SUPREME COURT.

Press, Volume XVII, Issue 2318, 28 September 1870, Page 2

SUPREME COURT.

Tuesday, September 27. [Before Mr Justice Gresson.] His Honor took his seat at 11 a m. THOMSON V. WAXKEE. Mr Wynn Williams moved for leave to enter up judgment by default, for principal and interest due on a mortgage. The Court granted leave to enter up judgment for £100 principal, £20 interest, and costs. BHODEB AND ANOTHEE V. EOBINSON. In this action a rule had been obtained, calling on defendant to show cause why he

should not enter up judgment of nil capiat per breve, or why in default thereof the plaint.ff. should not be at liberty to do so for him. Mr G-.irrick now showed C;ius:\ and aiVr recitmg the pl-.Midinii* said tha-t pi dntiffs hnd demurred to defendant's plea of judgment recover."-d ; upon that ]: v m tho Court i'avo judgment for fho defend );>t, leaving sis issues of fact undisposed of, ail of which were material, and all of which defendant was entitled to have tried before tho Court, even if if. iuid j'i-isdiction, could force the d.-f'endant to enter np judgment (Hinton c Ackerman, 3 0.8. 738). Ho would therefore submit that tho rule must be discharged. Mr Harper, in reply, argued that as the plea of "judgment recovered" went to the whole pause of action, it would he a useless expenditure of money to go to Hal upon the issues mentioned by his lea." 1 :- 5 friend ; for men sho.dd rhe plaintiffs obtain a verdict on all tho-o is.-'.ic:;, the Court would still direct judgment to be entered for defendant upon the plea of "judgment recovered," so that in any case the costs would fall upon the plaintiffs. The law upon this point was very clearly laid down in a note to Law v 'King, 1 Wm*. Haund. 80 n (1), 6th edit.—" Hence it seems to follow that, where the defendant's plea goes to bar tho action if the plaintiff demurs to it, and the demurrer is determined in favor of the plea, judgment of nil enpiat shall be entered, notwithstanding there may be also one or more issues in fact; because, upon tho whole, it appears that the plaintiff had no cause of action. Admitting th 6 decision in Hinton v Ackertnan was against him, still on the whole he contended that there was sufficient authority shown in the judgment of Mr Justice Maule to prove that in some cases and under certain circumstances the Court would interpose its authority to prevent a useless expenditure of money." Mr Justice Maule, in giving judgment in Hinton v AcJcerman, said —" If we could see that it could not in any possible event make any difference to the defendant whether the issues in fact were disposed of-in the ordinary way or not, we might be induced to interpose our authority to prevent a wasteful expenditure of time and money." Now he (Mr Harper) would submit " that it could not in any possible event make any difference to the defendant whether the issues in fact were disposed of in the ordinary way or not," because in any case the Court would direct judgment to be entered up for defendant on the plea of judgment recovered, and the costs must fall upon the plaintiffs. Whereas by defendant not entering up judgment, plaintiffs were precluded from going to a Court of Error. His Honor said that if he made the rule absolute he believed he should be virtually over-ruling the decision in Hinton v Ackerman. He must allow the cause shown. Rule discharged with costs. In Bankruptcy, be alexander scrimgeoub. Bankrupt in person obtained an order fixing date for final examination, and hearing the application for discharge for the 17th November. BE THE ESTATE OF THOMAS PURDIE, AND BE THE PETITION OF CHABLES JAMES POSTER. Dr Foster moved for au order granting leave to Registrar to tax costs herein, and that such costs when taxed may be ordered to be paid out of the estate. His Honor might recollect that on a former occasion he (the Judge) had intimated he would take the opinion of the Judges on solicitors' costs in bankruptcy cases. His Honor—l took the opinion of the Judges on the point, and they thought the solicitor in these cases might be considered ordinarily ; but I do not consider yours to be a case which I could yield to now, because it is at such a distance of time, and if I were to make a precedent now I do not see how I could refuse any back case. The application must bo refused. The Court then rose.