of the deed, but it traversed matters which it was contended by the defendant were quite immaterial — preliminary matters, such as were necessary under the sth section of the Debtors and Creditors Act, 1882. It appeared to the learned Judge that the demurrers were well founded, aud for this reason,— that the plea contained a definite averment, which was not denied. (Read.) This averment was nowhere traversed. It was denied that the deed waa registered at a particular time, but plaintiff did not say that it had not been registered at any subsequent time ; and it was quite sufficient if the deed was registered after the order was made. Several cases had beea cited, but not one of them went to show that the order of this Court, made under these circumstances, could be treated as a void order. In the case cited under the 192 nd section of the Imperial Act, which corresponded with the 23rd . section of our Debtors and Creditors Act of 1862, had not been complied with, and consequently the defence set up was not available. But here it was. not attempted to traverse the order of the Court. There was nothing to show that tbe order was not in full force, and under these circumstances there could be no doubt that sthe order was valid. The same might he said as to the 4th and sth parts of the replication, because the defence was, that certain preliminary requisites were not complied with, Thi 8 might have formed a good ground for a motion to set aside the deed, but could not be of any avail while the order of the Court was standing. Under these circumstances, the demurrer must be allowed, and with cosU. Mr Garriek obtained leave to amend. MILKS AND CO. V. WAITT AND OTHERS. In this case th 9 rule for a new trial was made absolute. Mr H arper said that his learned friend Mr Duncan would not consent to the case going t,o the Court of Appeal on his Honor's reservation. He had therefore to apply for leave to appeal. Leave given. In Bankruptcy, re john brook. Mr Cottrell moved for assessment of damages under the 187 th section of the Bankruptcy Act, 1867. His learned friend, Mr Wynn Williams, the trustee, said supervisors consented. His Honor made an order appointing Monday next, at 1 1 o'clock, for the assessment of damages by the Court.