SUPREME COURT.

Press, Volume XL, Issue 5886, 25 July 1884, Page 3

SUPREME COURT.

SITTINGS IN BANCO. Thcbsday, JtrtT Zi. [Before his Honor Mr Justice Johnston.] | His Honor sat in banco at 11 a.m. HCTAGGABT AND ANOTHER V HABGBXATXS AND ANOTHER. This was a case in which a suit of prohibition was 'sought under the following circumstances. The defendants had obtained judgment in the Eesident Magistrate's Court, Christ church, against one Crabtree, for £47 14s, and a warrant of distress was issued under which certain goods were seized. The claimant in the present case interpleaded as to some part of the goods, and the matter came before Mr. E. Beetham, K.M., who decided that part of the goods had been properly seized and that part had not, and the latter was delivered up to the claimant. After the decision of the case the counsel for the defendant Hargreavea applied for costs, which was objected to by the claimant's counsel, who submitted that the Eesident Magistrate had no jurisdiction to give costs in an interpleader. The EesidentJ Magistrate held that he had jurisdiction, and gave judgment for costs as against the claimant for JEB 13s. The question now brought before the Supreme Court was whether the Eesident Magistrate was right in his decision, and for that purpose the claimant applied that a suit of prohibition should issue to restrain the Eesident Magistrate from proceeding further with reference to the order made for costs. For claimant and prohibition, Mr Stringer; for defendant and contra, Mr Fisher. Mr Stringer submitted that the Eesident Magistrate, in dealing with interpleader, had no jurisdiction to give costs. The words in section 72 of the fi.M. Act; " such order as he deems fit," went, he would submit, to deal with the goods the subject of claim, but that he could nob go further , and have power to award costs. In the Act of 1879, where a case was wrongfully brought before him, he had power to award costs. He submitted that an inferior Court had not jurisdiction to deal with costs in interpleader cases, though it had with the matter of the claim. [Cases cited in support, Peacock v Bell, W. and S. 96; Keg. v Bobinson, Olivier, Bell and FitzGerald's reports 88 ] He would now call the attention of the Court to 53-55 of the Eesident Magistrate's Act, and would submit that under these sections," which were those giving power to award costs, his learned friend had no ground at all for receiving costs as an interpleader had been held not to be a proceeding. [Case cited in support Beswick v Boffey, 23 L.J. Exch. 89.] " His Honor said that an affidavit which had been filed gave them some idea of the reason why the Magistrate had made the order for costs really against the successful suitor, which at first s ; .ght appeared to be strange. But on reading the affidavit it was seen that the case was decided on its merits, and that the Magistrate was of opinion that there had been fraud. They could not he thought give prohibition for the exercise of discretion wrongfully. Mr Stringer submitted that if the Eesident Magistrate had been intended to have the power to grant costs it would have been so expressed. Even supposing an execution creditor had no show of reason whatever for taking goods the claimant could not, he submitted, be allowed costs. He would draw the attention of the Court to the fact that in the English Acts power was given to grant costs, while in their Act, which was drawn from the English Acts, this provision was omitted, as he should submit, intentionally, so as not to allow of costs being granted in interpleader. The word "costs" was left out of their Act in the section referring to interpleader. [Quoted 9 and 10 Victoria, chap. 95, section 118, Besident Magistrate's Act, 1867, 19 and 20 Victoria, eh. 180.] The Court would see that the interpleader only provided a means for the bailiff to get rid of the claims of rival suitors, and therefore did not decide the claim to the goods. Therefore, as it only provided a remedy for the bailiff, no costs should be allowed, because the common law right with regard to the conversion of the goods was still in force. [Case cited in support, James v Owen, 2 N.Z. Jurist N.S. 111/] The right to the costs must be distinctly shown by the statute, and the Court must not infer jurisdiction, and he .would hold further (1) that the difference:between the English and Colonial Acts" was- intentional, no power being intended to be granted to give costs in interpleader cas2B; and (2) that the interpleader being only a remedy for the bailiff, costs could not be given. Mr Fisher submitted that the matter was one for appeal, not for prohibition. [Case cited in support, re Tamerlane Bowen, 15 Jurist, Part 1, N.S. 1196] He should also submit that the section in the Besident Magistrate's Act waa quite large enough to give jurisdiction for costs, and the omiseion of the word " costs " which appeared in the English Act did not interfere with it. Section 53 of the Besident Magistrate's Act gave power to the Magistrates to deal with all suits, and he ehould submit that " suits " included interpleader, both Webster and Wharton laying it down one that the word " Buit" meant a following, and the other " a means to gain an end," so that both in the ordinary acceptation of of the word " suit" and the legal definit'on this was a " suit" under section 53 of the Besident Magistrate's Act. He would further submit that the interpleader did settle the ownership of the goods either in the execution creditor or the claimant, and thus it was a final and conclusive settlement of the chvm, and not, as his learned friend had put it, for the mere protection of the bailiff. The word in the Besident Magistrate's Act with reference to ** proceedings" would be insensible unless they included power to give costs, because there would be nothing else to enforce but costs. He would refer his Honor to the caee of Maslin. v Casey, N.Z. Law Report, voL 1, page 138, in which the question of costs was discussed on a point of informality of service of interpleader summons, and there had been no doubt of jurisdiction, as to costs. His Honor said that on the whole he dad not see his way clear to grant prohibition. If he granted it he would have to be satisfied that the Magistrate had no jurisdiction to grant costs, and he was not so satisfied. He should have been completely satisfied as to the power given by the last portion of clause 53 of the Eesident Magis- , trate's Court had it not been for the comparison with the County Courts Act, and the omission of the scale of costs for interpleader from the Amended Act. These things did raise a doubt as to the intention of the Legislature, but he was of opinion that the language used in the section of the B.M. Act was sufficiently large to coyer an order for costs. Whether the discretion was properly exercised or not waa not now before the Court. The question was, had the Besident Magistrate power to award costs, and he was not satisfied that he had not. The application for prohibition would, therefore, be dismissed with costs.