SUPREME COURT.—Wednesday. SITTING IN BANCO. [Before his Honor Mr. Justice J. S. Moore.]

Daily Southern Cross, Volume XXIII, Issue 3017, 28 March 1867, Page 6

SUPREME COURT.— Wednesday. SITTING IN BANCO. [Before his Honor Mr. Justice J. S. Moore.]

His Honor Mr. Justice Moore sat in. Court at 11 o'olook in the forenoon. JOHN KIRK Y. J. 8. MAOFARLAKB. This case was tried at the last civil sittings of the Supreme Court, and was an action to recover £338 Hi. 6d. — a question of disputed account. The jury gave a verdict for plaintiff for £65 14s. Id. An application was made I before his Honor in Chambers on Friday lait, on behalf oE plaintiff, for costs, by Mr. MacCormick; and the question wai then argued by counsel. Hit Honor, in giving judgment, said, this was a summon! under the Diitriot Court Aot, 1858, calling on the defendant to show cause why the plaintiff should not have the ooats of the action, notwithstanding that he recovered less than £100 in the action. It was contended by the plaintiff in Chambers, on the hearing of the summons, that a case in wMoh the claim of the plaintiff was reduced by set-off was not within the Act so a» to deprive him of his costs, notwithstanding that he recovered a sum not exceeding £100. Woodhams v. Newman, ' 7 C.8., and Beswick v. Capper, same volume, were relied on in support of this view. The latter is a mere repetition of the former, and the former, as pointed out by Justice Crompfcon in Beard v. Perry in 2 Beat and Smith, was under the original County Court Act, 9 and 1 0 Vie., chap. 95, and would seem to be no authority under the 13 and 14 Vic, chap. 61, which, as pointed out by. Chief Justice Jervia, in Ashcroft v. tfpulket, 18 C.8., studiously omits certain words in the former Act; and in the same case, Ashcroft v. Foulkes, the Court of. Common fleas held sgainat the plaintiff on this point, overruling in so doing Tongue v. Chadwick, 0 El. and 81. 950, in which the Court of Queen's Bench had held the other way. Justice Crompton, indeed, in Be&rd'v. Perry, as the case is reported m the Jurist, says, " that Tongue v. Chadwiok is in effect an authority the same way as Ashcroft v. Foulkes ;" but Justice Blaokburne, on the other hand, says, "It is clear that the deaision of tbialCourt, that is, in Tongue v. Chadwick, proceeded upon a misapprehension, and that the Court of Common Pleas has lidd down the correct rule." Such is the state of the authorities under the English Act. Perhaps they do not conclusively govern cases in which the same question arises under the District Court Act, as the language of the latter is not the same as that of either ef the English Acts. And as upon a comparison of them it is quite clear that the f ramers of the last - mentioned Act evidently had the former two before them, it must be taken, in the words of Chief Justice Jervis, "to differ from them studiously where it does differ." Now, they had seen that if the words of the District Court Act had been the same as those of 13 and 14 Vic, ohap. 61, the plaintiff must have been deprived of his costs, so that the question is whether the language of the District Court Act is more favourable to him than the language of the original English Aot. And the ultimate question appears to be, what is the meaning of the words "cause of action" in the 124 th section. It seemed to him that the cause of aotion cannot be said to be the amount of the debt or damages, as the case may be, claimed by the plaintiff, but as equivalent of ground of action, and this must be apparently either contract or tort. In Aris v. Orchard, 6H. and N. 160, Chief Baron Pollook seems to speak of contract only being a cavie of action. Even if so, it would apply jt to this case, whioh. is one of contract; and the cause of action would still be the contract itself or the breach of it, and not the amount which, under the contract, or any breach of it, plaintiff might claim. If thati3 so, then a cause might be within the Act otherwise than as to the amount claimed, so as to bring the case within the clauses in question of the District Court Act, if amount claimed means, aa held by Chief Baron Lyndhurst in Brew v. Cole, 1 Dowling, P. 0., 582, "rightful claim;" that is to say, when the jury gave a verdict for less than the plaintiff claimed, they say that he did not rightfully claim what he did claim, but what they gave him. To that end the decisions of the Court of Common Bench, reviewing and over-ruling previous decisions, deprived the plaintiff of his costs, even in the case of reduction of his claim by Set-off. He thought, therefore, the authorities 'compelled him to say that the plaintiff could not' have his costs against the defendant.

' KOSIE Y. BAIN AND OTHERS. Mr. Macdonald applied for the adjournment of this case — argument on motion to dissolve writ of injunction — o.wing to a bereavement in Mr. Wynns family. He made the application with the consent of his learned friend, Mr. MacCormiek.^ ' Mr. MacCormick said he acquiesced in the application. His Honor adjourned the case until 11 o'clock on Friday.

Appiioatioks in insolvency. RR CHIBIjK? 0. OLA.YWOETH. Mr. Hesketh applied for a vesting order, on behalf of the petitioner, with the consent of one of the creditors, Ann Campbell, to the amount of £55. The liabilities amounted to £126 175., and the debts due to petitioner were £34 15s. The Court granted a sequestration order; the order to be a vesting order ; and fixed the hearing of petition for the Ist May next.

BE FREDERICK -WILLIAMS, AUCKLAND. Mr. Macdonald Mid in this case » vesting order had been granted on the 20th February, and he (Mr. M.) had to apply for the allowance of maintenance money. The petitioner states that he had not earned anything foe the subsistence of himself and family, and that he is totally without meant to support his wife and tyro children. His Honor : His liabilities were over £1,200, and the assets £700. What business did he curry on ? Mr. Maodonald : He wa9 a greengrooer and provision dealer. There was some considerable money in the hands of the sequestrator. His Honor : Is this an ex parfce application ? Mr i Maodonald : It is. His Honor : flare you given notice to the creditors ? The application was in effect to get » portion of the money of the creditors. Mr. Macdonald said he had cot given notice to the creditors, but he would give notice to the se« queitrator, who could be represented in Court. His Honor said the application could be renewed on Friday next. BE HENRY H. ADAMS, HOTELKEEPEB, AUCKLAND. Mr. Macdonald, on behalf of petitioner, applied for sequestration to Mr. Henry Yernon,' the order to be a vesting order, and the day of hearing fixed for Ist May next. The liabilities, including morfcgages, amounted to £3,884, and the assets to £3,922 4s. 4d. His Honor granted the order. Mr. Macdonald then applied for the discharge of the debtor from custody. He readan affidavit showing that he had served notice upon Messrs. Staonus and Owen Jones of his intention to make the application for the discharge of the debtor from custody, which custody was at their suit. .< The application was granted. This conoluded the business before the Court.