SUPREME COURT. DUNEDIN.

Bruce Herald, Volume IX, Issue 827, 11 August 1876, Page 3

SUPRE ME CO U RT. DUNEDIN.

IN BANCO.

Wednesday, August 9. (Be'ore his Honor Judge Williams.,)

His Honor delivered judgment in the following CtlS'S : —

In ro.iTHE New Zealand Submarine Gold-mining CoMjPANt LrMiTED.— This was a rule calling on the official liquidai.iv of the company to show cause why im order o; tho Supreme Court directing the company to be *■ aiad up should not be set aside, together with all subsequent proceedings. Tho rule, wus argued mainly on the ground that this Court bad no jurisdiction to make ouch an order. His Honor sui.l tbat tho question heroin, as to whether the company was carrying on business on the goldfields or in Dunedin, was discussed, but in either event he was satisfied that a District Court existed having jurisdiction in each place, aud it was immaterial tv decide in which of these Courts the proceedings should have been , taken. It was s ffieient for the consideration of the rule that under the Act this Court had no jurisdiction to entertain the petition, hut that the proceedings should have been taken in some District Court. Ii there is «no intendment in favor of the jurisdiction, and the proceedings can be impeached collaterally, then it follows ' that the proceedings are assimilated to .the.-pro-ceedings in inferior courts, aLd the rule that consent cannot give jurisdiction would apply equally. In the present case tho proceedings show that the' Court w-ss not acting by vif.ue of its general jurisdiction as a Court ol' Equity. The company was the creature of the statute, and the statute gave this Supreme Court jurisdiction only in certain circumstances. Xt did not appear in the petition or the order oi in any part of these proceedings that these circumstances existed, and it was now shown that they had no existence. The Court had, therefore, no jurisdiction to enter on the matter, and the winding-up order and subsequent proceedings would be set. aside, but without costs.

Clauke v. Eobehts. — Eule made absolute, without costs.

"Webb v. the National Bake or Ne-y Zealand. — This was a rule" calling ou the plaintiff to show cans*- why judgment should n vt be arrested ou the ground that the declaration noes not disclose any right of uctiou vested iv the paintiff; or why a new tr.al should u,it bo granted on the ground tbat the verdict was against th • weight of evidence. His Honor held under tbe first ground that, although the right to sue for tbe trespass to tho chatttls did not pass by tho vesting order, yet the right to sue for the injury to the leasehold might Imve passed since it -was a right of action coupled with actual possession, aad ou an assignment of the leasehold by deed a valid agreement could have been mude to give the benefit of the right of action to tbe assignee. If that holding were correct some of tbe counts of the declaration are bad, while the count for trespass to tbe land is good. Iv such a case, when the damages are general, judgment, wns not arrested, but a trial de novo was awarded, although the rule asked for a an est. of judgment (Leach v. Thomas, 2 Meesouaud Wei shy 427). Rule made absolute for a trial de novo on the first branch, each party to beir his own costs to the first trial. As to tbe costs of the rme tlm defendants bad chosen to reverse the usual order, and inst' a 1 of asking for a new trial, or f -iliug that for judgment to be arrested had askel fi>r the arrest of judgment, and faiiinu' that, for a new trial. He (tbe learned jud^e) considered the form of the rule was wrong and doubted if tbe defendiiut had failed on the first branch whether he could have succeeded on tbe second, however strong a case he bad, as by moving first in arrest of judgment be admitted the verdict io be good. (Ptiilpot v. Pa -c, 4. B and C, 160.) Rule made absolute without c >sts.

Howokth v. Malaghan and Another.— ln this cfis« the P'tiiutiff m:i'le au assignment by deed of ail his pr perty to the defendants, as trus-ees, fcr the bwuefii of his creditors. The declaration set out the deed, and allesed that defendant had misappropriated the trust propert> and neglected to carry ou!: the trust. The declaration prayed for a relief geuerally. Thereto the dpfeudauts pleaded two pleas, first denying the misappropriation ; and, second, alleging that the deed was filed in the District Court. < if the Ot:igo Goldfields, under part 18 of the Bankruptcy Act, 1867, that a declaration of complete execution was made by such Court, and that, therefore, this Court oiufht not to exercise jurisdiction in the matter. — His Honor held that the fair and reasonable construction of the plea was that it alleged only that the District Court exerci-ed jurisdiction aud not that the matter was one over whrch it could properly exercise jurisdiction, aud that for this reason the plea was b:>d aud the demurrer must be allowed. Demurrer allowed with cot>ts.

Bukt and Another v Vincent and Another. — This was a rl e calling upon plaintiff aud the Judge of tbe District Court, Dunedin, to show cause why a writ of prohi •itioa should not issue in consequence of a summ ns, under which judgment was obtained, not being dated. — His Honor determined that the defendants' remedy was to apply to tne District Court under section 53 of the Act to pet aside the judgment. Rule discharged with costs.

Glassford v. Reid. — In this case the rule was made absolute to enter judgm >nt for plaintiff the question of cosis being reserved. Mr Sinclair gave notice o f appeal. MBKIDE V. BROGDEN AND ANOTHER. — This Was an application for a rule to show cause why a nonsuit should not be entered in pursuance of leave r served for tr : al. The c.ise was ;>eard at the July sitt ngs of the Supreme Court, and the j ry awarded L3OO damages to the plaiutiff, who was injured when travelling upon a line of railway (theMo^raki line) in c<mi >-e of coustruction by the defendants.

Mr Haggitt moved for the rule on the following grounds : — First, that the plaintiff was in the employment of defendants at the time he sustained the injuries in the <!ec aration mentioned, aud that the injuries were occasii 'ned by an accident consequent uuou ordinary risk incident to the employment in which plaintiff was engaged, and that there was no personal neglect or interference on the part of the defendants ; second, there was no evidence that the injuries were caused by the negligence of any uersou for whose acts or defaults the defendants w^re responsible ; third, assuming there was some evidence of neglect, then the only persons whose neglect could have caused or in any way conduced to the injuries sustained by plaintiff were his fellow servants engaged with plaintiff in the course of common employment, and there was no evidence ef any neglect on the part of the defendants iv the employment of any fellow-servant of the plaintiff. He further asked for a rule to show cause why a verdict should not be entered for the defendants pursuant also to leave reserved at the trial on the same grounds as these already mentioned. Also, aa ft separate ground, that the finding of the jury to issues 2, 3, 4, 5, and 5a entitled defendants to have a verdict entered for Ihem.

.-• ftor hearing Mr Hageitt at considerable length, his Honor granted a rule nisi.