SUPREME COURT.

Globe, Volume XXII, Issue 1977, 25 June 1880, Page 3

SUPREME COURT.

SITTINGS IN BANCO. Thubsday, June 24. [Before Hia Honor Mr Justice Johnston.] The sittings wore resumed at 11 a.m. BANK OP NEW SOUTH WAXES V A. COX AND W. POSTLETHWAITK. The argument on motion for a decree herein was resumed by Mr George Harper, who cited other oases in support of his contention that the trustees could give a perfectly legal mortgage to the Bank, with power of sale, of their own motion without the order of Court. Mr Garrick replied, submitting that the cases quoted by Mr Harper only applied to personalty and not to real property, which was the case here. The will in this case had not clothed the executors with power to mortgage, hut only to sell, which was opposed to the power to mortgage, [Authority cited— Williams on Executors, 682 ; liewin on Trusts, 421.] His Honor took time to consider. BEQTNA V O’DEISCOLL AND OXHEE3. In this, which was a special case on appeal from the District Court, Timaru, Mr Joynt applied for the postponement of this case until 27th July, in consequence of Mr Stout, who was engaged in the Supreme Court, Dunedin, being unable to appear and argue it. His Honor regretted that tho delay should have taken place, and he was unable to see why, if Mr Stout was unable to come, he had not allowed Mr-Joynt to argue the case. Though very reluctant to grant an extension of time, he saw no other way for it but to accede to Mr Joynt’s request. EE AHBITBATION OP J. 9. BEUCB AND O. P. COX. On the application of Mr George Harper, this case was postponed for the filing of further affidavits. HAEBAP (APPELLANT) V. O ABLY ON (RESPONDENT). On the application of Mr Q-. Harper, a similar order of adjournment was made herein. MACLEAN T. OSTLHB. This was an interpleader suit from Timaru. The sheriff of Timaru, under and by virtue of a writ of fi fa., issued at the suit of tho plaintiff, attempted to take possession of the goods of the defendant. On arriving at the station, however, the sheriff found that tho goods were in possession of a bailiff of tho New Zealand Loan and Mercantile Agency Company, claiming under two bills of sale held by them. The question before the Court was, who was entitled to the goods ? Mr Oowlishaw appeared for the Loan and Mercantile Agency Company. Mr George Harper for the execution creditors, Maclean and Stewart. Mr Oowlishaw took a preliminary objection to the writ of fi. fa, under which the execution creditor had seized. It was directed to the Sheriff of Timaru, authorising him to seize the property of Emma Ostler, but did not set out in proper form that it was the property of Ostler, deceased, and that Emina Ostler was the administratrix.

Mr Harper, to save time, said he should submit that it did not matter what their title was. The question to be decided was, what was the title of the claimant.

Mr Oowlishaw wont on to argue that the deeds of mortgage given by the testator to the company were sufficient title and right for the company to enforce their right to seizure. The learned counsel then argued at considerable length that the writ of fi. fa. issued by the execution creditor was bad, being the ordinary form, and not de bonis intestatoris. He then argued that the possession of the company was a substantial one, and that for the reasons he had adduced the sheriff should be directed to withdraw. Mr Harper in reply submitted that on the interpleader issue they would not go behind the writ oifi.fa. The question was as to the right of the claimant to the goods, and the title of the execution creditor could not in this issue be brought into question. _ It was for Mrs Ostler to bring her action against the execution creditor if the writ and judgment wore wrong. [Authority cited Oaane v Bryce, 7 M. and W. 103 ; Chase v Gobble, 2 M. and G. 930; Belcher v Ratt, 18 L. J., C. P. 69 ; Green v Rogers, 2 O. and K. 148; Bird v Orabb, 30 L. J. Exch. 318 ; Shingler v Holt, 30 L. J. Exoh, 322.] The learned counsel than proceeded to argue at some length that the writ oifi. fa. was good. His Honor was inclined to believe, as advised, that the writ was bad, as it commanded the sheriff to levy upon the goods and chattels of Emma B. Ostler, administratrix of the estate of William Ostler, deceased, not as administratrix, which wonld have made all the difference. Hence the sheriff was commanded to levy on the goods and chattels of Emma Ostler. Of course ho was not deciding that Mr Oowlishaw had a right to impeach their title. . Mr Harper would uot detain the Court longer on this point, but would submit that the question of their infirmity of title could not bo brought into this argument. He would now submit that a number of the sheep mentioned in the mortgage put in by Mr Oowlishaw were at the time of the seizure unbranded as according to the mortgage, so that he submitted that the mortgage could not, under the Mortgage of Stock Act, cover these sheep. Mr Oowlishaw said that the contention on their side was that their securities need not come under the Mortgage of Stock Act, but wore in the light of bills of sale. It was, therefore, immaterial that the sheep referred to should be branded. The learned counsel then proceeded to argue the other points in the case at some length. Mr Oowlishaw replied, and His Honor took time to consider. The Court then adjourned until this day,