SUPREME COURT.

Globe, Volume VI, Issue 658, 29 July 1876, Page 3

SUPREME COURT.

SITTINGS IN CHAMBERS. Friday, July 28. (Before his Honor Mr Justice Johnston) His Honor sat in Chambers at 11 a.m. RE GOODS OP JOHN BROWN, DECEASED, INTESTATE. Mr Wynn Williams applied for letters of administration to issue to David Brown, brother of deceased, His Honor granted the applicatioo. RE JAMES STEWART, DECEASED, INTESTATE, On the motion of Mr Wynn Williams, His Honor made an order granting letters of administration to Mary Stewart, as widow of deceased. RE JOHN DAWSON, A SOLICITOR, &C, Mr Garrick made application for the appointment of Mr Dawson, of Sydney, as a Commissioner of the Supreme Court of New Zealand for taking affidavits, acknowledgments of married women, &c. The learned counsel filed affidavits of his knowledge of Mr Dawson, &c. His Honor granted the application, a Commission to issue from the Court signed by the Judge, and bearing seal of the Court, to Mr Dawson, of Sydney, New South Wales, under the Act. m SITTINGS IN BA.NCO. His Honor sat in banco after the Chamber business. RE EANIERI LAKE WATER RACE COMPANY. On the application of Mr Thompson, this case stood over for further consideration. MENDELSON V SHELDON. lu this case, which was of the nature of an interpleader, a rule nisi had been granted calling on the defendant to show cause why the proceeds of certain goods seized by the sheriff should not bo paid over by the latter to the execution creditor. The matter now came before the Court in the shape of an argument as to whether his Honor should state a special case,, raise an issue for a jury, or decide upon the merits of the case himself. The plaintiff was an execution creditor of defendant, and the sheriff seized and sold certain horses,{&c, under writ of fi. ja Subsequently one Wadsworth claimed the property so sold as hie, and gave the sheriff notice thereof, payiDg the money and expenses of warrant, the sheriff to wait the issue of this claim. Mr Garrick appeared for the plaintiff, the execution creditor. Mr Geoige Harper for Wadsworth, the claimant. Mr Garrick took objection to Mr Harper's locus standi. An affidavit was necessary verifying the claim of his client, and disclosing the ground of his claiming the property taken. Without such affidavit he contended the case could not be upheld, and claimant had no right to appear. [Case cited—Powell v Lock.] His Honor, as at present advised, was against Mr Garrick on the matter of law propounded by him. • His opinion was that the affidavit might be filed, and the case proceed after the necessary adjournment. He was therefore against Mr Garrick. It was only necessary to review the applicacation, having filed the affidavit, and go on again,

Mr Harper desired to draw his Honor's attention to a case which he would cite, upholding his Honor's ruling: that was Webster v Delafield, 18 L.J., 0.P., p. 186. In the judgment in that case, Powell v Lock, cited by his learned friend, was reviewed, and the Judges held that it was not necessary for affidavit to be filed, that was, it would not bar claimant's right to go on. Objection overruled, Mr Harper said he would state the case for Wadsworth, which was that he had some eighteen months ago bought from Sheldon, the judgment debtor, the horses, &c, which had been seized, and had afterwards let them to Sheldon at £2 per week. It was while so in possession of the defendant that they were seized under plaintiff's suit. It was alleged that the execution creditor knew of the sale. Mr Gar rick suggested that the least expensive mode would be to refer the whole matter to the District Court at Timaru, where the parties resided. His Honor thought he could not do this unless by consent of both parties. Mr Harper thought that the better way would be for himself and his learned friend to agree to a special case. His Honor said he supposed that the case for the execution creditor was that there had been coUusion between the claimant and the execution debtor to the detriment of the creditor. Mr Qarrick said that was the nature of the line he should take. His Honor said that in that case the question of actual fraud would be a matter for a jury to decide upon. If constructive j fraud, it would then become a matter of law. As the claimant and witnesses were present, he would suggest to counsel the propriety of taking the evidencenowathand; after hearing which the Court would decide as to what tribunal should try the matter.. Mr Harper then called the following evidence in support of his caße : Albert Wadsworth deposed that in 1874 he bought the horses and waggon seized by the sheriff from Sheldon. f Receipt for money put in.] Witness paid a cheque for £BO, and rest in notes. f Cheque put in marked by bank ns having been paid ] Next day witness entered into agreement with Sheldon to keep the horses and pay £2 per week for use of them. This was on 2nd December, 1874. fAgreement put in.] The rent had been paid for the horses and waggon since. [Receipts put in.] The date of last receipt is April, 1876, and witness had since received £3O on account of rent. Tl;e property wad seized on 16th May. In February and March witness had possession of waggon and horses at the Rangitata Bridge. Sheldon was working for witness for some months with the horses and waggon. This was twelve months before the seizure, and at this time witness told plaintiff (Mendelson) that the team belonged to him. Witness bought a plough of Mendelson, and the horses seized took it away to witness' land. Sheldon was indebted to witness about £35 when the horses were bought, which was deducted by him. Full value was given for the horses, as they were very old horses except one. The waggon was also old. Cross-examined by Mr Garrick—Sheldon was not pressed so far as witness knew. He said he owed Brown and Plante £7O, and wanted witness to buy his team, so as to enable him to pay this. Mendelson asked witness, when the horses were working at Rangitata biidg", |if he had bought the horses, and witness said he had. This was, he believed, some twelve months before the seizure. Defendant owed witness now J 260 odd, taking into account the £35 paid since April, 1876. Edward Davis deposed to being present at a sale of horses by Sheldon to Wadsworth. This was a few days after the new year, 1875, He saw Wadsworth give Sheldon a cheque for the price of the horses. The cheque was for £BO.

Crose-examined by Mr Garrick He thought it was in January when the sale took place. John Sheldon deposed to having sold some horses to Wadsworth about the middle of December. He identified the receipt produced as the one given by him for the money. He received it by £5 at a t : me until January, when he got a cheque for £BO. In December witness entered into an agreement to rent the horses from Wadsworth. They were used by him until they were seized in the street at Timaru, under the writ issued by Mendelson. Mendelson distinctly told witness that Wadsworth had told him that the team belonged to him. Mendelson used to 'supply witness with horse feed, but ceased to do so, giving as a reason, in a letter from his Ashburton store, that the team no longer belonged to witness. Wadsworth had to supply him with horse feed after that. Witness was indebted to Mendelson some £l6O or £l7O at the time the horses were sold. He was not pressing witness at this time. At this stage of the proceedings, Mr Garrick announced that the parties had come to an arrangement, and the case would therefore not go further. His Honor thought this was a very sensible conclusion. No order ; by consent. The Court then rose.