Supreme Court.

Star (Christchurch), Issue 161, 17 November 1868, Page 3

Supreme Court.

This Day. (Before Mr Justice Gresson.) His Honor sat in the Court Chambers at 11 o'clock this morning. RE GEORGE HACFARLAN, DECEASED. Mr Harper applied for an order for leave to issue probate to the executor named in the will. His Honor made the order as prayed. In Bankbuptct. be james johnston. The bankrupt, in person, applied for an order confirming the choice of trustee, and fixing a day for last examination and discharge. His Honor made the order as prayed, and fixed the last examination for Thursday, the 7th January, 1869. RE NATHANIEL BELLABS. The bankrupt, in person, applied for an order of adjudication and meeting of creditors. His Honor made the order as prayed, and fixed the meeting of creditors for Wednesday, the 25th Nov., at 1 1 o'clock. RE WILLIAM COCKKMLL BBSWICK. Mr Cowlishaw applied for an order of adjudication and meeting of creditors. He was anxious that the meeting of creditors should take place at Timaru. His Honor made the order as prayed, and fixed the meeting of creditors to take place at Timaru on Saturduy, the 28th Nov., at the Assembly Rooms. RE ALEXANDER CHARLES MILLS. Mr Cowlishaw applied for an order confirming the appointment of trustee and fixing a day for last examination and discharge. His Honor made the order, and fixed the last examination for Thursday, the 10th of December. RE WILLIAM THOMAS BAUGH. This matter was set down for further consideration and judgment upon application as to the trustee's charges and payment of the money collected into Court. ; Mt Cowlishaw appeared on behalf of Mr Deacon, one of the supervisors, and informed the Court that the accounts of the old trustee had been referred to the Registrar for taxation, and the result was that a considerable aum was taken off. , ' Mr Wynn Williams, who appeared for the trustee (Mr J. H. Hankins) said there had

been a meeting of creditors since the referring of the accounts to the Registrar for taxation. All the creditors were present, except Mr Deacon, and they had agreed to allow Mr Hankins all the sums specified in his account, with the exception of £7. Mr Cowlishaw said that the meeting of creditors to which his learned friend alluded was irregular. Mr Deacon received a note on the Wednesday, stating that such a meeting would be held on the following day, ami he was obliged to write back and say that a pi ior engagement rendered it necessary that lie should proceed to Rangiora on the Thursday. The Act required that seven days' notice of the meeting should be given. His Honor said, that under the circumstances, it would, perhaps, be as well to adjourn the case. The Registrar's taxation was before him, and he perceived that the sum of £34 3s 2d had been struck off the trustee's account. Had all the creditors, except Mr Deacon, agreed to allow the trustee all his claim with the exception of £7 ? Mr Williams replied in the affirmative. He had got; the document signed. His Honor asked Mr Cowlishaw if he was in a position to know what Mr Deacon's feelings were in the matter. . ■ Mr Cowlishaw said he was not. The meeting of creditors would have to be subject to the approval of the Registrar. The creditors could not make any award without his consent. His Honor said that under ordinary circumstances the Court would approve what the creditors approved, so far as remuneration was concerned. There were other items besides remuneration in this case. Speaking abstractly, and without reference to thiß particular matter, his feeling was, that if the creditors as a body were disposed to allow charges even outside the mark, the Court would not object, the principle of the Bankruptcy Acts being to leave the administration .of estates as much as possible in the hands of the creditors themselves. It appeared that Mr Deacon was a dissenting creditor, and it would be as well to ascertain whether lie agreed with the decision of the other creditors before making any order. If he did not agree, then the Court would have to exercise its judgment as to the various items. The case was ordered to stand over until Friday next. In Banco. heremaia mouth and hoani timartj v. the qukek. This case was set down to shew cause why the writ of error should not be set aside. Mr Wynn Williams, for defendant, informed the Court that Dr Foster was instructed to shew cause, but had left town on the understanding that the case would not be set down for argument until Friday. He had therefore to apply to the Court for an adjournment. His Honor ordered the case to stand over until Friday next. KOLLE6TON V. HARORBAVBS AND ANOTHER. Mr Wynn Williams, for plaintiff, stated that he ought to have withdrawn the case, but he had not been in time to do so. A mutual arrrangement was in course of negociation, and he would now ask the Oourt to allow the case to stand over for a month. His Honor acceded to the application. MILES AND OTHERS V. TVAirT AND OTHERS. Mr Harper said he had referred to the Wellington papers, and found that the judgment of the Court of Appeal in this case was not given fully. He would therefore ask his Honor, if lie was in possession of the written judgment, to oblige him by reading it over, or permit him to see it. His Honor : It was a most elaborate judgment, and the judges hadn't it finally prepared until the morning when it wa# delivered. In effect, the decision was exactly what I Btated that my decision would have been only for the reportof the Commissioners — that is, thatthe 76th rule should bo read as in the pleading. You will recollect I said that wax the conitruction I thought it should bear ; and the judges held that this was the true construction of that rule, and the judgment upon the point is a most elaborate one. Then they held that what I founded my decision in Banco on could not be a ground. You may recollect I founded it mainly on the passage in the report of the Commissioners, and the judges said that it would be a dangerous thing to rely on a contemporaneous passage in the report, because it might interfere with the rule, that you could not construe a written instrument by the intention of the party expressed at the time, ami thereby let in parol evidence. Therefore, the Court of Appeal could not allow that, whatever might be the construction of the report. The question turned also in this particular case upon " The Wool and Oil Securities Act," which says that property " shall be deemed in possession," and so on. The broad principle on which the decision rested was what I stated below, that it appeared to me the fact to be proved was the being in possession, which, as it might not be proved aliunde as it turned out, you wanted the wool and oil security to make out to the satifaction of the jury. The decision of the Court of Appeal, was, in elfect, very much in accordance with the opinion expressed by the Court below. Indeed, the judgment goes the length of saying that the Court below was right. Mr Harper enquired when it was likely that the reports of the cases would reach Christchurch. His Honor said that tome delay would necessarily occur. The correcting of the reports before publication in the Gazettp were undertaken by Judge Johnston. i Mr Harper Baid that the reports of the cases in the Wellington papers did not appear at length. j His Honor said they reported very badly in Wellington. He thought the judgment/3 in Miles and Waitt, and Rhodes and Robinson would both be most valuable. The Court then rose.