SUPREME COURT.

Lyttelton Times, Volume LVI, Issue 6497, 23 December 1881, Page 3

SUPREME COURT.

IS BANCO. Thttesdat, Deo. 22. (Before Hie Honor Hr Justice Johnston.) WILLIS ▼. VIKOBKT, TODBDBTBB, ABO FLABAOAB. This was a case stated by consent of par* ties for the opinion of the Supreme Court. Mr Joynt, who appeared for the plaintiff, opened the case, ana said that the notion had been one for possession of land and mesne profits. The declaration had sst oat a lease by the plaintiff to tho defendants, Messrs Vincent and Todhnnter, of a pieoe of land in the Malvern district of about Into acres in extent, on which wore situated an hotel and other buildings, now in the occupation of tho third defendant, Michael Flanagan. Tho boundaries of this land had been wrongly described in tho lease, and the case would probably turn on the right of the defendants to adduce parol evidence of this at kisi priu #. At this stage Bis Honor remarked that Messrs Vincent and ' r odhnnter 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 core 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, know nothing of Mr Sutton's movements, but could tell tho Court that the interest of Messrs Vincent and Todhnnter in the ease 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 tho Court. Under these circumstances, His Honor ordered tho case to be adjourned peremptorily. BCXTBB V. CABOT. Demurrer to a replication. Mr G. Harper for plaintiff. Mr Joynt, for tho demurrer, stated that in this action the plaintiff by his declaration has claimed specific performance of a purchasing clause in a lease, by which the defeudant Cabot had covenanted to convey to Sutter some land in the Timoru district on payment of the sum of £l2O on or before October 12,

1879. Tho plaintiff alleged that he had done thin, bat that defendant had refused to convoy. In answer, the defendant (Mr Jeynt’s client), had pleaded that plaintiff had not tendered the £l2O at the proper time, and to this the plaintiff bad replied that ha 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 tho replication ae being inconsistent with the declaration. In tho latter the plaintiff had taken his stand on his legal right derived from the covenant in tho lease. Bat in the replication he had changed ground and relied on an equitable claim. Now, Buie 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 146, out 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 Brogdon v. The Queen, decided at the last sitting of tho Court of Appeal. He, therefore, allowed tho demurrer on the ground of the departure of the replication from the declaration. Leave wae given for plaintiff to amend by withdrawing the replication. VJUNOK T. OTBAD AKD OTHBBB. Mr Q. Harper, on behalf of the plaintiff, made an parte application tot leave to appeal to the Privy Council. Tho question for consideration was whether the Court bad power to grant this. It was true that tho case had been heard at the Court of Appeal, but Spence v. Pearson, 3, N Z. Jurist 1, had decided that whore a Supreme Court case was, by consent of the parties thereto, taken up to the Court of Appeal, the latter Court did not become seined of it, and in the event of on appeal being desired to the Privy Council, leave had to be obtained from tho Supreme Court, n« though the case had remained there. The English Order-ln-OounoU of 1871, with regard to appeals from New Zealand to the Privy Council, only appeared to refer to Court of Appeal cases. There was, however, an earlier Order-in-Council, dated May 10, 1860, by which the right of direct appeal from the Supremo 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 tho matter, and granted leave to appeal, subject to satisfactory security for costs being given. in mi a. o. TOOKO. This was an application by Mr Q. Harper to have a deed of assignment made by the above debtor declared void as against certain creditors. 'J base creditors were James Kardley Hill, John Tucker Ford, and Charles Newton. He also asked that leave he given them to issue execution against Young for their costs in an action successfully maintained by them previous to the date of the assignment. Tho grounds for tho application as slated in an affidavit 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 shortlv afterwards advanced him no less than £7OOO. This right of action was a*, the time o! the assignment still sn6 Jaitiee, therefore the debtor must have known it* value. . Mr K. Coke, for the debtor, submitted that a* tha right of action spoken of was one

against the complaining creditors themselves, the latter hod no right to lie by and allow the deed of assignment to bo executed. The cases in which compositions were declared void all turned on fraudulent concealment of property by tbo debtor from tbo complaining creditors. Ibis could not apply hers, lor the creditors must necessarily have been equally cognisant with (ho debtor of the existence of the right of action. He S noted «K parte Lisiley im re Harper, L.B. , oh Appeals, 290. Mis Honor did not think that fraud or gross negligence on the debtor's part could bo said to have been proved j and in consequence dismissed the application, though without costs. WIUDgKKOtH V. IRA (W AWO M'OAMBT. This was en appeal from on order by the dork to the District Court in the OatnaruTimarn district, adjudicating the plaintiff a bankrupt. Mr Stringer appeared for the appellant, but Mr O. Harper for ibo respondents took (be objection that he hsd no hew thndi, at his notice of appeal had not been given within three day*, of the adjudication as required by rule 13 of (he rates under the Debtors’ and Creditors' Act. Mr Stringer submitted that the rule was ultra virtu, as being in conflict with the Act itself, the 17th section of which allowed 21 days in which to appeal. Mr Harper replied that section 19 gave power for rules to be mads to regulate all matters of practice under the Act. This was a matter of practice, *»e Vivian v. Quick Court, of Appeal Oases 339. Ultimately Mr Harper consented to waive the objection to appellant’s hem ttaadi. 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 tbs Debtors’ and Creditors' Act, which gave clerks and their deputies the powers of judges in bankruptcy matters.