SUPREME COURT.—SITTINGS IN BANCO.

New Zealand Times, Volume XXX, Issue 4317, 21 January 1875, Page 2

SUPREME COURT.—SITTINGS IN BANCO.

Tuesday, January 19. (Before His Honor Mr. Justice Johnston.) DIVE V. ESPAGNE. Mr. Hutchison for the appellant, Mr. Izard for the respondent. The case submitted for the consideration of the Court failed to show what were the points raised before the magistrate at Wanganui, before whom the case was head, and his Honor therefore ruled that as it was not in proper form it must be remitted to the ,Resident Magistrate to state what points of law, if any, were raised at th* trial. HANDLEY V. BROADBENT. Mr. Hutchison for the appellant, Mr. Izard for the respondent. This also was an appeal from a decision of the Resident Magistrate’s Court, Wanganui. After a short argument the appeal was dismissed with costs. ODGERS V. BORLASE AND NOAKE, EXECUTOR* IN THE ESTATE OP PERU AM, SOLICITOR. Mr. Shaw and Mr. Hutchison for the plaintiff ; Mr. Izard for defendant. This was a friendly suit on a case stated by the consent of the parties under an order of Lis Honor in December last. Though the legal points involved were somewhat technical and difficult, the facts are intelligible, and'*tf from them nature have an interest for the public. A sum of £lls had been entrusted by Odgers to Mr. Perham, as his solicitor, to pay off a mortgage held by Captain. Daniels, which sum Perham, instead of so disposing, paid into his own account with his banker. He then became insolvent, and after his discharge he gave to the plaintiff, who had not proved as a creditor on the estate, a promissory note at twelve months date for the amount, at the same time depositing as a collateral security an inchoate policy of insurance in the Government Office. He also at the sametime wrote plaintiff a letter agreeing to assign to him this policy when called upon to do so. Perham afterwards, on a representation that he wished to have an endorsement of his birth put on the policy, got the document out of the personal control of the plaintiff, and then instead of returning it, as he promised, he assigned it to Mr. Izard as security for a debt, of £2OO. The note was also dishonored at maturity. The question for the Court was whether under these circumstances plaintiff was entitled to any priority over the other creditors on the estate, the funds in the hands of the executors not being enough for all,, though more than enough remained of the £SOO fruits of the policy to satisfy Odger's claim. It was argued by Mr. Shaw that as the liability was originally incurred by fraud, and plaintiff had not elected to prove against the estate, the claim survived the bankruptcy—that the note subsequently given, and the policy deposited, whatever might be their value in themselves, were merely meant by Perham as collateral security for a claim of which he knew he could not disburthen himself. Parker v. Crole, 5 Bing. 63 ; Parker v. Norton, 6 T.R. 695. It was contended that the letter accompanying the deposit of the policy gave the plaintiff a good equitable right to come to the Court for specific performance of the agreement to assign, and he also had a lien on the policy. His own further acts of fraud deprived plaintiff of both these remedies. To allow his executors to avail themselves of the fruits of the.policy now in their hands, would be to permit Perham, through his representatives, to take advantage of his own wrong. Lapse of time made no difference, and the executors are in no better position in these respects than himself. Smith v. Pococke, 28 L. J. Ch. n.s. 545. In case of breach of trust, if the trustee become bankrupt the loss may be proved by him as a debt against his own estate, and if he neglect to do so he remains liable. Bick v. Motley, 2 M. and K. 312 ; Orret v. Corser, 21 Beav. 52. Mr. Izard, for the defence, contended that the accepting of the note by Odgers from Perham, after the discharge of the latter, placed the liability on the new ground of contract; ' he chiefly relied on the facts that Odgers, sleeping upon his right, had never called upon defendant- to complete the assignment of the policy, and that there was no notice given to the office. He did not press the case, but quoted Ryall v. Rowl, 2 W. and T. L.C. 664 Yates v. Groves, 1 Vesey jun. 230 ; Ex parte Alderson, 1 Maddock ; Thomson v. Spiers, 13 Simon 469 ; Waldron v. Sloper, 1 Drew 193. His Honor, considering the case both ■obscure and important, reserved judgment to a future day. HAWKE V. FRETHEY. An appeal from the decision of the Resident Magistrate’s Court at Greytown, in an action for the recovery of rates, which was resisted on the ground that the Road Board was improperly constituted, owing to an irregularity in the election of some of its members, and therefore had no power to recover rates. His Honor, after hearing argument, held that the Board had power to recover rates notwithstanding the informality in the election. The appeal was therefore dismissed with costs. Mr. (Jordon Allan, who appeared for the appellant, obtained leave to take the case before the Court of Appeal Wednesday, January 20. OHORTON V. JACKSON. Mr. Izard for plaiutiff, Mr. Hutchison for defendant. Mr. Izard applied for a decree in this case, which was granted by consent. MASEY-V: ‘BUTTON. In this case an injunction was, by consent, ordered to issue. BRIDGE V. FOREMAN. This was a special case stated for the opinion of the Court. The case arose out of a diffiulty in construing the will of Stephen Foreman, late of Wanganui, in consequence of which James Bridge and John Morgan, the trustees under the will, brought an action to restrain Mary Foreman, the relict, from interferance in the management of the estate. Mr. Hutchison appeared for the plaintiff, Mr. Ollivier for the defendant. The following is the case stated : 1. The plaintiffs are the trustees named in the will of the late Stephen Foreman, of Wanganui, in the province of Wellington, deceased, which said will is in the words and figures following : This is the last will and testament of me, Stephen Foreman, of the Grange farm, near Wanganui, farmer. I give, devise, and bequeath unto James Bridge, of Wanganui, salesman, and John Morgan, of the same place, farmer, all my real and personal estate, whatsoever and wheresoever, upon trust, to set apart such part of my personal estate as they shall find necessary, and devote the same—subject as hereinafter mentioned—to the liquidation of the necessary expenses in and about the carrying on and managing of my farm, consisting of the Grange and certain land ad joining it recently purchased by me from Harry Macdonald. And further to hold my said real ami personal estate upon trust t»

permit my dear wife, Mary Foreman, to occupy the same, and to receive the rents and profits »,ncl proceeds arising therefrom for her life, or so long as she shall remain my widow and unmarried. • Subject nevertheless to the trusts herein contained 'or the purpose of purchasing Grange farm. I direct my trustees, out of my personal estate (anil if they shall find it necessary, but not otherwise), by the sale of certain of my real estate (not being part of my farm), which I empower them to sell for that purpose, to purchase the fee-simple of the Grange farm so soon ng they can conveniently do so. And I declare that, if it be necessary to sell any portion of my real estate for that purpose, it shall not be incumbent upon any purchaser to inquire into the necessity for the sale thereof. I desire to direct my wife during her life, and so long as she shall reap any benefit from my estate, to provide for the maintenance, education, and support of my children until my daughters shall be married, and until my sons shall attain the aga of twenty-one years. Upon the death or subsequent marriage of my wife I direct that my trustees shall stand possessed of -my said farm, consisting of the Grange and the land adjoining, so purchased as aforesaid, upon trust, together with all the sheep and cattle and stock thereon at the time, for my son Stephen Foreman and his heirs, subject to and reserving thei-eon a rent charge of £SO per annum for my daughter Ellen, and £SO per annum for my daughter Harriett, during their respective lives, paya'le half-yearly. And I vest in my said trustees, for the purpose of enforcing and retaining such rent charge, all_ the powers of distress and otherwise vested in a landlord as against his tenant. And further, after the death or subsequent marriage of my said wife I give, devise, and bequeath all the rest, residue, and remainder of my said estate, both real and personal, to ray trustees upon trust for my two daughters Ellen and Harriett equally as tenants in common. And I declare that any benefit under this my will accruing to my said daughters or either of them shall vest in them or either of them free from the interference and control of any husband with whom they may intermarry. And if either of my said daughters shall die under the age of twenty-one years without having issue, her share in the benefit of this my will shall go, and all her share, whether real or personal, shall go to my daughter surviving. And I empower my said trustees during the life of my said wife, and until her subsequent marriage, with her consent, and after, during the minority of any of my said children, to invest any moneys accruing from my said estatg in such a manner as they shall think best for the advantage of my legatees and devisees. And also to lease any part of my real estate for any term not exceedin<r twenty-one years at the best rack rent, and subject to such covenants as can best be obtained and reserved for the benefit of the estate. Lastly, I hereby appoint James Bridge and John Morgan executors and trustees of this my will. And I hereby revoke all former wills and codicils by me at any time made. In witness whereof (&o.), S. Foreman. 2. The plaintiffs proved the said will in the Supreme Court of New Zealand, Wellington district, on or about the 9th day of October, 1868, and have since continued to act aud are still acting as the trustees under it. 3. The only persons beneficially entitled under the will are the defendants, Mery Foreman, who still remains a widow, Ellen Anderson, her eldest daughter, who is married and over age, and Harriett Foreman, the second daughter, and Stephen Foreman, the. only son of the deceased, both of whom are under age. 4. Besides the property particularly referred to in the will, the real estate comprises other properties both in the town and district of Wanganui. 6. From the time of the death of the testator the plaintiffs have held the entire management of the real and personal estate devised by the -will, and have from time to time appointed managers of the country property, and receivers of the rents of the town property, and they still continue to exercise such management, and the trustees are of opinion that the course hitherto adopted in this respect is most advantageous for the of the persons entitled under the will, whilst the defendant, Mary Foreman, contends otherwise. 6. The trustees have carried out the expressed desire of the testator by acquiring the fee simple of the Grange farm, and for this purpose, after exhausting such means as were at their disposal (including the proceeds of part of the real estate sold-by them), the plaintiffs raised the.sum of £975 2s. lldii with the intention of paying off the same out of the income of the testator’s property,by instalments extending over a period of years, a course which was concurred in by the defendant, Mary Foreman, but the repayment is not yet completed, there being at present a balance of £242 4s. lOd. outstanding in respect of the •aid advance. 7. Until recently, the defendant, Mary Foreman, has resided in the town of Wanganui, but is now residing at the Grange, and now claims to have the management of the real and personal estate of the testator during her life, so long as she continues unmarried, including the management of the Grange farm and the lands adjoining, and to he entitled, without the intervention of the trustees, to receive the income arising therefrom ; but the trustees believe that they are not justified by the terms of the will in allowing her to do so, and have accordingly refused to do so. They therefore claim an injunction to restrain the defendant, Mary Foreman, from such interference as aforesaid. Under the above circumstances the following question is submitted for the opinion of the Court : 1. Is the defendant, Mary Foreman, entitled during her lifetime, so long as she continues unmarried, to the management of the real and personal estate of the testator, including the “active management of the Grange farm and the lands adjoining, without the interference cf the trustees of the wilt 2. If not, an injunction to issue as prayed. Coats of all parties to be paid out of the estate. , Counsel having addressed the Court, His Honor said that in a case involving the construction of a will it was always better to bring more than one judicial mind to bear upon the subject. He did not see his way to come to a conclusion unaided, and he would, therefore, suggest that the case should be referred to the Court of Appeal. Counsel consented to this course, and judgment was reserved. IN BANKRUPTCY. Itß JOHN STRATFORD. Mr. Izard made an application for the bankrupt’s final discharge, which was opposed by Mr. Gordon Allan, on behalf of Mr. George Thomas, a creditor. Bankrupt was formerly a publican at Kaiwarra, and attributed his failure to bad debts contracted with the navvies employed on the Hutt railway. Under examination, it appeared that no books were kept to show how the bankrupt conducted his affairs. Mr. Allan said it was very evident that the bankrupt had conducted his business in a very reckless manner, and he hoped his Honor would mark his disapproval of such conduct by suspending the bankrupt’s certificate. His Honor thought" it would be a sufficient mark of disapprobation of the bankrupt’s manner of conducting his business if his final ' discharge were postponed for a month. Order made accordingly. ■ EE WM. MOULD. The bankrupt, who lately carried on the business of draper on Lambton-quay, was subjected to a short examination by Mr. Ollivier, who opposed on behalf of Messrs. A. P. Stuart and Co., but as the accounts were not satisfactory the case was ordered to stand over till next sittings. The Court then rose. VICE-ADMIRALTY COURT. THE BTEATHNAVER CASE. Counsel for tho owners of the ship Strathnaver having served a monition upon the alleged salvors, calling upon them to show " cause why the decree of the Court as to' demurrage and costs should not be carried into execution, on the captain and owners giving bail for demurrage and costs, and also for the further costa of the appeal

to the Judicial - Committee of the Privy Council, the present proceedings resulted. His Honor gave the proctors for the ship leave to proceed with tho decree on giving bail for the sum of £IO,OOO, pending the result of the appeal. The Court then adjourned.