Supreme Court.

Star (Christchurch), Issue 164, 20 November 1868, Page 2

Supreme Court.

THIS DAY. (Before Mr Justice Gresson.) His Honor sat in the Court Chambers at 1 1 o'clock this morning. In Bankruptcy, re william thomas baugh. This case stood adjourned from Tuesday last, in order that it might be ascertained whether the supervisor, Mr Deacon, would consent with the other creditors, to allow the trustee (Mr J. H. Hankins) all his charges, with the exception of £7. Mr Cowlishaw said that he was not furnished with a copy of the minutes of the socalled meeting of creditors until the previous day, and he had not time at his disposal to obtain an affidavit from Mr Deacon, his client. Mr Deacon, he might here inform the Court, did not agree with the resolution passed at the meeting. His Honor said that he had looked over all the .papers, in the case, and it seemed to him that . he could not look upon tbe meeting of creditors with very much respect. The trustee himself was acting as chairman at the meeting, and although this meeting purported to be formal, it appeared that the whole thing was. done by two proxies. The minutes stated that a resolution wai moved by Dr Iliffe, who was not present, but had a proxy tli ire. It appeared to him, therefore, that under the 234 th section of the Act, he ought not to approve of the resolution of the meeting unless it was approved of by the supervisors. The whole spirit of the Act

was, that the administration of estates should be left very much in the hands of tbe creditors, of whom the supervisors were the representatives. Mr Cowlishaw said that his client would not have objected to the resolution of a formal meeting. In this instance he received a letter on the Wednesday, intimating that a meeting would be held on the following day, at 2 o'clock. Mr Deacon called upon him, and stated that he had made arrangements for proceeding to Rangiora on the Thursday. He advised his client to write a note, intimating his inability to attend. The meeting was not formal, for the simple reason that the Act required seven days' notice to be given. He believed that Mr Deacon would have attended, and would have agreed to what tbe majority of a formally constituted meeting would agree to. His Honor said it was fairly to be assumed that the supervisors would carry out the wishes of the creditors. There had been some unfortunate misapprehension in this matter, which he regretted, but he could not see his way at present to allow the charges made by the trustee. He must therefore disallow them, unless Mr Deacon consented. The charges were ill-advised at the outset. Ii the supervisors, with the sanction of the creditors, were ready to allow them, he might be disposed to stretch a point. He happened to know that Mr Hill was a relation of the trustee, and although he knew Mr Hill to be a respectable man, still he could not attribute so much force to his opinion in the matter as he could to that expressed by Mr Deacon. It would only increase the costs, if the matter were further postponed. In disallowing the charges made by the trustee, the question came up as to costs, and he did not see how he could do otherwise than order the trustee to pay them. Mr Cowlishaw had been brought here by what the Court considered an improper, claim. Of course, if the creditors chose to do so, they could afterwards make any arrangements they thought proper, but he must order the trustee to pay the costs. It would be a very bad precedent, indeed, if trustees were allowed to fly in the face of the Act in the manner that had been done in this instance. , An order was made, calling on the trustee to pay the balance in hand into Court within 10 days from date ; the whole costs of the proceedings to be borne by the trustee. In Banco. heremaia moutu and hoani timaru v. the queen. A writ of error was allowed in this case, tried in the Native Lands Court at Christchurch, on the following grounds, contended hy plaintiffs — that a certain deed put in evidence on behalf of her Majesty the Queen, whereby certain natives purported to convey to Mr Wakefield, agent of the New Zealand Company, a large tract of country including Kaitoreti is invalid, illegal, and totally without effect by virtue of the 13 th diaper of the Royal Instructions of 18-16, and that therefore the title of the claimants herein, and the other natives, had never been extinguished ; that the said deed is void for uncertainty ; that the deed being illegal, invalid, and void, could not extinguish the title of the claimants to r the said land ; that no parol agreement by tbe aboriginal natives of New Zealand to sell their interest in tlieir lands to private individuals other than to her Majesty the Queen, or to persons on her behjalf, could be v/lid and legal, and that such a>n agreement could not be taken out of the Statute of Frauds by part performance, and ctbuld not be ratified and adopted by the Crown so as to be made a legal and valid agreement ; that the acts of juart performance of the said parol agreement being payments of money were ntot sufficient to take the contract out of the Statute of Frauds; that the said payments of nhoney and receipts and all otLer acts adduced ib evidence in the Court being, made, given, {And done under and in pursuance of the said deed could not be used and were not sufficient fto create a separate and binding parol contract for the Bale of the said land : that the (Court proceeded with and investigated the titles of and interests in the said land, under {section 83 of the Native Lands Act, 1865, -and section 38 of the Native Lands Act, 1867, ;and to make orders as to the terms and conditions for the completion of the said deed land agreement without any order of reference by the Governor; that a certain document purporting to be an order of reference under the said sections was signed hy the person signing it (the Hon. John Hall) without any previous authority from his Excellency the Governor; and that the said document was /received in evidence without any proof of .' the authority to sign it, or of the signature j thereto. j On the 6th October last Mr Wynn Wililiams, acting under instructions from the i Attorney-General, moved for and obtained a *'j rule nisi (returnable to-day) calling upon the • plaintiffs to show cause why the writ of error should not be set aside or quashed for irregui i larity on the ground that a writ of error does not lie on a judgment given in tbe Native Lands Court, and why the defendant should not be allowed to proceed on the judgment appearing by the writ of error to have been obtained by Her Majesty in the Native Lands Court, on the ground that the matters' stated in the notice of allowance of the writ are insufficient.; and frivolous — with costs: Dr Foster, instructed by Messrs Garrick] and Cowlishaw, appeared to shew cause, and Mr Wynn Williams in support. i A very lengthened argument ensued. Dij , Foster said that the contention on both sides i in the Native Lands Court was on the ordii ! nary principles of common law, which cam« t in as the basis of tbe judgment. He con | tended that writs .of error lie on judgment! i from all inferior Courts of Record. It wai [contended in the Court below tbat the sale U JMr Wakefield was bad, because it was only i {verbal agreement for the sale of land, but tht I Court decided against Mr Cowlishaw on the •common law. The learned counsel cited authorities in support of his {contention, that

writs of error lie on judgments from all inferior Courts of Record, and urged that the rule must be set aside. Mr Williams contended that error only lies upon matter of law arising upon the face of the proceedings; so that no evidence is required to substantiate or support it, there being no method of reversing an error in the determination of facts but by a new trial to correct the mistakes of the former verdict. A writ of error does not lie on a judgment of a Court of Record, which acts in a course different from the common law. He contends! further tbat the Native Lands Court was not a Court of Record; if it could be called anything, it was a Court of Equity' merely, and a writ of error would not lie on a judgment obtained there. His Honor reserved his decision. MILES AND OTHERS V. WAITT AND OTHERS. Mr Jameson said that counsel for defendants had not yet received any intimation of the judgment given by the Court of Appeal. It was intended to appeal to the Queen in Council, and the time for moving for leave would be up on Tuesday next. He had, therefore, to apply for an extension of time. His Honor said that an inferior court could not give leave to appeal from the decision of a superior court. Defendant could appeal to the Privy Council without moving for leave to do 80. The Court then rose.