SUPREME COURT.

Hawke's Bay Times, Volume 19, Issue 1404, 17 August 1872, Page 2

SUPREME COURT.

(Befpre His Honor Mr. Justice Johnston.) FUTDAY, 16th AUGUST. Jn Banco. In the matter of Elreingan v. Sutton His Honor upheld the decision of the District Court, on the point reserved on Saturday last, whether Mr Sutton had waived his right of notice in his conversation with Mr Lyndon. His Honor, having considered the subject, and consulted a number of authorities, still held that due notice had not been given ; but on the reserved point he decided that Mr Sutton, in the terms, "I will see it all right," used in conversation with Mr Lyndon, had distinctly waived his right of notice. On this therefore, the appeal must be rejected. The decision in the District Court (which was given principally on this ground) w T as therefore confirmed. Re J. p. Qrniond, Superintendent, v. Smith. Mr Wilson appeared for plaintiff; defendant was unrepresented. Mr Wilson moved for judgment in default of plea* The action was to recover possession of a piece of ground, with rent amounting to .£124. Mr Wilson Said the writ which he had served on the party was not quite in due form under the circumstance that it was SPAurirt to recover possession, of the

land ; but the error was not a serious one, and would not, so far as he could see, vitiate the proceeding. He would be content to have judgment entered at his own peril.—His Honor entirely differed from Mr Wilson. The informality of the writ was a fatal objection to the application, as a judgment* upon it would be liable to reversal, being bad in error. He would enter judgment, at Mr Wilson's peril, in respect of the rent due; but not of the recovery of possession of the land.—Judgment entered accordingly. Re Joshua Cuff, a bankrupt—Mr Wil:son asked for an order calling upon the Judge of the District Court to issue a warrant to compel the attendance of the bankrupt, at present in contempt. A good deal of conversational discussion ensued upon this application. Mr Wilson would have greatly preferred that the proceedings should be transferred entirely to the Supreme Court; but his Honor, for reasons already stated, refused altogether to agree to this proposition; whereupon Mr Wilson predicted that his Honor would find this case cropping up in the Supreme Court in many different forms, before it was finally settled—a suggestion which did not have the effect of causing the learned Judge to alter his decision. Two affidavits were read—one from the bankrupt, advancing sundry excuses for his disobedience of the order of the District Court, one of which was that his failui'e to appear was agreeable to an arrangement with his trustee, Mr Lyndon. His Honor thought Mr Cuff had not improved his case by this affidavit. The other affidavit was one by Mr Lyndon, in which the statement concerning the alleged arrangement, as well as other assertions in the bankmpt's affidavit, were denied in toto. Mr Lyndon's affidavit went on to state that he had reason to believe that on the occasion of Mr Cuff's recent departure from Napier, he had taken away furniture and other property to the value of .£7O. In addition, too, to other trust monies unaccounted for, which had been mentioned on previous occasions, it had very recently transpired that the bankrupt had received in 1809, from an English firm, the sura of £llß in trust, which had not been returned in his statement of assets. —His Honor said that the learned Judge of the District Court evidently doubted his jurisdiction, the Act apparently not being very clear on the subject. Before the order now applied for could issue, Mr Wilson must make out that the District Court did really possess the requisite jurisdiction. —Mr WiNon thought the 121st section met the —His Honor coincided with Mr Wilson in this view, and would therefore giant a rule. Regarding the application for a transfer of proceedings, Mr Wilson had no ground whatever unless he could show that the learned Judge below had been clearly wrong in point of law. —Mr Wilson said this was precisely where his difficulty lay. Tt was quite impossible to show that the District Judge had done anything wrong in the matter —His Honor said that in that case, as a matter of course, there could be no tangible ground for such an application.—Rule nisi granted, returnable at Wellington on the 24th September, calling on his Honor the District Judge to show cause why an order should not issue calling upon him to issue a warrant under section 121 of the Bankruptcy Act, for the apprehension of the bankrupt.

In the matter of the Native Lands Act, 1870. Mr Towgood, appellant (represented hy Mr Wilson); Mr M'Kinnon (represented by Mr M'ln tyre) respondent. This case was brought on last Saturday, and was then adjourned. It was an appeal against a recent decision of the Trust Commissioner, who had passed a deed of respondent's, and refused to certify one relating to the same property in favor of the appellant. M> Wilson sought to obtain a reversal of the Commissioner's decision on three grounds 1. That the evidence taken by him was not upon oath. 2. That it was taken in the absence of the appellant. The third ground related to the subject of native reserves in the block, and, as Mr Wilson required explanation.—Mr M'lntyve l'aised a preliminary n.bj,eQ tion. The Trust Commissioner should have Ueeii i»a4e a pai'ty to. the proceed-

ings.—His Honor said that the absence of rules for the guidance of the Commissioner's Court was a source of great in* convenience in cases of appeal. Ho considered it very desirable and important in the interests of the parties affected that when the rules were framed they should provide that in all cases of appeal the Trust Commissioner should receive due notice to appear. He noted the objection. The. CotomfesiQiier, he observed, was now in attendance, and would no doubt assist the inquiry bjr furnishing any information required.— Mr Turton (who appeai'ed in banister's dress) said he wished to iuform the Court respecting certain matters of feet* hut not otherwise to take part in the proceedings.—His Honor said that Mr Turton being a member of the profession, there could be no objection to this course.—The Commissioner stated that the practice in his Court had not beea to take evidence on oath except in casesof dispute. The Act gave the Commissi oner the power to administer oaths;; but did not, in his opinion, require him to do so except where it appealed neoessary. When the inquiry now under consideration was commenced, Mr M<Kinnon,and Mr Maddock, appellant'ssolicitor, agreed that the usual practice should be "followed.—Mr Wilson aut> initted that the Act required the testimouy to be upon oath, and consent, could not set aside an express provision. He also urged his second objection—that evidence had been taken in the absence of appellant.—His Honor said if the Commissioner had not the power totake evidence in the absence of parties,, it vas very necessary that he should possess such power. The measure was intended to be of an inquisitorial kind ; and eases might frequently happen in which the absence of witnesses interested during an examination would be conducive to public justice.—The Commissioner said both parties had consented that he should examine the parties in* the course of a journey to Wairoa. The appellant had full notice of the examination. —Mr Wilson said that the appellant had declined to attend. He had signified that he wished the examination to take place in the Commissioner's. office at Napier.—His Honor said that it seemed that the appellant was designedly absent after due notice. HeHurclv did not assume to dictate to the Commissioner where that gentleman should hold his examinations.— MrWilson said certainly not; bub he ob~ jected to the investigation in the absence of the parties concerned. Some of the witnesses were examined in MrM'Kinnon's own house.—The Commissioner said it was entirely by consent on both sides that these witnesses were examined in the absence of parties. On. the 11 tii of last August three witnesseswere examined in Mr Towgood's house at Tongoio, in the absence of the respondent.— Mr Wilson said the Commissioner's decision was against evi. denee in the matter of native reserves; Mr Towgood's deed, which was the earliest in point of date, was disallowed on account of the absence of native reserves, an omission which he was quite prepared to supply. Mr M'Kinnon's deed was not the *ame as originally drawn; he had been allowed to withdraw it from the office and amend it.—The Commissioner said that upon entering into office he lound both deeds awaiting investigation, having been sent in fui certificate during his predecessor'* term of office. In Mr Towgood's deed there was no reserve provided for the original owners, as required by law ; in respondent's deed from 100 to 150 acres of the most fertile land in the block was reserved for tLeii lament. During (Mr Turton*s) term of office he had never allowed the deed to leave his custody, nor could he believe that such an irregularity would have been tolerated by his predecessor.—His Honor entirely failed to see the slightest ground for the last objection raised hy Mr Wilson. Mr Turton had done exactly what appeared to be his duty under the Act; and in full accordancewith its provisions had passed a deed allowing ample reserves for the support os the original owners, while recusing, hi* certificate to another relating to thesame land which would deprive them of their means of subsistence. A uioie clear and distinct instauce of the duties, of the Commissioner properly executed he could not wish to have. Mr Wilson was sorry bis Honor had ruled against

him; but must urge his original objections. —His Honor replied that the second objection must on the ground of consent.—Mr Wilson said this could not apply to his first objection, as consent could not alter a fundamental irregularity.—His Honor held that the Commissioner was not bound to take evidence upon oatli ; but on this point it was open to Mr Wilson to appeal. The questions for appeal would thus be : Was it the intention of the Legislature that the evidence before the Commissioner must be taken oath? Does the fact of the oath being omitted invalidate proceedings, even when it is by consent?—Application rejcccod—Mr Wilson expressed his intention of appealing, on the ground above given.