SNUBBED BY HIS HONOR.
A case of considerable, importance to trustees in bankruptcy, at the termination of which Mr Stewart M.11.E. and barrister of Dunedin, was severely lectured by Judge Johnston, was heard in the Supreme Court Dunedin, in banco on Thursday; The proceedings arose out of the case —Creditors’ Trustee in Henry’s estate v. Walden and others.
The matter came before the Court on a motion to dismiss the action for want of prosecution, and resolved itself into a question of costs. The original suit was brought by the creditors’ trustee to set aside a deed of settlement made by the bankrupt, on the ground that it was fraudulent. The jury answered some of the issues in favor of the plaintiff, but on the main issue found that there was not sufficient evidence to show intent to defraud. When the motion was called on it appeared that the plaintiff was willing to abandon the action, but it was contended (1) that on the merits of the case no costs should be granted ; (2) that if costs were allowed the trustee was not personally liable, but only liable in his official capacity, and to the extent of the bankrupt’s assets ; (8) that the formal defendant was not entitled to costs, as no relief against him was asked for; and (4) that the costs of the motion should be allowed, the point being a new one. On all these points the Court decided against the plaintiff, and made an order tuat Mr Asher, the creditors’ trustee is personally liable for the costs if unsuccessful in litigation commenced by him. After Judge Johnston and Judge Williams had both delivered judgment Mr W. D. Stewart urged that costs in the present case should not be allowed. Mr Justice Johnston —I think it is exceedingly undesirable, that these small matters of costs should be raised after the judgment of the Courthasbeen given. Mr .Stewartr-These matters are not small.
Mr Justice Johnston —There is no question of principle involved. Mr Stewart—lf this matter had been disposed of in Chambers the costs would have been £3 or £4. Now they will be £3O or £4O. Mr Justice Johnston —I am very sorry to hear it. They ought not to be. Mr Stewart said that the costs of tbe issues on which they had succeeded should be set off on those on which they had failed. . Mr Stout objected to this, as it had not been raised during the argument. Mr Justice Johnston—l for one would protest against this kind of struggling, after judgment has been delivered, to avoid some of the consequences. Mr Justice Williams coincided. Mr Stewart—l am sorry your Honor refuses to hear me upon the question. Mr Justice Johnston —Mr Stewart, I I do not think you ought to say these things. You may complain as much as you like to your friends out of the Court of the way you are treated but when a judgment has solemnly decided a matter like this it is improper for you to make such remarks, and I never tolerate them. I may say that from the highest practitioner in the Colony down to the youngest I shall never permit such a thing. Mr Justice Williams—lt would never be tolerated elsewhere. Mr Justice Johnston —In that part of the world where I have had the honour to practice a man would be scouted who would persist in it. Do not misunderstand me. Ido not mean to say that it is not the practice for counsel, after the decision of the Court,to respectfully submit that something has been omitted or overlooked ; but when the Court has once decided on a point fairly put before it, to reflect on its decision, and to insist on something further, ought not to be done. Mr J ustice Williams—Quite so. Mr Stewart collapsed.
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South Canterbury Times, Issue 2460, 5 February 1881, Page 2
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642SNUBBED BY HIS HONOR. South Canterbury Times, Issue 2460, 5 February 1881, Page 2
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