SUPREME COURT.

Gisborne Times, Volume XXVIII, Issue 2766, 22 March 1910, Page 7

SUPREME COURT.

SITTINGS AT GISBORNE

The half-yearly sittings of the Supreme Court were continued yesterday morning, before His Honor Mr. Justice Cooper. CIVIL CASES. TOCKNELL ~~V~ TRUSTEES VOLUNTEER DRILLSHED. The first case was that of C. H. Tocknell (Mr. W. L. Rees and' Mr. J. R. Ivirk) against the Trustees of the Gisborne Volunteer -Drill-shed (Mr. T. Alston Coleman), claim for balance or original contract, £221 9s, in respect of Garrison Hall. admitted extras £77 Is Gd, extras allowed on arbitration £ll7 7s, cost of arbitration £46 'Bs, painting contract £BS, and interest at S ner cent. . , . Mr. Rees s aid that although word had been received- that the money was avad_ able it had not come to- hand, and he asked for judgment- for the amount, with the exception of the £BS, which they had decided should go to the arbiters for decision. ' Judgment was then given, by consent, for £476 9s 4d with interest accrued on the balance of all items due under the contract, and on extras found by the arbitrators, from August 21st last to the 21st inst. Costs were assessed on the middle scale- for a defended action on £SOO and amounted to £36 11s professional costs, and in addition Court fees and fees actually paid to witnesses.

On the matter of the £BS, it .was agreed that this should go to arbitration, on the option of the ula-intiff, and the arbitration, if any, to be before Mr. John Warren.

RE HENI WILLOUGHBY, DECEASED.

The next- case was that of Henry Wiilougliby (Mr. W. L. Rees and Mr. H. J. Finn) v. Panapa Waihopi (Mr. L. T. Burnard): Application in til© estate of Heni Willoughby (deceased) for a declaratory order definding plaintiff’s right to two-thirds of landed property of deceased, being other than Native land. His Honor, who was conversant with the judgment of the Native Land Court before allowing the case to go on, said that if -that judgment held good plaintiff’s case was nowhere. Heboid that if the ; judgment held good the Supreme Court had no jurisdiction. Mr. Rees thought it was not a question of jurisdiction. His Honor pointed out that if the Native Land Court had jurisdiction to decide the question then the New Zealand Statute prohibited the Supreme Court- from interfering. The only Court that could interfere was the Appellate Court, and the Privy Council, but if the Native Land Court had no jurisdiction then prohibition seemed to be the proper course. There appeared to be two alternative remedies. Appeal to the Native Appellate Court, and if they satisfied them that the Native Land Court was wrong, they had the remedy by prohibition in the. Supreme Court, if they satisfied the Supreme Court that the Native Land Court had no jurisdiction. , Mr. Rees thought that His Honor could give judgment in this case. His Honor objected to this, saying he would not like to decide an important question like this. Mr. Burnard .said the question he was relying on was the question His Honor had raised, but he could not- assist with reference to the statutes. The statute of 1885 only dealt with cases between Native and Native.

His Honor, on reference to the statutes found in Section 51 of the Native Land Act of 1894. the statement that the Native Land Court should have exclusive jurisdiction to grant letters nf administration in the estate and effects of deceased natives. Therefore, lie pointed out, as tliev had exclusive jurisdiction the Court- to apply to was the Native Land Court, for letters of administration. Henry Willoughby had no inherent right, because the next of kin eoukl not take possession unless he had letters of administration. If lie gave judgment for two-thirds of the land, then W 7 illoughby could not get the land. Air. Rees said that if His Honor were to give judgment for this, then letters of of administration could bo applied for

His Honor dicl not think this ■was the proper proceeding, and decided to leave, the summons in abeyance for the Appellate Court to state a case for the Supreme Court upon all matters in.connee tion with the plaintiff’s claim and rights. MORRISON V. SHEET. David Morrison (Mr. T. Alston Coleman) v. Reginald . Oswald Sheet (Mr. L. T. Burnard): Re re-hearing motion— That matt ex’s he moved into the. Supreme Court, in order that re-bearing granted by the Justice of Peace may be rescinded 1 . Mr. Burnard .stated that ..the, case hadi been settled, so it was according struck out. IN BANKRUPTCY. PATRICK JOHN HOFEN. An order was made that all money and property of' Patrick John Hofen, bankrunt, should be handed over to the Official Assignee (Mr. L. T. Burnard), subject to the rights of any person who could establish a right "to it. Mr. T. Alston Coleman pointed out that £ls found on Hofen was the property of Mrs. Hofen. EDWARD WAKEFIELD THOMAS. In the estate of Edward Wakefield Thomas, of Patutahi, storekeeper, bankrupt, application for opinion of Court as to whether creditors holding orders are entitled to have amounts of same paid in full in preference to other creditors. Mr. Nolan appeared for the Official Assignee, and Mr. T. Alston Coleman, on behalf of certain creditors: —Messrs. Mackv. Logan and 1 Co., Abbott, Oram and Co.. Wright, Dickson, and Witt, A. J. Fothergill, J. E. Butler Ltd., Georcre and Doughty, and the Kia Ora Dairying Co. Ltd. Mr. Coleman said there was sufficient money to supply all those who put in orders and leave a surplus for the Official Assignee. 1 The total orders amounted -to £lB2 10s 4d and there was a cash asset of £425 9s 3d. The total liabilities were put in as £732 12s> Bd, and the estimated assets were £539 10s. Mr. Nolan said the bankrupt' had been burnt out at Patutahi. There was an. insurance policy of £450 upon the place, hut the actual nayment-—£425 was not handed over till the day after the bankrupt filed. In the meantime the orders .referred to came to hand.

The Assignee considered it a fit and propel - thing to bring the the Court to- decide upon. Section 57 of the Bankruptcies Act debarred; anyone from claiming after adjudication. His Honor would see that if orders of this kind were allowed, it would open doors for claims over the estate. If the orders were granted it would not be an equitable assignment. The money wasi not actually due from the insurance company when the firetook place as they were- not agreed immediately after the fire. There had been some dispute as shown by the fact that the. full amount had not been paid, therefore- some- of the orders- certainly came before the money was due. Mr .Coleman said t-liat only Abbott Oram and Co. had mentioned that they looked upon the insurance money as security.

Mr.' Nolan entered the claims of other creditors, winch did not show security.

Mr. Coleman submitted that the insurance company became liable as soon as proper notice had been given after the fire, and the. fund was then legally in existence. The fire took place on 15th August last, and none of the orders! were given till after the fund was due. and this was some time before bankrupt filed. Authorities were quoted, at great longlii, by both counsel and His Honor reserved his judgment. The Court then adjourned till 10 a.m to-day; x