THE MANDAMUS AGAINST ALAN BAILLIE, ESQ.

Daily Southern Cross, Volume XXIV, Issue 3399, 8 June 1868, Page 3

THE MANDAMUS AGAINST ALAN BAILLIE, ESQ.

This important case was heard in the Supreme Court on Saturday last, when the rule nisi, which had been granted on the 27th ultimo, calling upon Alan Baillie, Esq., Warden of the Warden's Court, Hauraki, to ahow cause why a mandamus should not issue, commanding him to tax and allow costs to Angus Mclaaac, plaintiff, in the case r of Molsaac v. Mclntosh. was argued before his Honor Mr. Justice Moore. The facts of the case are these : — A share in a certain claim at Tapu Creek was sold by one Alexander Molntosh to Angus Mclsaac ; a proper transfer was made, and possession of the share was given in proper form. The purchase money was not all paid, however, at the time, a balance of £14 remaining due Subsequently Mclntosh re-possessed himself of the share, on the ground of non-payment of the purchase mon»*y ; whereupon Mclsaao brought an action in the Warden's Court to recover possession. The case came on for hearing in the ordinary way — Mr. MacCormick appearing for the plaintiff — on the 15th April, when judgment; was reserved by the Warden, Alan Baillie, Esq., till the 20th of the same month. On this day the parties again met in Court, and, as is alleged on behalf of plaintiff, an unqualified judgment was given in his favour. A copy of the minute of the judgment, bearing the Warden's signature, was delivered to each of the parties. Afterwards—on the 7th May —however, Mr. MacCormick on inspecting the minnte-book found that two additions had been made to the judgment as shown in the copy delivered to each of the parties — the first being, that each party should pay their own costa ; and the second, that the sum of*£U should be paid by Mclsaac to Mclntosh On this discovery certain steps were taken by Mr. Maoltormick to obtain payment of the costs to which he believed his client was entitled in virtue of judgment having been delivered simply in his favour, relying on a portion of the 23rd Rule for regulating the Procedure and Practice of Wardens' Courts, to the effect that, in default of any special direction, such costs shall abide the event of the action. It was also alleged, in an affidavit filed by Mr. J. C. MacCormick, ■olicitor, and Mr. E. T. Defaur, his clerk, that Mr. Baillie, on being spoken to on the subject, admitted having altered the minute-bo»k in the manner alleged, stating that " he was not bound by any ruleg of procedure, and th»t he could alter his judgment fifty times if heliked " Interviews were held with Mr. Baillie, and request was made to tax and allow plaintiff's costs, but he refused to comply, and ultimately a rule nisi was applied for and granted in the Supreme Court on the 27th ultimo, calling upon Mr. Alan Baillie to show oauie why a mandamus should not issue, commanding him to tax and allow Mclsaac's costs. In support, affidavits were filed by Angus Mclsaac, John C. MacCormick, Edmund T. Defaur, and W. C«ry, solicitor, all agreeing in the statement tha' judgment had been delivered in favour of plaintiff, without any special direction as to costs. Affidavits were filed on the other side by Alan Baillie, J. C. Young, J. E. Maodonald, and J. Dodd, to the effect that judgment was delivered in favour of plaintiff, with a special direction that each side should defray its own costs. The rule was argued on Saturday last ; Mr. Gillies and Mr. MaoCormick appearing in support, and Mr. Macdonald to show caute. The arguments advanced on either side will be found in a full report of the case published in another part ef this issue. His Honor made the rule absolute, with costs against Mr. Baillie.