SUPREME COURT.

Globe, Volume XXIII, Issue 2408, 23 December 1881, Page 3

SUPREME COURT.

IN BANCO. Thursday, December 22. [Before His Honor Mr Justice Johnston.] WILLIS V VINCENT, TODHUNTBR, AND FLANAGAN. This was a case stated by consent of parties for the opinion of the Supremo Court. Mr Joynt, who appeared for the plaintiff, opened tire case, and said that the notion had been one for possession of land and mesne profits. The declaration had set out a lease bv the plaintiff to the defendants, Messrs Vincent and Todhunler, of a piece of land in the Malvern district of about two acres in extent, on which were situated an hotel and other buildings, now in the occupation of the third defendant. Michael Flanagan. The boundaries of this land had been wrongly described in the lease, and the case would probably turn on the right of the defendants to adduce parol evidence of this at nisi prius. At this stage his Honor remarked that Messrs Vincent and Todhunter seemed to be unrepresented by counsel. Mr Joynt had been informed that their counsel, Mr Button, was absent from Christchurch. He fancied, however, that that gentleman had cause not to care a button about the case, and that his clients were equally indifferent, inasmuch as they really had no practical interest in it. Mr Harper, who appeared for Flanagan, knew nothing of Mr Button’s movements, but could tell the Court that the interest of Messrs Vincent and Todhunter in the case was a substantial one. Mr Deacon asked permission to state, on behalf of Mr Button, that the latter’s absence was entirely due to a misapprehension of the date fixed for the sitting of the Court. Under these circumstances, his Honor ordered the case to be adjourned peremptorily. SUTTER V CABOT. Demurrer to a replication. Mr G. Harper for plaintiff. Mr Joynt, for the demurrer, stated that in this action the plaintiff by his declaration has claimed specific performance of a purchasing clause in a lease, by whioh the defendant Cabot had covenanted to convey to Sutter some land in the Timaru district on payment of the sum of £l2O on or before October 12th, 1879. The plaintiff alleged that ho had done this, but that defendant had refused to convey. In answer, the defendant (Mr Joynt’s client), had pleaded that plaintiff had not tendered the £l2O at the proper time, and to this the plaintiff had replied that he had not done so because the defendant had excused him, and had, in fact, induced him not to do so. The demurrer, therefore, took exception to the replication as being inconsistent with the declaration. In the latter the plaintiff bad takeu his stand on his legal right derived from the covenant in the lease. But in the replication he had changed ground, and relied on an equitable claim. Now, Rule 64 provided that a plaintiff should not in his replication thus set up a new cause of action.

Mr Harper quoted Hall v Eve, 46 L. J. Chancery 145, but as it appeared that this referred to a rule under the English Judicature Act, his Honor thought it distinguishable from the present case, which was closely allied to that of Brogden v The Queen, decided at the last sitting of the Court of Appeal. He, therefore, allowed the demurrer on the ground of the departure of the replication from the declaration. Leave was given for plaintiff to amend by withdrawing the replication.

FRANCE T. BTHAD AND OTHERS. Mr Q. Harper, on behalf of the plaintiff, made an ex parte application for leave to appeal to the Privy Council. The question for consideration was whether the Court had power to grant this. It was true that the case bad been heard at the Court of Appeal, but Spence v Pearson 3, N Z. Jurist 1, had decided that where a Supreme Court case was, by consent of the parties thereto, taken up to the Court of Appeal, the latter Court did not become seized of it, and in the event of an appeal being desired to the Privy Council, leave had to be obtained from the Supreme Court, as though the case had remained there. The English Order-in-Oouncil of 1871, with regard to appeals from New New Zealand to the Privy Council, only appeared to refer to Court of Appeal oases. There was, however, an earlier Order-in-Council, dated May 10th, 1860, by whioh the right of direct appeal from the Supreme Court was given. If the Court thought that the latter Order had not superseded the earlier one, they would grant his application. His Honor agreed with Mr Harper’s view of the matter, and granted leave to appeal, subject to satisfactory security for costs being given. in be h. c. young. This was an application by Mr Q. Harper to have a deed of assignment made by the above debtor declared void os against certain creditors. These creditors were James Eardley Hill, John Tucker Ford, and Charles Newton. He also asked that leave bo given them to issue execution against Young for their costs in an action successfully maintained by them previous to the date of the assignment. The grounds for the application as slated in an tfildavit by Mr Newton, were that the debtor had fraudulently omitted from his statement of assets a valuable right of action, on which one Edward Reece had shorty afterwards advanced him no loss than £7OOO. This right of action was at the time of the assignment still sub judice, therefore the debtor must have known its value.

Mr B. Coke, for the debtor, submitted that as the right of action spoken of was one against the complaining creditors themselves, the latter had no right to lie by and allow the deed of assignment to be executed. The oases in whioh compositions were declared void all turned on fraudulent concealment of property by the debtor from the complaining creditors. This oould not apply here, for the creditors must necessarily have been equally cognisant with the debtor of the existence of the right of action. He quoted ex parte Linsloy in re Harper, L.R. 9, oh. Appeals, 290. His Honor did not think that fraud or gross negligence on the debtor s part could bo said to have been proved ; and in consequence dismissed the application, though without costs.

■WILDBBMOTH V. KEABT AND I£*CABTHY. This was an appeal from an order by the clerk to the District Court in the Oamaru■fimaru district, adjudicating the plaintiff a bankrupt. Mr Stringer appeared for the appellant, but Mr G. Harper for the respondents took the objection that he had no locus standi, as his notice of appeal had not been given within three days of the adjudication as required by rule 13 of the rules under the Debtors and Creditors Act, Mr Stringer submitted that the rule was ultra vires, as being in conflict with the Act itself, the 17th section of which allowed twenty-one days in which to appeal. Mr Harper replied that section 19 gave power for rules to be made to regulate all matters of practice under the Act. This was a matter of practice, see Vivian v Quick Court of Appeal Cases 339. Ultimately Mr Harper consented to waive the objection to appellant’s locus standi. The latter showed no satisfactory grounds for his appeal, beyond disclosing a most objectionable method on the part of the respondents in transacting bankruptcy business. His Honor dismissed the appeal, commenting at the same time most severely on the state of things disclosed, and on the policy of the Debtors and Creditors Act, which gave clerks and their deputies the powers of judges in bankruptcy matters.