THE "SECRET" CASE

Taranaki Daily News, Volume LIII, Issue 270, 5 April 1911, Page 5

THE "SECRET" CASE

BEFORE THE APPEAL COURT. . Reference to a much-discussed trial, in which the Hon. T. Kennedy Mac Donald is interested as a trustee of the Greenfield estate, is made in a Press telegram published on page seven of ithis issue. The following is an abridged HISTORY OF THE CASE. The proceedings in the Supreme Court have hitherto been conducted strictly in camera, the public and the reporters being excluded, and the newspapers being forbidden even to mention the case. The action began early in 1907, when the plaintiffs (the beneficiaries) instituted a suit for accounts. The defendant produced accounts purporting to show that the estate was his debtor to a considerable amount. The accounts were examined before the Registrar of the Supreme Court at numerous sittings, with the result that it was finally established that the defendant was largely in debt to the estate. A supplementary order for production of accounts from the end of 1908 onwards, covering the period during which the investigation had been in progress, was then obtained, ami after a further large number of sittings of the Registrar it was found that the defendant was indebted to the estate in a further sum of £1623. The defendant (consenting) was, by order of the Court, removed from the trusteeship in 1909. On December 22, 1910, the following order, founded upon the report of th« Registrar, is shown to have been made by Mr. Justice Cooper: "It is ordered that the above-named defendant do pay into Court the mim of £26!KJ 14s lid, being the amount agreed upon by the parties as due by the above-mentioned defendant, as trustee of the estate of Ellen Greenfield, deceased, and also that the defendant do pay into Court the further sum of £950 8s 4d, being the amouti agreed upon as being due by the defendant as trustee of the "estate of Robert Mackay Greenfield, deceased." Their Honors appear to have given the defendant until February 1, 1911, to comply with this order. 'Defendant failed to pay the money by that date, and counsel for the plaintiffs moved for an attachment (i.e.. arrest of the defendant) for non-payment. Argument was heard by the Chief Justice (Sir Robert Stout) and Mr. Justice Chapman, and they decided that it was a proper case for the issue of a writ of attachment. Their judgment, which is dated February 10. 1911, states the motion is for nn attachment for the non-payment of the sum of £3504 5s 9d, and that the notice of motion is founded on the order of December 22 (quoted above). After reciting that order, the judgment proceeds: "Affidavits have been filed in support of this motion, and in the affidavit of the solicitor for the plaintiff it appears that there is a sum of £172 17s 6d of interest included in these two sums, and the attached is asked only as for the balance, deducting the interest from the amount of these two sums." Next the judgment reviews the objections taken by counsel for the defendant. The first of these objections was that, as interest was included in the two sums named in Uie order of December 22, no order for attachment could issue. Their Honors reviewed the cases cited by defendant's counsel, and held that, as'the amount included for interest in the order of December 22 could be arrived at without dispute, there was no difficulty in ordering an attachment to issue for the reduced amount mentioned in the notice of motion. The other point on which counsel for defendant relied was that the defendant had not the money wherewith to pay the amount. Their' Honors, following authorities, held that that was no answer to the issue of attachment. The judgment concludes: "We, therefore, do not think that the objections taken by counsel for the defendants can prevail, nor do we think that any of the matters placed on affidavit for the defendant, or which his counsel says might be placed on affidavit, would avail the defendant. We, however-, think that the matter, as it is a new one in New Zealand, may, if the defendant desires it, be considered by the Full Court, and if the defendant desires further argument on the matter we are willing that the order for attachment should lie in the office until the Full Court meets on April 3 next, but only on the following conditions, namely, that he deposits in the office of the Court, on or before Monday, the 20th in~r., the sum of £SOO, failing which the order fur the attachment must issue. Either party will have liberty to file fresh affidavits before March *2B if the defendant wishes the matter further considered." The conditions on which a rehearing by the Full Court was allowed, as above, namely, the deposit of £SOO on or before February 20. apparently was not complied with, the records showing that defendant filed two fresh applications—one to set aside the order of February 10 on the ground that a writ of attachment could not be issued as a sequel to an action for debt, and the other to stay execution. The latter whs heard by Mr. Justice Cooper, and Jisraissed. The former came before the Chief Justice on Wednesday, March 14. Decision was reserved, and was given on the following Friday, the motion being dismissed. The questions as to appeal and stay of execution were raised on this occasion by counsel for tne defendant, and His Honor postponed his decision thereon until the following Tuesday. On that date counsel met him in Chambers, and were informed that leave to appeal to the Court of Appeal would be granted. Defendant was ordered to pay into the Supremo Court office by 3 p.m. on the following day (Wednesday, March 22) the sum of £IOO, and it was further provided that a printed copy of the 'rase on Appeal" (which comprises document's relating to the action) should be placed in the bands of counsel for the respondents (the plaintiffs in the Appeal Court proceedings), on or before Thursday, - March 30, and that the case should come on for bearing during the first week of the sittings of the Court of Appeal. The fulfilment of the above conditions entitled the defendant to take his case to the Court of Appeal, and also carried with them a stay of execution of the writ of attachment, which could otherwise be issued against him, as a sequel to his non-satisfaction of the order to pay the sum of £3304 5s Od. The grounds of appeal are of a technical character, and do not go into the merits of the original action.