SUPREME COURT.

Evening Star, Volume IX, Issue 2649, 14 August 1871, Page 2

SUPREME COURT.

IN BANKRUPTCY. This Day. (Before Mr Justice Chapman.) FINAL ORDERS. Re Nathan Welham, —The certificate of discharge, in this case, was suspended for six months. Re James Campbell. —Mr M'Kcay, for the bankrupt, applied for an order vesting the surplus in this estate with the bankrupt. Order granted. APPOINTMENT OF TRUSTEE. Re Jeffry Williams.—Mr Catomore moved for the confirmation of the appointment of Edward Pritchard as trustee. Pritchard was examined with regard to the security held, and an order was granted. Re Chaplin. —This case was further adjourned to Monday to give opportunity for filing an affidavit to enable the trustee to make sufficient enquiry before the Registrar. It was ordered that if it were not filed, the deed would be declared completely executed. Me 8 hath v. McDonald and others. — His Honor gave judgment to day on a motion for a decree in a creditor’s suit. He said the only question was whether the words of the testator were sufficient to charge his real as well as his personal estate with the payment of his debts. There could be no doubt that the words were sufficient for the purpose. It was evident the testator did not into d to give anything until his debts were paid. This view was confirmed by the decisions of Sir J. Jekel in Harris v. Ingledew and others. Equity and good conscience alike pointed clearly in that direction. He declared, therefore, that the j)ayraent of the debts should be a charge on the real and personal estate. Further directions and costs were reserved. M ‘Kellar v. Brown. —This was a summons to review taxation, and since the case was before him in chambers, his Honor consulted all the cases referred to, and others on the subject of divisable issues, with especial reference to the practice of submitting issues of each material fact to the jury. It will be remembered that the action was for an alleged defamatory libel; and that two issues were submitted to the jury, one as to the fact of the publication, the other as to whether the words were published in a defamatory sense. The finding of both was necessary to constitute a sufficient cause of action, but the jury found the first in the affirmative and negatived the second consequently the defendant bad the verdict which gave him the general costs of the cause. By the second branch of rule 172, the general costs are defined aa the costs of the cause, excepting only the costs of such parts of the briefs, pleadings and other expenses as are “ properly applicable to the issue or issues on which the defendant succeeded, and the expenses of such witnesses as gave material evidence n respect of such issues,” which costs the defendant would be entitled to have allowed and set-off against the plaintiff’s costs ; and conversely where a defendant substantially succeeded. And for the purpose of distributing the costs, counsel’s fees have to be apportioned. His Honor, in giving judgment, observed that, under this rule, the plaintiff claimed to have the costs on the first i*sue taxed in his favor, and the taxing officer considered that he was entitled to have them, and taxed and deducted them from the general costs. It was contended, on behalf of the defendant, that the “issues” contemplated by the 172 nd rule were the final issues, and must be taken to mean either distinct causes of action or distinct defences on which a verdict could be entered, and not those subordinate issues of fact which should rather be called questions of fact, into which a single cause of action or a single defence might be divided for the purpose of eliciting the opinion of the jury. He was at first inclined to think that Rule 172 referred to any and every issue of fact submitted to the jury, and that a single cause of action, however simple in its nature, should be deemed divisable into the elementary material facts of which it consisted, but a more careful consideration of the principle of our rules and a review of the cases and the principles upon which they appear to have been decidedforceduponbim(thelearned judge) the conclusion that what was meant bj 7 divisable issues was the issue or issue on which the verdict can b • entered, and that such was the issue contemplated by rale 172. In the present case there was only one cause of action, and nothing capable of being resolved into two or more causes of action. The two issues were two parts of one cause of action. That was the entire cause of action, divided, so to speak, into two halves, for the convenience of taking the sense of the jury, neither one of which would justify a verdict for the plaintiff. In one sense every fact submitted to a jury was an issue. Facts not admitted were facts in issue. But these wore not issues in the sense of the cases reviewed, nor as contemplated by rule 172, to which ultimate issues they must be deemed subordinary and auxiliary. For these reasons the summons must he allowed, but without costs. Re Catomore (Trustee) v. Murray.— His Honor reserved judgment. Re Georue Miller. —Argument for rule nisi for attachment was proceeding when our reporter left. Mr Macassey in support of the rule, Mr Jas. Smith showing cause.