SUPREME COURT.

Dominion, Volume 1, Issue 244, 8 July 1908, Page 2

SUPREME COURT.

ALLEGED BREACH OF AGREEMENT. GORLITZ v. KUBELIK. PENDING ACTION AGAINST FAMOUS : VIOLINIST. . PRELIMINARY;MOTION DISMISSED. ' Mr.v Justice Dennist-on yesterday delivered reserved judgment on a motion having reference to the pending action'between Hugo Gorlitz, of Timaru (plaintiff); and Jan Kubehk, the famous violinist' (defendant). ' The plaintiff by his ex part 6: application had asked for a writ under Section 15 of the Imprisonment for Debt Abolition Act, 1874, to arrest and imprison the defendant unless and until he should give security that he 'would not go out of Nfew Zealand without leave of tho Supreme' Court.

.The judgment of His Honour was., as follows :-t-" The action is for an alleged breach by the defendant of a Verbal. agreement alleged to have been made by, him with the' plaintiff in Chicago,' in 1906, for a concert tour under the plaintiff's- management in Australia and New Zealand in that year. It is alleged' that the defendant refused, in May, 1906, to. carry out'this; contract. The plaintiff'alleges that lie came to Australia in 1906, and that circunistahccs : thero led to his accepting a situation with a musical instrument selling .company in. Timaru,. in New He claims, £3000 damages. The ground "of the' application ' is ' that the defendant is about to quit New Zealand unless he is apprehended, and that his absence from New Zealand will-materially prejudico the plaintiff in the prosecution of the' action. The defendant',is a musical artist,now 011 toiir in New. Zealand, and it . is. not disputed that in the. arranged course of that tqur he -proposes to 'leave'. New" Zealand 011. the thirteenth of this month, that is, ono week from date. The grant of the writ for 'which ; the present-procedure is a substitute—the writ of ne exeat regno—has been spoken of as an exercise of a jurisdiction of a very special: and delicate character. Its effect may be most injurious—even ruinous. It is not granted as-'of right. -Its issuo' is in-the discretion of the Court, which is, I think, ontitled to look at all tho. circumstances.' Its effect may'bo most injurious— evin ruinous, and entirely disproportionate to the benefit accruing to the plaintiff, so that it might be' made a powerful means of oppression and exaction. .- ' "The ground.on, which it is:alleged that the . absence of the defendant' from ' New' Zealand will materially prejudice, tho 'plaintiff in the jprosecution of liis action is that , the plaintiff proposes asking the' leave' of' the Court to administer interrogatories to the defendant for the purpose or ascertaining the amount of monoy_ he has' taken up to tho present during his tour in Australia and Now Zealand,'and his profits'during such tour, and to apply for an order for discovery of any documents or books relating to the alleged contract. ■ As to tho latter point, tho contract is alleged to have been made verbally between the parties personally/' If the defendant does not give evidence in. denial of it, the plaintiff should have no difficulty in supporting it. On tho question of damagos, while it would probably be convenient to the plaintiff to linvo 1 evidence from tho defendant on tho point, 'it does not seem to 1110 that it is'in any way essential to his case. If the statements' in his- affidavit arc correct, lie should have 110 in proving loss at least up to the amount he'claims. If, as may bo reasonably assumed to bq tho case, the. action is defended, the- plaintiff will not he precluded by tho absence of'the defendant # from: obtaining what -ho, now- asks for! It' is a matter of public notoriety, and must have been within the plaintiff's knowledge, that the defendant has been iu Ncw

Zealand -for over .V fortnifihtj-.during which ,tho plaintiff could"! havo qbitimenccd these 1 ; proceedings.-. There is nig. auggestiou the ' defendant is leaving .New Zealand to. avoid his alleged liability to the plaintiff, or otherin the regular, his engage- | ... 'I do .not think, therefore, that it is suffi- •' ciently Bhown that the absence of the de- \ fondant will tjie ,: plain-■ ■ tifrin the prosecution af'msMffitioriy or that, m the circumstances, MM.lO'}®«llould issue. ? Hie. motion will therefore- bo-dismissed." ' Mr. Skerrett, K.Q. feth ihhii. Mr. Blair). , instructed by Messrs. "fa'mitfison arid Raymond, of Tirnaru, th/T. motion. . • .. ,noeg ( l . ; he! 1 ———lili