LAW REPORTS

Dominion, Volume 8, Issue 2520, 22 July 1915, Page 9

LAW REPORTS

COURT OF APPEAR

TWO RESERVED JUDGMENTS

A WANGANUI CASE

The Court of Appeal bench was occupied yesterday by their Honours Mr. Justice Denniston, Mr. Justice Sim, Mr. Justice Hosking, anil Mr. Justice Stringer, Reserved judgment was delivered on an appeal from the judgment of His Honour the Chief Justice (Sir Robert Stout) delivered in November last in the Wauganui case of George William M'Uaul v. Donald Fraser, an action concerning the will of the lato Duncan Eraser, farmer ( formerly of lkngitikei. Tho "■ plaintiff in the action is a son of the late-Cath-erine M'Gregor, who was a daughter of Duncan- Fraser, and the defandant is a sou of tho latter. Duncan Fraser died in August, 1879, and left a will of which the defandant .(Donald Fraser) was executor and trustee. In December, 1901, the late Catherino M'Gregor received £100 and signed a deed releasing the defendant (Donald Fraser) from j further liability in 'his position as trii6I tee. Plaintiff now alleged that this deed was signed without full knowledge of the facts, and prayed that it should be declared void, lie further asked tlie Court to remove the defendant from the position of trustee, to appoint the l'ublic Trustee in his place, and to order tliat accounts be taken and the estato of Duncan Fraser administered under decree of the Supreme Court. Tho defenco set out that the duties of trustee had been faithfully carried out, and that the will of Duncan Fraser had been read over to the late Catherine M'Gregor before sho became party to the deed of December, 1901. His Honour, in the course of his judgment, expressed tlie opinion that, in ' a caso of this kind, where lioither fraud nor mistake had been proved, no Court of Equity could set aside a family agreement after such a great, lapse of time. Plaintiff must fail in the suit, and judgment would be given for the defendant with costs (as on a- claim for £600) according to scale, £15 15s. a day for second counsel for two days, together with witnesses' expenses, disbursements, and interlocutory costs. From this decision the plaintiff appealed on the ground that it was erroneous in law.

At the hearing, Mr. C. B. Collins, of Wanganui, with him Mr. P. B. Broad, appeared for tho appellant, while Sir Francis Bell, K. 0., with him Mr. W. J. Treadwell, of iWanganui, appeared for. tho respondent. ! Tho appeal, was 'dismissed with costs oh tho highest scale as from a distance.

A BANKRUPTCY' MATTER. Judgment was also delivered on the matter of ail appeal against the decision of His Honour Mr. Justice Chapman, who recently decided that John Connell and William Kingston Connell, hotelkeepers, of Wellington, 6hould i bo adjudicated bankrupts on the application of the Phoenix Aerated Water Company; Ltd. The Bench at the hearing of this case was occupied by their Honours Mr. Justice Denniston, Mr. Justice Sim, and Mr. Justice Stringer. Mr. E. G. Jellicae appeared for tho appellants, and Sir. T. Young for tho respondent company.

In his judgment in the Court below, Mr. Justice Cliapnmn had decided tho important question that neither, the petition nor'the'proceeding with -it by the petitioner (Phoenix Aerated Water Co., Ltd.) was provided against'by the Mortgages Extension Act, 1914. The Court of Appeal upheld this view, and dismissed the appea.l, with 30.guineas costs.