SUPREME COURT.—Saturday. IN BANCO. [Befort his Honor Mr. Justice J. S. Moore.]

Daily Southern Cross, Volume XXIV, Issue 3399, 8 June 1868, Page 4

SUPREME COURT.— Saturday. IN BANCO. [Befort his Honor Mr. Justice J. S. Moore.]

important case. application for Mandamus against alan baillie, esq., warden. This was an argument on a rule nisi granted by his Honor on the 27th May Lvt, calling upon Alan Baillie, Esq., Warden of th« Warden's Court, H*nraki, to "how cause why * writ of mandamus should not issue" directed fco him, 1 commanding him to tax and allow the fcost* of the Complainant in an aotion in the Warden's Court, Shortland, between Angus Me Isaac, complainant, and Alexander Mclntosh, defendant; and determined in the said Warden's Court' by the said Alan Baillie on the 20th day of April last. Mr. Gillies and Mr. MaoCormick appeared in support; of the rule; Mr. Macdonald to show cause. Mr. Macdoaald, in opening the cue, said he appeared to show cause against the rule in this case, relying upon the matter contained in three affidavit*. The first was that of Mr. John C. Young, who described himself as clerk in the Warden's Court for the district of Hauraki, in the province of Auckland: and vent on to say in the third paragraph of his affidavit, "On the said 20th day of April last there were present in the Courthouse of the said Court Mr. Warden Alan Bayiie ; Mr. Vt illiam Cary, as of counsel for the plaintiff; and Mr. Macdonald, as of counsel for the defendant. 4. The said cau*e was then mentioned, and the parties were shown a minute in a book kept by the said Warden, when the said Mr. Cary -sked. •How about costs?' The said Wai den then said, 'a* the plaintiff had not paid the balance of purchase , money he was to blame, ami he, the said Warden, should let each party pay their own costs.' 6. "1 here was no Warden's Court held for the said district on the eaid 20th day of April. 6. The said Warden 'never, to the best of my belief, delivered any judgment in the second cause." He (Mr. Maddonald) also relied upon the affidavit of Mr. John Elliers Dodd, a solicitor of the Hauraki Court, whtf stated :—"1: — "1 I was present in th« Warden's Court-house, at Shortland, on the 20th day of April last, with Mr. 'William Cary, Mr. Macdonald, and Mr. "Warden Alan Baillie, when a cause of Angus Motiaac against Alexander Mclntosh w"as mentioned, and the said Warden showed to us a minute in a' book. The said Mr. Cary then asked ' How about' coi>ts ?' and the said Warden used words to the effect that, 'as the plaintiff had not paid the balance of the purchase money, he was to blame, and be, the Warden, should let each party pay his bwn costs.' 2. To th* best of my knowledge and beliff, there was no Warden's Court held on ,the said 20th day of April, and the said Watdeu did not deliver judgment in the said Court." Mr Ma> donald also read an affidavit by Mr. A lan Baillie himself, setting out that— « 2. On 1 the 20th day of April last, a Resident magistrate's Court was held in the Court-house at Shortland, and I Was present at the conclusion of the business of that Court. There was also present Mr. John Edwin Macdonald, Mr. John Elliers Dodd, and Mr. William Gary. 3. There was then and there mentioned a cause of Angus, Mclsaao against Alexander Mclntosh, then pending In the Warden's- Court afo esaid, in which the said Mr. MaoHonalJ was of counsel for the defendant, and the said Mr. Cary of counsel for the plau&ff, and I produced and showed an entry made in a book, when the Raid Mr. Cary asked" 'How about costs V and 1 said, 'As the plaintiff hadnot paid the balance of purchase-money h.s was to blame, and I should let<-ach party pay bis own" cost*.' ° 4. There was no Warden's Court held for the said district on the said 20th day of April last. , 51, I never gave judgment in the said cause «o mentioned as aforesaid." Mr.. Macdonald read al*o an,,, affidavit -filed by himself, , as follows: — " I was present in the Court, Hauraki, Shoriland, aforesaid, .on the twentieth day of f "April last. There were also present Alan Baillie, Esq., Warden of the Warden's Court there, Mr. Dodd, and Mr. Cary, when a cause of Mclsaacs versus Mclntosh was referred to. 2. In that oaae I was counsel for the defendant, and the said Mr. Cary for the plaintiff. 3. The said Warden, on tb» case being referred to, opened a book. I glanced at an entry in' that book, and immediately left the Court-hnu«e, leaving the said Mr. Cary with the said book before him. ,4. I verily believe that there was no Warden's Court held on the Baid twentieth day of April, and I verily believe that no judgment was ever delivered by the said Warden in the said cause." The ltarned counsel then proceeded to argue on the matter disclosed in the above affidavits. The Court would -see that there were two main issues raised. There was one which Mr. Baillie had availed himself of, against what he regarded as harsh proceedings by which he was placed in a peculiarly unfortunate position, and a "proceeding which ought not to have been instituted at all. However, that was no matter for argument. It was only upon the advice of his counsel I;hat Mr. Baillie was induced to avail himself of the defence contained in the last portion of the affidavits. The Court would see that the point of Mr. Baillio's allegation was that no Court was held on the 20th of April, that he did not deliver judgment in the case «s alleged by the other side, and that consequently he was acting perfectly riijht in refusing: to tax and allow costs to the complainant. Mr. Bai'lie'n assertions were borne out by the affi davits of the clerk of the Court, Mr. Young, Mr, Todd, and Mr. Macdonald, who, having been present at the time stated, must have heard what took place, and therefore, if any judgment was delivered, must have heard it. The only statement in opposition to that was the affidavit of Mr. Cary, who stated :—" 1 At the request of Mr. John O. Mact'ormiek, of the city of Auckland, in the said colony, solicitor, I appeared on the 20th of April now Ja*t past in the Warden's Court of Hauraki, at Shortland aforesaid, before Alan Baillie, Esq., a Warden 1 of the said Warden's Court, to hear judgment delivered by the said a lan Baillie in an action in the i- aid Warden's Court, between Angus Mclsaac, complainant, and Alexander Mclntosh, defendant, When judgment was delivered in favour of the said Angus Me Isaac, the said complainant ; and the note I took of the said judgment at the time, and which note wai shown to me at the time of my mak>ng this my affidavit, is 'Judgment for plaintiff.' 2. The said Al»n. Baijlie never stated in my hearing on the ■aid 20th of April now last past that each party to the said aotion' was to pay his own costs ; and I did not hear (that any such order had been made until two or three- days after the said 20th day of April." Mr. Macdonald continued : 'The fact was, Mr. MaeCormickand Mr Cary had formed an impression that the circumstances that occurred on the 20th of April were really a "judgment for the complainant." while on the other hand they bad four affidavits distinctly stating that it was a proceeding at which no tegular judgment was delivered. However, leaving that point to be used as a last resource against the complainant, ha would go on tor another, which h<? submitted would be found to be unanswerable. In point of fact, his client argued that no judgment had ever been delivered in the case on the 20th of April, but that, if what- did take place was to be construed into a judgment for the complainant, then it remained to be seen what that judgment was. The affidavit of Mr. Cary stated that a judgment was given in favour of the complainant, that he (Mr. Cary) had taken a note of that judgment, and that he did not hear anything said to the effect that •ach party were to pay their own costs. On the tither haodyithey had three affidavits setting out that /words 'had been actually used to that effect. The JCourt must be aware that the evidence of one person who hteara a thing is worth that of twenty who do not. It was a case in which the statements of four persons were opposed to the testimony of one. No formal judgment had everbetn delivered, though a certain conversation took .place. Admitting even that' judgment had been delivered, he would now examine what that judgment really wa*. Accord ing taj(bejallegatipnfl contained in the four affidavit*, it was a judgment ordering each side to pay his own costs. Aid bearing this in mind, there could be no question that Mr. Baillie had acted perfectly right fa' refusing, at any time, to tax costs for •ither party. There was another affidavit which touched that point, that of Angus M<lsaa< himself, who stated that on the 20th day of April t Mr. Alan Baillie gave judgment in his favour, and l 4hen H\ the next paragraph of his affidavit said that y on the same morning he had asked Mr. Baillie, in the presenoe 6f several persons, in whose favour judgment had been delivered. Now, these tw /circumstance! had occurred on the same day, and it „'wotddseem with only a few minutes of an interva -between them. Wa«jt likely that Mclsaac, having 'Ifeard the Warden give judgment in his favour, c sbtald afterwar&s inquire in whose favour that . Judgment had°Men delivered ? The fact of' his not „ haying .heard, 'as he 'alleged further oh in his affi. davit that he had heard' Mr. Baillie say that each pirty should pay his own costs, would not go for VmticK, seeing that he (Mclsaac) was obliged t< inquire in J whose favour judgment had been deliV 2£*ed: He felt sure that the Court would s<=e tbat there was really nothing before the Court in disproof £^Vft dd * y -**s* d »g»«»* the rnle. Admit fWb for the lain 'of supposition, that each party

was to pay its own costs, they found that this view -was confirmed by Mr. Baillie when confronted by gentlemen who seemed to have gon* down, pencil in hand, to report what fell from him. They fouud, in the 18th paragraph of the affidavit! of Mr. MaoCormiok and. Mr. Defaur, that Mr. Baillie s-aid, " I will not tax the ootti. I have already given judgment for plaintiff ; the costs to be borne by each party." That was also confirmed by the solemn affidavits of three other gentlemen, and, if such testimony was worth anyhing at all, he (Mr. Macdonald) did not* see how any stronger affidavits could poßsfbly be filed in that Court. The Court had now before it the whole of the facts that might be nnceosary in 7 order to enable it to come to a deoision. Mr. Btillie's defdnde was this in substance : For the 'sake of getting ourselves out of the difficulty in which Iwe have been placed, admitting that we did give judgment, we aid not deliver such a judgment as would entitle the parties to come here and have their costs taxed, or to obmehere for the purpose of compelling us to tax these costs ; and, as a fart resource, and one on which we must succeed, we say that if, on the day in question, I did do certain thingp, or whatever I did and said is to be construed into a judgment, with all its responsibilities, then comes the question, What was that judgment ? And upon this poirit we have the evidence of three other parties, whose statements are uncontradioted. Unless the Court should be of opinion that Mr. Baillie had invented the statement ihat each party should pay their own cost?, and that, in order to assist him in carrying it out, Mr. Dodd and Mr. Young had stated thnt which was not true, there was no other alternative open to the Court than to say that- Mr. Baillie was perfectly justified in refusing to tax costs. Judgment bad been " entered up" under the 69th section of the Goldfields Act, and it would appear frr m the affidavits— His Honor: There is nothing about costs in the minute of the judgment. It is only stated that, "It being plainly shown in evidence that a proper transfer of the share, in duplicate, was made in favour of Angu>« Mclsaao, and possession having been given of the ground in proper form, leaves me no alternative but to give judgment for plaintiff in the full share." Mr. Macdonald : The Court will see that "on the cause being referred to I glanced at an entry in the minute-book, and immediately left the Court-house, leaving the said William Cary with the said book before him." Perhaps it would have been better had the affidavits disclosed that the minute of the judg metit was made before the case nu referred to on that day, and therefore it would be idle to say that that was the jndgment, because the minute was made before judgment was delivered at all. Would it be contended for a moment, if this Court were to enter a minute for the purpost of guiding it in iti judgment, that the Court's judgment must be confined to that minute? We find, in this case, the Court was bound to make an entry of its judgment, but tbat entry should be made after delivering judgment j and the fact that the Warden made a minute of hi« judgment before the deoision was given does not prevent his giviig such judgment as he deemed right in the case; and the fact of his having delivered judgment contrary to what he bad previously intended, and having neglected afterwards to alter the minute previously made, would not make that minute the judgment, and no other.' _ His Honor : The affidavits do not say, if I recollect rightly, tbat the judgmentwss delivered from the minute, but that the minute was taken from the judgment. Mr. Maodonald : The Court misunderstands what I say. His Honor: Mr. McTsaao cays, "The said Alan Baillie said that judgment was in my favour, and I thereupon asked the s*id Alan Baillie for a copy of the minnte ;" and then he goes on to say that, in the afternoon, "a copyof the minute of the decision" was given to him. The other affidavit goes to nh«w that judgment was given first, and then a minute of it given after. Mr. Macdonald : Our affidavits go to show that the minute was actually entered in that book before the parties came before the Court at all; tbat is to say, tbat the Warden forestalled hw duty in making an entry in the book before delivering judgment. Then some of the other side called the attention of the Court to the question of cost', and then the Court sees that it has cmitced to enter anything about them. It is then the Courc says each party is to pay its own costs for the reason given. The Act does not say the entry in a book shall be the judgment ; it only says that, when judgment has been given, it shall be the duty of the Warden to make an entry in the book. We find tbat, after this statement about costs, these parties — Mr. MaoCormick and the other — rush for the book, when they discover that the Warden had made what may be called a false prophecj, and had altered it afterwards in accordance with his real judgment. They then say, •* You had no right to alt^r tbat entry ; it was the minute of your judgment." If that minute was made after the judgment, then, of course, the Warden would have no right to alter it ; but we find tbat it was entered before the judgment, and therefore it was altered in order to make it correct. His Honor : You have not offered any evidence that the entry was made before the delivery of judgment. Mr. Macdonald : The Conrt will remember that I said it was inferetitially shown, although it would have been better if it h»d been distinctly shown in ' the affidavits. The Court will understand that when the judgment was given the minute in the book was actually referred to, »nd afterwards it was altered in accordance with the judgment. The Warden also made an entry that the balance of the purchase money should be paid by the complainant to the defendant. The Court will see that this entry is of no consequence. We are here simply to show why we should not taxco<«ts. I will call the attention of the Court to the 23rd of the " Rule 9 for regulating the Procedure and Practice of Warden's Courts," made under the Goldfields Act, 1866. as follows :— "All the costs of any complaint or proceedings shall be taxed by the Warden, and shall be paid or apportioned by or between the parties or each of them, and in such manner as to the Warden shall seem At." f'he Warden might have taxed the costs down to a certain extent, and then ordered each party to pay its own costs. It is a right the Warden may avail himself of after the taxation, and especially where he thinks the complainant is to blame It is clear the oomplainant has not lost anything except in not having had the costs taxed. We say we did not deliver judgment, but, if what we did say iv to be construed into a judgment, then we did not say anything that would entitle the complainant to have his costs taxed. The Court, in considering the question whether or not this rule should be mad« absolute, will not be guided by anything in that minute but the actual judgment itself. His Honor : What it the meaning of the statement in the affidavit, that no Warden's Court was held in the said district on that day ? Mr. Macdonald : On that day the Court-house was formally opened by all the dignitaries present ; afterwards there was a Resident Magistrate's Court held, and at the conclusion of the business ; and I was there with Mr. Cary and Mr. Oodd. Mr. Baillie happened to be iv Court, and it was then in a formal way tbat this case was referred to. His Honor : Then the paragraph only means that technically there was no Warden's Courb. . Mr. Macdonald : Yes, your , Honor, technically. His Honor : I suppose the Warden's Court in this respect is much the same as any other. Wherever the Judge sits there is the Court, and wherever the Warden sits there is the Warden's Court. Mr. Gillies rose to reply. He said, were it simply necessary for him to make such a reply to the case shown on behalf of the Warden as would be sufficient to entitle his Honor to make the rule absolute, very few words would suffice, but he felt that this matter deserved closer examination than the case shown would seem to deserve. The Court would remember that a Warden of a goldfield s ia Judge of very extensive powers, possessing powers even more "xtemrive than a Judge of the Supreme Court. He had all the powers of an English court of law, and of equity. He had almost unlimited judicial powers within the goldfields, limited only by the express enactments of the Golcfit-lds Act, and the rules made under it> It was necessary, therefore, that he should be strictly bound t by these ; that he should carefully keep within the limits prescribed for him by the Act ; that he should not travel outside of them, and assume even larger jurisdiction than had been given to him ; that he should not overlook the first principles of English jurisprudence in his assumption of those powers ; and, above all, that he should not attempt to justify what might have been n error of judgment in the first instanoe \>j what he (Mr. Gillies) must call— and what the Court itself murt recognise to be in this ease a most lisingenuous line of defence, felt even by Mr. Baillie's own counsel to be so, for this gentleman apologised for the course that he had adopted, saying that the Warden was induced by bis legal adviser to take such a course as he would not otherwise have done, but had adopted it merely as a sort of stand by. He (Mr. Gillies) apprehended that was not the position in which a judicial officer should com*into this Court. He would first shortly look at the affidavits filed on behalf of Mr. Alan Baillie, and >>oint out how throughout the whole of them the •arne diaingenuous ■pirit prevailed. The plaintiffs

affidavits were uncontrarlioted, except upon one point, and even upon that they were not directly contradicted, but only evaded. Were it not for the diMngenuou*B<!ss which prevailed throughout the affidavits filed on the other side, he would be inclined to he amused at them fur their extraordinaryEnglish, but that subsided altogether when compare I with their want of candour. Mr. Bail lie's affidavit, for instance, set forth that besides the deponent "there was" also present three other persons. But this was a matter of no importance. He (Mr. Gillies) would aik the Court to retnember that Mr. Macdonald, who had made an affidavit in support of the Warden, wan counsel for the defendant Mclnttisb, because that threw an important light upon some of the other affidavits. Mr. Baillie said, in his affidavit, " I produced.and showed an entry made in a book, when the said Mr. Cary asked, ' Bow about costs V " and the same expression was used throughoutthe others, as if intending to make the Court believe that it was an entry made in a pocket-book, or something of that sort, whereas it waß distinctly swore, on the other side, that the entry was made in the book required by law to be k£pt for that purpose. He (Mr. Gillies) must call that a moot disingenuous way of putting it, and he ' would call the attention of the Court to the 69th clause of the Goldfields Regulation!, which provides that "A minute of every suoh decision shall be entered by the Warden in a book to be kept for that purpose, and shall be signed by the persons who concur in making such decision, and no formal order snail be neossary, and a copy of tuch decision shall be given on demand to any of the parties interested therein." Here the Warden laid, " I produced an eptry made in a book, when the said Mr. Cary asked, ' How about coats V and I said, ai the plaintiff was to blame in not having paid the balance of the purchase money, I would let each party pay their own costs." That wai the expression used by all the parties on the other side, and quite accounted for this minute of the decision. It did appear to him (Mr. Gillies) that Mr. Baillie had forgotten his powers as a Warden when he made that alteration in the minute after delivering judgment. He forgot that portion of the 23rd olause which says, "but in default of any special direction such costs shall atirie the event of the action." It was remarkable that Mr. Macdonald, the counsel for the defendant as well as for Mn Baillie, who was present in the Warden's Court with the other parties, said nothing in his affidavit about this alleged conversation in regard to costi, and he evidently did 4ot hear it, and was dissatisfied with the decision, as shown in the original minute. Then let the Court take thi'B point with the faot shown to, that a copy of this minute in terms of the Act was furnished to both the plaintiff and the defendant, that one of these copies was in the handwriting of Mr. t)odd, that both were signed by Mr, Baillie, and yet neither of them contained any mention of costs. That was uncontradicted, for the Warden did not deny that he had signed them, and that neither of them contained any mention of costs. The assertion pat no Warden's lourt was held on the 20th, of April was a most disingenuous statement. There was the Judge, there were the counsel, and there was the day appointed for delivering judgment in ibis cause. ! His Honor: The only difficulty I see in this matter is, as to when this judgment was complete, for I must take it that there was a judgment. But When was that judgment complete ? That seemß to pie to be the only point. The terms of thece affidavits seem to me to be that the judgment was erroneous. The real question is, was that judgment complete ? We must go strictly to work at it, because the answer to the question is technical. We cannot go upon the ground that there wan no Court, beoause there was the Judge, and consequently there also was the Court. Mr, Gillies Mid the clause of the Act to which he bad referred answered the question, whether or not the judgment was complete. It stated that a minute of every such decision (i.e., judgment) was to be entered after judgment had been delivered. His Honor : Or else I must presume that the thing was not done pronerly. Mr. Gillies: Your Honor must presume that, judgment having been given, and a copy of the minute, with the Warden's signature, having been afterwards delivered to each of the parties, then, at least, judgment was complete according to the terms jof the Act. His Honor: If not, I must assume that the ■Warden has given out as a minute of his judgment something that is not so. ! Mr. Macdonald : That may have been the case in .the urst instance, what wai entered having been made before the judgment was, delivered. His Honor : If it has come to that, all the Court has to consider is how it affects the other side. Mr. Macdonald : Exactly so. His Honor : Well, then, the Court must not allow them to suffer by it. Mr. Macdonald: They then have to proceed against us for not having made a correct entry of our judgment. ' His Honor : That is coming to the same thing. It would be asking the Court to alter the judgment after it was delivered. Mr. Macdonald: The Court will see the entry of the' judgment is a distinct thing in itself. His Honor : That was a matter for the Warden. Mr. Macdonald : What we say iufarentially is that the entry did not accord with the judgment. His Honor : Pardon me, it does because you say it was delivered to the parties afterwards. As to the merits of the case, I apprehend it is not a matter for this Court to go into at all as to whether the parties are entitled to costs or not. Mr. Mandonald : Surely, if the Court delivers what is not a correct minute of its judgment, it cannot be contended that it is bound by the terms of the minute, and not by thoie of its judgment. His Honor : How are the parties to know what is the correot judgment unless by the copy of the minute, which the Act prescribes shall be given to them ? Mr. Gillies : And which the Act says " shall be prim& facie evidence of the judgment." Mr. Maodonald : The exaot position was a mistake His Honor : There was a dear judgment given, a minute of whioh was given to the parties in accordance with the Act, and then under that the parties had certain rights ; after that the Warden alters his minute. Mr. Gillies will withdraw all he has said about disingenuousness, and I must make the rule absolute. Mr. Gillies : I submit it must be with costs. His Honor said Mr. Maodonald had made the best defence he could under the circumstance, and he (the learned Judge) could understand the difficulties ,that had beset him. However, he had steered as close each way as he could, and it was a wonder that he had not run himself down. There was no alternative but to make the rule absolute. It was an unfortunate case, but if Mr. Gillies pressed for costs Mr. Gillies said it was a case in whioh costs ought to be allowed. Mr. Baillie had frequently been applied to before the present proceedings were taken, aud the rule bearing upon the case had been actually pointed out to him, but his answer was, that "he was not bound by any rules,and could alter his judgment fifty times if he chose." That was distinctly sworn to in the affidavits of Mr. MacCormick and Mr. Defaur {paragraphs 17, 19, and 22). That would show that there was no desire to bring the Warden before this Court, if he oould have been induced to reconsider his decision. Mr. MacCormick said it was not alleged that Mr. Baillie had any feeling in the case either way. It was simply an error of judgment. Mr. Gillies said it was simply a question as to who was to suffer. Was this plaintiff, who had been wronged by an error, or whatever else it might be, to 'suffer? His Honor said he could not see his way to disallow oosts, especially as Mr. Baillie had adopted the present course under Mr. Macdonalds advice. Mr. Baillie must pay the costs. Mr. MacCormick : And' the costs of the writ. I trust, however, my friend will not put us to the trouble of issuing a writ. His Honor ; It would be well to save the expense to Mr. Baillie. However, that rests with himself. VBRNON Y. BRUOB. Application for leave to enter up judgment, Acljo - ned until Friday next. BANE <H? NEW ZEALAND Y. GREAT BARRIER COMPANY. On the application of Mr. Gillies, leave was granted to enter up judgment in default of plea. IN RE E. OOLINSO. This was an application, in the matter of the petition of £. Colenso, for power to lease land; and, on the application of Mr. Macdonald, ,the case was adjourned until the first sitting in banco, on July Ist. MASEFIELD Y. SOMMUIBLD. This was an application by Mr. Gillies to set aside proceedings in consequence of an error in the writ of summons. The application was granted by consent of the other side. IN BI WILLIAM MILLER, A BANKRUPT. On the application of Mr. J. B. Russell, his Honor appointed Thursday, July 2ud, for hearing this case. MONK AND MORGAN Y. COLIMAN. This is an action on a covenant alleged to have been made between the partits. Mr. MacOormiolc applied to have tip iasues tattled. Application

granted, ai.d lienring fixed for forthcoming civil sittings. IN EB LOUIS 0. GOFFE, OF RUSSRIX, TRADER. The above person wbs adjudicated a bankrupt on his own petition, and mrt Saturday fixed for the first meeting of creditors. jThe Court then rose.