THE SECRET CASE.

Dominion, Volume 4, Issue 1092, 3 April 1911, Page 6

THE SECRET CASE.

.;.': BEFORE THE APPEAL COURT. (■■■ ■■'" ' ' ■ •■' ; I ROSE V. T. K. MACDONALD. I ACCOUNT IN A TRUST ESTATE \ CAN A WRIT OF ATTACHF\'L MENT ISSUE? -

'A phaso of tho action, officially dc-

! ec.ribed as'Eose and others vi Macdonald, I but more generally known as "Tho Secret I Case," will come before tho Court of r. 'Appeal, which opens' this morning. The i plaintiffs in the original action and re- | epondents in the Appeal Court were Mary •i Ebse, Janet Mackay Eose, Ellen Eoberta

Greenfield, and John Greenfield, and the

* defendant; was tho Hon. Thomas Kennedy j : ! Macdonald, M.L.C., who is the appellant I; in the latest phaso of the proceedings'. The plaintiffs mentioned are beneficii aries in the trust estates of tho late 1 JRobert Mackay Greenfield, and the late I Ellen Greenfield, their parents. Tho dei fendant was trustee.of theso two estates, I which are commonly spoken' of together j: as- the Greenfield estate. Tho principal ?•. assets in the , estates were originally a fourth share in the then Wellington tram- !■' ways and a fourth share in a landed proi perty known as tho "Waipaoa Estate, in [ the Gisborno district. >:]■■■ History of the Case. * The proceedings in tho Supremo Court : lave hitherto been conducted:strictly*'in camera, the public and tho reporters ' being excluded, and the newspapers being : forbidden .oven.to mention.the,case. The • action'began early in 1907, when the plai'n- : tiffs (tho beneficiaries) instituted a suit i for accounts. Tho defendant produced accounts purporting to show that the estate was his debtor .to a .considerable i amount. Tho accounts were examined be- !' fore tho Registrar of the Supremo Court ; at numerous sittings,' with 'the-.resivlt that , it, was finally established that the defendant was largely in debt to the estates. J 'A supplementary order for production of ; accounts from the end of 1908 onwards, ; ~ covering the period during which the in- ■ vestigation had been in, progress, was ; then obtained, and after a further large j number of sittings of the Kegistrar it was i found that the defendant was indebted to f the estato in a further sum of ,£1623. The ; defendant (consenting) was by order of the i Court removed from the trusteeship in f 1909. . . ■ i ' ■ . Defendant Ordered toPay. : ' On December 22, 1910, the following ; order, founded upon tho-report, of .the Kegistrar, is shown to have been made i by Mr. Justice Cooper:— : "It is ordered that the above-named de- '. fendant do pay into Court tho sum of .£2696,U5. lid., being , the amount agreed upon by the parties as due by the above-* named defendant, as trustee of the es-»v-tate of Ellen Greenfield, deceased, and V also that the defendant, do pay into Court *the further sum of ..£950 Bs. 4d.,. being the amount agreed upon as being due > by the defendant as trustee of tho es- : tate of "Robert Mackay, Greenfield, deceased."

Writ of Attachment Granted. Their Honours appear to have given : the defendant uiitil February'l, 1911, to coinply with this order. '-Defendant < fail- ; ed)to pay-the.-money by that date, and i. counsel for the ■ plaintiffs . moved for an I attachment (i.e., arrest of the defendant) l for non-payment. Argument was heard i by the Chief Justice (Sir Robert Stout) ; and Mr. Justice Chapman, and they dei. tided that it was a/ proper case for the i issue,of a writ, of attachment. Their i judgment, 'whicA' is , dated. February .{10," ; 1911, states tho motion is for an attachi ment for the non-payment of a sum of ■ .£3504 ss: 9d., and J, tbat the notice ofimo- ! tion is founded,on, tho order of Decemi ber,. 22 ,(quoted, above). ' After -reciting ihat order, tho judgment proceeds: "Affi- | davits havo teen'filed in support-of this ;■ motion, and in the affidavit of the solici-

: tor for the plaintiffs it appears that ! there is a sum of , .£142-17s; 6d.', of interest ' included in these two sumst. and the at- • tachment is asked only as for the lial- ; ance,.. deducting . the iriterest. from the ! amount of these two sums." .'.. Next tho judgment, reviews the pbjec- < tions taken by counsel for the defendant. i The first of these objection? was that,- -. as interest was included in the two. sums I named in tho order of December 22, no ; order for attachment could issue. Their j Honours reviewed ;tho cases cited by de- • f'endant's counsel, and held that, as the amount included for interest in the order : of December 22 could be arrived at without dispute, .there was no difficulty in " ordering an attachment to issue for the reduced amount, mentioned in the notice

of motion. The'other point' on which counsel for defendant relied .was that the ' defendant hadt not the money wherewith to pay the amount. Their Honours, following authorities, held that that was no answer to the issue of attachment. The judgment concludes:— "We, therefore, do not think that the objections taken by counsel for tho defendant can prevail, nor do wo think that any'of the matters placed'on affidavit for the defendant, or which his counsel says might be nlaced on'affidav'it, would avail the .defendant. We. however, think that the' matter, as it is a new one in NewZealand, may, if the defendant desires it. considered by'the Full Court, and , if thn! defendant desires further argument on the matter..:ive. are.willing that the order for attachment should lie in the office,.until tho Full Court meets on ipril !! next, but only on the following conditions, namely 'that he deposits in the office or the-Court, on or before Monday, the SOth-inst., the sumof.Jsoo, failing "which tho order for the attachment must issue. Either party will have liberty to file fresh affidavits beforo jrarch 28, if the defen'dund'wishes the matter further considered. . .

The condition on which a rehearing by the Full Court was allowed, as above iiamoly, the deposit of JJsooon or before February 20, apparently was not complied with, the records showing that defendant filed two fresh applications—ono to set aside the order of February 10 on the pound that a writ of attachment could not bo issued as a sequel to an action for debt, and tho other to stay execution. The latter was heard by Jlr. Justice Cooper and dismissed. Tho former came before the Chief Justice on Wednesday. March 14. Decision was reserved, and was given on tho following Friday, the motion being dismissed The questions as to appeal and stay of execution wero raised on this occasion by counsel for the defendant., and his Honour postponed his decision thereon until the following Tuesday;

Conditions of Appeal,

On that date counsel met him in Chambers, and were informed, that leave to appeal to the Court of Appeal would bo granted. Defendant was ordered to pay into the Supreme Court office by 3 p.m. on tho following day Wednesday, March 22) tho sum of one hundred pounds, and it w'a". further provided that a printed copy of the "Case on Anneal" (which comprises documents relating to the action) should bo nlaced in the hands of counsel . for tho respondents (tho plaintiffs in the Appeal Court proceedings), on or before ' Thursday, March 30; and that the case should come on for hearing during tho first week of the sittings of the Court of Appeal. The fulfilment of the above conditions entitled the defendant to take, his case to the Court of Appeal, and also carried with them, a stay of execution of tho writ of attachment which could otherwise bo issued against him, as a sequel to his non-satisfaction of tho order to pay tho sum of i£3soi ss. fld. Tho grounds'of appeal.are of a technicn;l character, ana do not go to the merits of tho original action. The calling on of the action in the Court of Appeal to-day will bo the first occasion on which it has been named in open Court.