SUPREME COURT.

Globe, Volume XXII, Issue 1913, 12 April 1880, Page 3

SUPREME COURT.

IN OHAMBEES. Monday, Apbil 12. [Before His Honor Mr Justice Johnston.] His Honor sat in the Court Chambers at half-past ten o'clock. IN BB A. MCMILLAN, A BANKET/FT. In this caße, on the affidavit of Mr B. Hale, trustee in the bankrupt estate of A. McMillan, his Honor issued a warrant for the arrest of the bankrupt for fraudulently concealing portion of his stock-in-trade. It appeared from the affidavit that from information received Mr Hale, in company with a sergeant of police, visited the premises of the bankrupt at Kaiapoi, and there underneath the floor of the shop discovered a quantity of goods. On this and other circumstances an affidavit was filed and the warrant issued, as stated, resulting in the arrest of the bankrupt. Mr G-arrick appeared for the trustee. Mr Stringer for the bankrupt. His Honor said that, on looking at the section of the Act, he found that though power was giyen to arrest the bankrupt, nothing was said as to what should be done afterwards. Mr Garrick said that he did not see what they could do in the matter. His Honor Baid that, so far as he could see, all tho Act provided was that the man might be arrested but that there was no provision for keeping him. Mr Garrick might, if he chose, examine the bankrupt as to any further goeds he might have roa?on to believe were concealed. Had Mr Garxick taken out a search warrant ?

Mr Garrick replied in the affirmative ; but they had not found any more goods. His Honor said that the arrest had, then, been ineffectual as to the discovery of further good?. Mr Stringer, of course, asked for the discharge of the bankrupt. Mr Stringer would at once apply for his discharge, as the Act did not give any power to retain him in custody. He might say that McMillan had given an account of all his goods. His Honor pointed out that he had it on affilavit before him that a quantity of goods had been discovered concealed in a very suspicious manner. On looking through the statute it seemed to him that, though they had the bankrupt, it gave no idea as to what was to be done with him. Mr Garrick said it seemed to him that the only reason the power of arrest was given was to enable a freer search under warrant to bo made. His Honor said that another time he would not grant a warrant under this section, unless the person was to be brought up immediately. The Act simply went aa far as to give power to arrest, and then was silent as to any further steps. The bankrupt must be discharged. The bankrupt, who was present in custody, was then discharged. SITTINGS AT JYISI PBIUS. The civil sittings of the Court opened at 11 a.m. BRACKBN V. DAEBEII. This was an action for libel, in which Mr Thomas Bracken was the plaintiff and Mr Gaorge Darrell defendant. Mr A. (oughrey appeared for the plaintiff. Mr Garrick, instructed by Mr Travers, of Wellington, for defendant. Mr Q-arrick took a preliminary objection to the trial being heard before a common jury. His Honor, on looking at the order for settling time and ploce of trial, said that the plaintiff had applied for a special jury, and so had the defendant, but neither had struck the jury.

Mr Loughrey said the defendant had applied for a special jury, and should have given plaintiff notice. Not having done so, they thought the trial would be by common

His Honor said he was informed by the Registrar that the issues had been settled by a Judge in Wellington, and the trial fixed on application by the defendant for special jury. The venue, however, has changed to here, and then the plaintiff, by Mr Douglas, had obtained an order fixing date of trial, and by special jury. Neither party striking a special jury, an application had been made for trial by common jury so late as Friday last, but refused.

Mr Loughrey said the plaintiff was under the impression that he was carrying out the order of the Court, but as the defendant had applied for a special jury they thought he would have it.

His Honor pointed out that Mr Douglas bad applied on behalf of the solicitors for the plaintiff for a Bpecial jury. He did not see how they now could do this. They had prevented the defendant from getting the special jury. It was quite plain that the last order must be the order of the Court, and ample time had elapßed to enable the plaintiff to carry out the order. Under the Jury Act he understood that the plaintiff was not entitled to the special jury without order. He did net know what course it was intended to take.

Mr G-arrick suggested that the record should be withdrawn, which should only affect the proceedings of that day. His Honor said of course they could not force the plaintiff to withdraw the record. Supposing that no order had been made for a special jury the time and place of that had beßn fixed so that the Court was legally seizen of the case. But the difficulty, of course, was that the defendant was prevented by the action of the plaintiff from striking a special jury. Unless some one took some step in the matter, the Court would order the case to be struck out.

Mr Loughtey said that Mr Travers, the plaintiff's solicitor, had stated that he had abandoned his order for a special jury. His Honor said that the plaintiff had also obtained an order for a special jury, which had not been abandoned. The question was now what was going to be done. He was about to rise and, unless anybody moved, he should leave the learned counsel to settle the mat'er between themselves.

After a short delay, Mr Loughrey said that the plaintiff would withdraw the record.

His Honor, addressing the common jurors, said he regretted very much that they had been brought there that very unpleasant morning solely to witness the farca which had just taken place—there waß no doubt that either on one side or the other very considerable neglect and laches had taken place, and if he had the power and could find out who was to blame, he should certainly order him to pay the expenses of the jury for the day. As it was he could not do so, but could only discharge them with the thanks of the colony for their attendance, and regret that they should have been needlessly called there. The Court then adjourned to ten o'clock to-morrow.