SUPREME COURT—IN BANCO.

New Zealand Times, Volume XXXII, Issue 5031, 9 May 1877, Page 3

SUPREME COURT—IN BANCO.

Tuesday, May 8. (Before His Honor Mr. Justice Richmond.) wobGan's trustees v. cabd. Mr. T. Hutchison for plaintiff; Mr. Travers for defendant. Mr. Justice Richmond said: The only issue 3 joined in this ca3e were tried by me without a jury at the late Wanganui Circuit Court, the only questions between the partie.s being substantially questions of law. Many objections were made on the part of the defendant to the title of the plaintiffs as trustees in liquidation, under the Act of 1875, to revive a decree in a partnership suit instituted by the liquidation debtor. On some of these points I reserved my judgment, and there is one which I think must prevail. It appeared that the total number of creditors (exclusive of secured creditors who had not valued their securities) was 58. Of these, 42 were creditors to the amount of £lO and upwards, and 16 to amounts below.6lo. The liquidation resolution, or what is relied upon a-i such, was passed at a meeting at which 26 of the former class of creditors and 12 of the latter were present. Twenty-three of the former class voted for the resolution, the other 3 creditors of £lO and upwards and the 12 creditors under £lO did not vote at all. The plaintiff relied upon rule 35, under which creditors under £lO are not entitled to vote. I think, however (and lam only expressing the general opinion of the Judges), that this rule was ultra vires, and that the 12 creditors must be included in the computation of one half of the whole body of creditors under the Ist sub-section of the proviso to section 28. The consequence is that tie st»mber voting (viz., 23 out of 58) was inBufßcfent.and the liquidation resolution must be considered void. A fourth question arises whether this defect is cured by the provision of the 3rd section of the Debtors and Creditors Act, 1876, which provides that an appoinment "shall be valid notwithstanding any irregularity or informality in any of the proceedings connected with such appointment;" but I think this defect is one beyond the meaning of the words "irregularity and informality" mentioned in the Act. I think it is outside the provision, therefore I uphold the objection, and order verdict to be entered for defendant.

(Before their Honors the Chief Justice and Mr. Justice Richmond.) BCO&EKIDGE V. WAHDELL. This was a motion for an injunction. Mr. Barton (for plaintiff) said tho other Bide, represented by Mr. Bell, had agreed to an interim injunction, eo that he would only trouble the Court to made a formal order to that effect. Order made accordingly. JONES V. THE PUBLIC TRUSTEE. Mr. Travers said the proposed decree in this case had been agreed to, so that there was no necessity for further proceedings if the Court would make the decree as agreed between the parties. , The Chief Justice inquired what made such a snit necessary? Mr. Travers said it seemed there was nothing in the haiids of the trustee but real estate, and ho could not administer the real estate until a suit was brought against him. Mr. Justiee Richmond: It is time then that the law was altered.

Mr. Travers :No doubt. It was probably an oversight on the part of the Legislature. A question arose as to whether there had been every effort made to discover tho heir, if any, and Mr. Travers, who stated that he had had nothing to do with the matter before he came into Court that morning, said he should be glad if the Court would allow the matter to stand over till next Couit day, and in the mean time ho would make full inquiries, so as to satisfy their Honors on the poitit. Tho case was accordingly ordered to stand over.

Several other cases wero mentioned, but postponed. The Court then adjourned.