SUPREME COURT.

Globe, Volume XXII, Issue 1976, 24 June 1880, Page 3

SUPREME COURT.

SITTINGS IN BANCO. Tuesday, Junb 22. [Before His Honor Mr Justice Johnston.] The Banco sittings of the Court opened at 11 a.m. ABHTON V. GBUBB. His Honor delivered judgment in this case, ■which was a suit by the husband of a daughter of a testator against the trustees to recover the share alleged to be due to her under the Kill. His Honor gave judgment for a decree, awarding one-third of the income and onefourth of the personalty to the wife of the plaintiff. Order —Decree to be drawn up in terms of the judgment. FULLEB V. THE QUEEN. In this case, which was an argument en demurrer to the defendant's pleas,_ bis Honor delivered judgment. The plaintiff sought to recover from the defendant certain Bums of money alleged to be due on account of certain railway work performed by the plaintiff, but the latter set up a defence in the shape o f liquidated damages for tho noncompletion of the contract in time by the plaintiff, exceeding his claim, and this was the •plea demurred to. His Honor now delivered judgment, holding the plea to be a good answer to the claim, and dismissing the demurrer with costs. Order—Demurrer dismissed with costs. BAUNDBB3 V. DBLAMAIN. In this case Mr Harper moutioned that the matter had been withdrawn, subject to an issue being inserted at the trial. BE ALPBED LEONABD. In this case a rule nisi had been obtained by the trustee herein, calling upon H. Fuhrmann to show cause why two bills of sale held by him over the effects of tho said debtor should not bo declared null and void, and he be adjudged to pay the sum of £l5O, the -value of the goods Bold by the said H. Fahrznann under the bills of sale. Mr G. Harper appeared on behalf of Mr Jnhrmann to show cause to tho rule nisi. Mr Joynt for tho trustee in the estate of the debtor, Mr J. J. Fisher, and in support of the role nisi. Mr Harper briefly recapitulated the facts of the case, and took a preliminary objection to the rule nisi. He submitted that, under the Debtors and Creditors Act, 1876, the Court in bankruptcy had no jurisdiction in this case. Section 8 of the Debtors and Creditors Act gave the jurisdiction. .(Quoted.) His Honor pointed out. that there was no Other Court sitting in bankruptcy, and bankruptcy proceedings could bo taken in Jianco or in Chambers. Mr Harper was not disputing this. His short point was this, that the Court could not have jurisdiction to upset bills of sale in tr.is way. The only way in which bills of sale could be upset was by an equity suit. He should presently quote to his Honor a judgment of Mr Justice Williams to this effect upon a case analogous to tho one now before the Court.

Mr Joynt said he would stive his learned friend soma time by admitting at once that the Court had no jurisdiction, except the parties came in and. submitted. Now his learned friend bad, by filing affidavits, admitted the jurisdiction, and could not now set up this as a bar. Mr Harper submitted that he had a perfect right to file affidavits as a matter of caution, because the Oourt might decide that the Court had jurisdiction. He should now, witb His Honor's permission, develop his point. He would first quote the old English Bankruptcy Act of, 1819, clause 12, whioh was almost analogous to clause 8 of the Act of 1876. — [Quoted.] His Honor said that in England the Bankruptcy Court was a separate Court, and Mr Harper would have to show that it had been held on a similar case that the Court of Chancery—the Court here holding a position somewhat analogous—had been held not to have urisdiction.

Mr Harper said he would desire to quote to his Honor from Archbold's Law of Bankruptcy, p. 72. [Quoted Archbold on Jurisdiction]. This showed that jurisdiction did not exist as referred to bills of sale. Again, another authority showed this clearly. [Quoted exparte Pease, 19 Vesey, page 47.] sDhe judgment hero laid down the rule that the Lord Chancellor had no jurisdiction in a case analogous to the one before the Court, where the parties did not come in and submit. Under the English Act of 1869 full machinery was provided for the settlement of -cases such as this ; but the New Zealand Act did not go far enough to enable this to be done here. [Quoted clauses 65, 66, 72, and 74 of English Bankruptcy Act, 1869.] Under these sections, which gave full jurisdiction, the Oourt had full power to deal with matters brought before it in the same way as this caae.

His Honor quoted Harding v. Cooper, New Zealand Jurist 1, as showing that it had been held that a third party had a right to come in.

Mr Harper said he desired to quote a case from Macassey's Reports, page 884, in re H. Shepherd. LQ uote< * judgments of Chapman, J., in re Shepherd and re Paterson.] His Honor thought that the eighth section of the Acb of 1876 seemed to contemplate ■what Mr Harper had pointed out in the matter of jurisdiction, as it provided for jurisdiction over three classes—first, trustees ; secondly, creditors; and thirdly, ■ those submitting to the jurisdiction. Now the question was, if Mr Harper had not, by appearing, submitted to jurisdiction.

Mr Harper would be prepared to meet this. If he had not come the rule nisi would have been made absolute against him. He submitted that the mere filing of affidavits was not on his part submission within the meaning of the Act. [Quoted judgment of Williams J., in re F. W. Hoffmann, reported in "Otago Daily Times," Juno 12th, 1880] He should submit that the mere filing of affidavits by the trustee was not sufficient evidence of the fraudulent nature of the bills of sale.

Mr Joynt submitted that the whole evidence of Leonard and the trustee went to show that -there was ample ground for believing that the hills of sale were fraudulent and void.

Mr Harper quoted from the affidavits of the trustee, Mr J. J. Fisher, to show that it was necessary for him to have filod affidavits, and that therefore this could not ba taken as a submission contemplated by the eighth section of the Act of 1876. He would liko to point out that in an action for specific relief, which was really what this was, a decree to set aside a deed on ground of fraud would be granted on trial and finding of a jury on issues of fact submitted to them.

His Honor asked Mr Joynt what he had to aay as to the point that tho rule nisi did not fully set out the grounds. Mr Joynt quoted Pratt v " New Zealand Son" Company, as showing that his Honor had held that it was only necessary to set out a short statement. He might tell his learned friend at once the grounds he intended to go on, which were that under the Bills of Sale Registration Act the bills were valueless. Mr Harper pointed out that this was met by the judgment of Chapman, J., in re Paterson.

Mc Joynt submitted that this was on the ground of jurisdiction, which was the real point of contention. His Honor quoted the case of exparte Bean, Oourt of Appeal reports, as regarded jurisdiction, which showed that it only applied to a trustee, a creditor, or in the case of third parties, whon they submitted to the jurisdiction of the Court. Mr Harper would like to quote a recent case on the point of jurisdiction. [Quoted re Yates, 48 L.J., N S., Bankruptcy 78.] His Honor said it Appeared to him that if it had not been for the Bankruptcy Act the Court would have insisted upon the matter being brought forward in the ordinary way as an action for specific relief. Tho only reservations were cases in which tho trustee, on behalf of the general body of the creditors, was interested, or a third party submitting to the jurisdiction of the Court. It came, therefore, to this—had the third party holding the bills of sale submitted ?

Mr Harper should contend that his coming there that day and taking exception to the jurisdiction of tho Court was not submission, although he could not quote cases in point. Had he not come there the rule would have been made absolute against him. His Honor said he would hear Mr Joynt.

Mr Joyr t said that he should submit that, had tho affidavits been a declaration, there could be no doubt that what Mr Fuhrmann had stated in his affidavit was a submission. He did not set up a plea that the Court had no jurisdiction, but went on in an affidavit containing twenty-four paragraphs to Bet up a case for himself. Tho facts set forth in the affidavit nood never have been stated by Mr jfuhzmann.

His Honor—But if he had not set forth his case the Court would hive made the rule absolute in his absence. Mr Joynt would submit that if the affidavit meant anything it meant that Fuhrmann answered tho rule. There was not a word about the jurisdiction of the Court. He (Mr Joynt) thought that this method of settling the matter would be as much for the benefit of Fuhrmann as for tho trustee. His Honor said he thought it was obvious that Fuhrmann did appear, but didnot submit, as he protested against the jurisdiction. He was clearly of opinion that there had not been a submission under the Bth clause of the Act, hence tho rule would be discharged. Order—Rule discharged, with costs. . KB HBNBY QUAXMBB. In this matter, which were two similar applications to the last, Mr Joynt obtained leave to withdraw the motions. CLEATS T KING. This was an argument on demurrer to the plaintiff's declaration. Mr Garrick, with him Mr Holmes, appeared in support of the demurrer. Mr George Harper contra and against the demurrer. After argument, His Honor eave judgment allowing the demurrer, with costs. The Court adjourned till 11 a.m. on Wednesday. Wednesday, June 23. [Before His Honor Mr Justice Johnson.] Hiß Honor sat in Banco at 11 a.m. SHAYLOB V MOBBIS. Mr McConnell appeared herein to shew cause to a rule nisi calling upon Edward Morris to shew cause why a certain caveat should not be withdrawn. Mr Spackman in support of the rule. This ease it will bo remembered was tried at the last Nisi Prius sittings, when tho defendant's counsel agreed to a settlement of the case on the basis of the payment of a certain sun per week to the 'plaintiff for his life, and the settlement of a house upon him. The plaintiff, however, repudiated the arrangement, and entered a caveat to prevent tho defendant in the action dealing with the land alleged to be conveyed to her by certain deeds signed by Morris. Mr McDonnell now submitted that the plaintiff had a perfect right to repudiate the arrangement, the more so as it had not been carried out. His Honor thought that the plaintiff was very ill-advisod, after the best settlement possible to avoid litigation had been made, for him now to upsot it all and incur heavy costs. Mr Spackman submitted that the plaintiff must be bound by tho acts of his solicitor and quoted a case of Davis v Davis reported in the "Law Journal," in support, but was unable to find the case. His Honor adjourned tho case till the afternoon, in order to allow Mr Spackman to find the case he had quoted. TAIIBEMAN V GEOBQE. This was a demurrer to declaration of the plaintiff. The action was brought to recover certain sums of money on bills of exchange, which were refused to be accepted or paid by the defendant, he alleging that tho goods had not been shipped according to contract. Mr Izard for defendant and in support of the demurrer. Mr Joynt for plaintiff and contra. Mr Izard submitted that there being no allegation in the declaration that the bills of lading were handed to the defendant, or that he had received the goods, hence the declaration was bad. He submitted that the defendant was not bound to accept the bills of exchange unless tho bills of lading were shown to the defendant. He would submit that there was nothing shown in the declaration that the goods were shipped in January, as provided in tho contract. Mr Joynt followed in opposition to tho demurrer. His Honor took time to consider. SHAYLOB V MORBia. This case was again resumed after the adjournment. Mr Spackman, who had been unable to find the case Davis v Divis, submitted that the compromise was binding on the plaintiff. [Cases quoted : Boscoe's " Nisi Prius Evidence," 14th ed. ; Swinfen v Swinfen, 27 L.J., Equity ; Green v Crockett, 34 L.J., Equity 606 ; Holt v Jesse, L.R. 3, Chancery division 177.1 His Honor pointed out that the case in the last authority cited by Mr Spackman was that the plaintiff was in Oourt, and that, therefore, he must be taken to have assented to the arrangement. That was not this case, and Mr Spaokman would have to prove something analogous to this before the Court would make the order to enforce the compromise, the plaintiff having declined to carry out the same. Mr Spackman proposed to read the affidavit of Mr Bruges. Mr McConnell objected, aB Mr Bruges, who WHS acting as the solicitor of Morris, detailed certain conversations held by him with Morris in the ante-room of the Court, whioh he would submit would be a breach of confidence between solicitor and client. His Honor ruled that the affidavit could not be read. The rule must be discharged, and he was sorry for it, as there would have to be another trial and he did not think it would do Morris any good. Order rule nisi discharged with costs. "WILSON V MOBBOW AND OTHEBS. This was a demurrer to the declaration of the plaintiff. Mr George Harper for the defendants, and in support of the demurrer. Mr G-arrick, with him Mr Holmes, for the plaintiff and in support of the declaration. This was an action brought by Mr Wilson against Morrow, Baseett and Co. for specific performance, calling upon them to sign a lease of a certain parcel of land, situate in High street, Ohristchurch, for twenty years. Tbe plaintiff therefore prayed for a decree calling upon the defendant to exeoute the lease. Mr Harper, in support of the demurrer, submitted that there was no averment in tho declaration that the plaintiff was ready and willing to fulfil his part of the contract. This, he submitted made the declaration bad. [Authorities cited Daniel on Chancery Practice, 316—481; Fonblanque's Equity, vol. 1, 391 ; Jarvis v Berridge, 28 L. T., 481 ; Fyfe v Clayton, 13 Vesey, 546 ; Columbine v Chichester, 2 Phillip's Reports, 27; Dart's Vendors and Purchasers, 1014; Barker v Walters, 8 Bevan.] For this reason he submitted that the demurrer must be allowed, the plaintiff not having alleged that he was propared to carry out his portion of the contract. Mr Garrick contra quoted rule 40 Reg. Gen. to show that he need not set out in his declaration that ho was ready and willing to do his part of the contract. [Also quoted Beg. Gen. 222.] He submitted that the averment in the declaration that all times had elapsed, &c, was clearly sufficient to allege that the plaintiff would be ready and willing to execute the lease on his part. He further submitted that the case cited by his learned friend, Columbine v Chiohoßtfr, did not apply. He should also like to quote (he case of Jarvis v Berridge of which his learned friend had only quoted the note. [Cited Jarvis v Berridge, 27 L. 8., 436 ; Clark v Tipping, 4 Bevan, 498 ; Dalton v Hayter, 7 Bevan, 318.] He must therefore submit that the declaration was a good one. Mr Harper having replied, His Honor took time to consider. BANK OF NEW SOUTH WALES Y COX AND POSTLETHWAITE. This was an application by Mr Garrick for a decree calling upon the defendants to specifically perform certain things as trustees of the will of the late W. E. Maodonald. Mr George Harper, with him Mr Helmore, for defendants. The plaintiffs had an agreement with the said Macdonald to give to them a mortgage to seoure a sum of over £9OOO, but the trustees had declined to execute the mortgage or pay the money. The defendants alleged that they had always been ready and willing to execute a mortgage to the Bank. Mr Garrick read the affidavits in the case, and pointed out that this was really a friendly suit to decide whether the trustees could or could not give tho mortgage to the Bank without coming to the Oourt for a decree. The plaintiff's solicitors were of opinion that the trustees could not give the mortgages unless under decree of the Court, whilst the defendant's solicitor held that the trustees had power of their own motion to give the mortgage to tho Bank. Mr Garrick quoted authorities in support of his case. [Cited Davidson on Precedents, vol. 4, 56; Fisher v Jones, 3 De Gex ; Hayes and Jarman on Wills, 349; Saunders v Richards, 2 Collier, 568; Clark v the Panopticon Company, 4 Drury, 26 ; Lea v Lloyd, 2 De Gex.] Mr Harpor, in reply, cited cases to show that in this case tho trustees were perfectly competent to give a mortgage to the Bank containing a power of rule. [Cited Fry on Spcoifio Performance, page 47; Dart's Vendors

and Purohaierg, 255 j Duley v Nalder, Jurist, vol. 2, N.S., 921 5 Russel v Place, 18 Bevati, 21; Roberts v Merchant, 1 Hare's Reports, 547.] At this stage of the proceedings the Court adjourned until 11 a.m. this day.