SUPREME COURT.

Globe, Volume XXIII, Issue 2162, 29 January 1881, Page 3

SUPREME COURT.

SITTINGS IN BANCO. Fbidav, Januaey 28. [Before their Honors Mr Justice Johnston and Mr Justice Williams.] The sittings in "banco were resumed at 11 a.m. STHWAET V FBASBB. Their Honors delivered judgment in this case, which was a demurrer to two pleas argued on tho day previous. His Honor Mr Justice Johnston said that he was of opinion that the plea of bankruptcy against one of tho plaintiffs was a good one, as the bankrupt had no right to get accounts without tho intervention of his assignee. As to tho plea of release, he was of opinion that it was bad, because it did not show prima facie the releasors were aware of tho state of affairs, because there was no allegation of the banding over of the estate, and, though it might be true that he had not acted, and was, therefore, not responsible now, [there was nothing on the face of tho plea to show that the [releasers could give an intelligent discharge. For these reaeons he held that the plea of release was bad. His Honor Mr Justice Williams concurred, Tho argument by Mr Button was that the bankrupt might take an action without the concurrence of tho assignee, but this seemed to him untenable, because it was plain that the bankrupt could not deal with the estate without the concurrence of the trustee who was so much interested in the estate. The coses cited by Mr Button in support of the contention that the bankrupt could bring a suit in equity by himself only wept to the length that the bankrupt wap entitled to a discovery, in order to enable him to prosecute an action at law. As to tho plea of release, he was of opinion that it was bad. The release could not bo pleaded unless it was clearly shown that the releasors were aware of the whole circumstances of the case, so as to enable them to give such release. For these reasons he was of opinion that the demurrer to the third plea must bo over-ruled, and the demurrer allowed on the fourth plea. Mr Joynt obtained leave to amend tho third plea. Order—Demurrer over-ruled on tho third plea j demurrer on the fourth plea allowed. CEBDITOB3’ TBUSTBB OB G. B. CIABKK T. FOSTBB AND OTHBBB. Mr Bruges applied herein for leave to withdraw the demurrer. Leave granted to withdraw. •XOUH a V HIM. AND OTHBES. In this case Henry Charles Young was plaintiff and Messrs J. T. Ford, O, Newton and Hill defendants. Tho plaintiff sought to obtain an injunction to restrain tho defendants from proceeding with an action of ejectment against him, and also for a decree declaring him entitled to possession of the property on payment of the purchase money. Tho case was tried at the civil sittings in October, when the jury returned answers to the several issues.

Mr Joynt, for the plaintiff, now applied for a decree on the remains of the issues, which ho submitted had been found substantially for the plaintiff. Mr George Harper for the defendants and contra, to the application for a decree. Counsel on both sides addressed their Honors at some length. His Honor Mr Justice Johnston said ho thought that the decree as for could not be granted. As far as the findings of the jury wont he thought they did not establish the fiduciary position of Ford and Newton with regard to the plaintiff. The jury had found that the property was sold at a fair market value, and he saw no suggestion that Ford and Newton had acted fraudulently or secretly towards the plaintiff, or that they had in any way taken advantage of the fiduciary position which had existed between them and the plaintiff. For these reasons be was of opinion that the decree could not be granted. Mr Justice Williams concurred. The crucial test of the case was whether they were agents for the plaintiff at the time of the sale to them. There was no allegation of this at all, and there was nothing inconsistent in their acting as agents for Harper and Harper, and the Court was not to draw the conclusion because they were agents for the plaintiff up to a certain period, they were so all the time. The question was, whether having been agents for the plaintiff they were precluded from purchasing at so short a time prior to the sale. He could not see that this was at all made out. Nothing of the kind had been found by the jury at Nisi Erins, nor was there any objection to the agent of the mortgagee purchasing the property, because there was no priority shown as agents. For these reasons he was of opinion that the suit should be dismissed. Order—Suit dismissed.

Mr J’oynt gave notice of appeal. Mr Harper then applied for the dissolving of the ad interim injunction restraining the defendants from proceeding with their action of ejectment. Their Honors made an order dissolving the injunction without costs. BB ASSIGNMENT OB HOOPBB, AITKBN AND 00. In this case Hooper, senior, sought to be declared to rank as a creditor under the bankruptcy of Hooper, Aitken and 00. His Honor Mr Justice Johnston said ho had not quite made up his mind on the matter of giving judgment herein, and should like to clear up some points by referrence to counsel engaged. After some argument between his Honor and Mr Garrick (for the defendants, being trustees), and Mr Joynt (for plaintiff, and claimant), His Honor Mr Justice Johnston said be held clearly that the partnership property was responsible for the advances made by him, and that he was entitled to prove on the estate for these. It was clear that Mr Hooper, senior, had a right to prove for the advances made prior to the partnership. Some further argument ensued between learned counsel, they not agreeing as to what was submitted in the argument of the case. His Honor suggested that it would perhaps he better for Mr Hooper, senior, to give such a proof as he might bo advised, and then let the trustees either reject or receive it, as they might bo advised. The order would be—Leave to Mr Hooper, senior, to propose supplementary proof.

For Mr Hooper, senior, Mr Joynt; for tho trustees, Mr Garrick. CBHDITOBB’ TRUSTEE OV EBA3BR V. BROWN AND ANOTHER. This was an argument on demurrer to the plaintiff's declaration. For the defendant, and in support of the demurrer, Mr Garrick. For the plaintiff and contra, Mr Joynt. After argument their Honors gave judgment, overruling the demurrer with costs. Mr Garrick obtained leave to appeal or plead. BANE ON NEW ZBAIAND V QII.BS. This was an application for a rule nisi, calling upon the District Hand Registrar to show cause why a caveat entered herein should not be withdrawn, and a transfer from Giles to Zieslor registered. For tho District Land Registrar, Mr G. Harper.

For the Bonk of New Zealand, caveator and execution creditor, Mr Garrick. After argument, their Honors directed the withdrawal of the caveat, on the ground that the Bank not having »old within the time limited by the statute “ Execution of judgments against real estate ” of 1880, had lost the benefit of the memorial of judgments; while the transaction was not protected under the Debtors and Creditors Act, 1876, the seizure not having been perfected by sales. The District Land Registrar was allowed his costs.