THE COURTS-TODAY

Evening Star, Issue 8554, 29 June 1891, Page 2

THE COURTS-TODAY

SUPREME COURT-CIVIL SITTINGS. (Before Hie Honor Mr Justice Williams.) BOBH V. WORKINGTON TRAMWAY COMPANY. Summons to stay proceedings. Mr Solomon (instructed by Stout, Mondy, and Sim) for the defendant company, and Mr W. Maogregor for plaintiff. In this matter William John Bush, the plaintiff, was called on to show cause why all proceedings in the action Bhould not be stayed until plaintiff has paid to defendant the costs referred to in an affidavit of W. A. Sim, and why defendant should not have further time to plead, and why the action should not be tried by a special jury of twelve, and why an order should not be made as to the costs of the summons—upon the grounds (1) that the costs should have been paid before the action was commenced, and (2) that this is a proper case to be tried by a special jury. In the course of bis argument in support of the summons Mr Solomon quoted and referred His Honor to Lord Cairns's decision in Cannot v. Morgan (1 Ch. Div., p. 3), to Prowse v. Loxdale (32 L.J., Q. 8., N.S., p. 227), to Martin v. the Earl of Beauchamp (25 Ch. Div., p. 15), to M'Cabe r. the Bank of Ireland (14 Appeal Cases, p. 415), to Randle v. Payne (48 L.T., N.S., p. 194), to Ernest v. Partridge (8 L.T.. N.S., p. 762), andtoHoare v. Dickson (7, C.8.,p. 727); and in his concluding remarks contended that the Court had jurisdiction, because where there was a conflict between law and equity, equity must prevail. Mr Macgregor argued in the first place that the case before the Court was not provided for in the code, or, that, at all events, the Court's jurisdiction in regard to such an application would be sparingly exercised; and learned counsel in support of this and other contentions quoted 'Cole on Ejectment,' p.p. 77, 121, 727; the full report of Martin v. Beauchamp; Dawson v. Sampson (2 Chitty, p. 146), Cobbett v. Warner (L.R., 2 Q. 8., pp. 108110); Danvers v. Morgan (25 L.J., C.P., p. 144); the Peruvian Guano Company Limited v. Bochvoldt (48 L.T., p. 410); Adams v. Brown (1 Dowl., p. 273); Budge v. Budge (12 Beaven, p. 385); Morton v. Palmer (9 Q.B D , p. 89); Tichborne v. Mostyn (L.R., 8 C.P., p.p. 29 34); and Short v. King (2 Strange, p. 681). After consideration His Honor delivered the following decision:—l have no doubt that the Court has a discretionary power to stay proceedings in a second action where the previous action in the same cause ha 3 been brought in the Magistrate's Court acd has resulted in a nonsuit, although there is no specific provision in the rules in respect to the matter. It seems to me to be necessarily part of the inherent jurisdiction of the Court to stay proceedings which are improper or vexatious. I think, however, that the Court ought to be reasonably satisfied, before staying proceedings, that the proceedings are. or are likely to be, vexatious to the defendant. Before the Judicature Act the cases of Prowse v. Loxdale and Cobbett v. Warner show that Common Law Courts would only stay proceedings in a second action where they were satisfied that the defendant was being harassed by the proceedings, and that it was unreasonable that the proceedings should be allowed to go on until the costs prior to the proceedings had been paid. In Chancery the practice appears to be different, and bo far as I can ascertain it seems to have beep treated as a matter of course that, whether the second proceedings were vexatious or not, they should in all cases be stayed where costs of the first proceeding had not been paid. The rule in the Common Law Courts and in the Court of Chancery was, in my opinion, a rule of procedure only which each Court had adopted for its own guidance. The case therefore does not come within the provision of the Judicature Act which we have adopted, which enacts that, where th.ere is a conflict between law and equity, equity is to prevail. That applies to matters of substantive law. It does not apply to the procedure of the existing courts. In fact, by the 115 th section of the Judicature Act of 1875 the previously-existing procedure of the courts, so far as there is no express provision to the contrary altering that procedure, is preserved. I see, therefore, no reason to suppose that if this case bad been brought as it would have been brought in England, in the Queen's Bench Division, it would have proceeded on any other grounds than the Court of Queen's Bench had in Cobbett v. Warner. I do not think that the effect of the decision of the House of Lords in M'Cabe v. the Bank of Ireland was to overrule the series of cases of which Cobbett v. Warner was the last-, or to alter the procedure in any of the like cases. As in the previous case, therefore, it is admitted that the proceedings in this Court are cot harassing or vexatiouß, I do hot think that I ought to make it a condition precedent to allowing it to continue, to order that the costs in the Magistrate's Court should be paid. His Honor thereupon discharged the summons, giving the company tjll to-morrow to I plead. Cost of the summons (L 3 3s) and disbursements to be paid by the company. Order : One clear day to plead ; order for special jury ; costs, L 3 39, and disbursements to be paid by the defendant company. SAJJK V. SAME. Motion for order to examine witness before Registrar (Mr W. Macgregor).— Accordingly, SUPREME COURT - DIVORCE AND MATRIMONIAL CAUSES. (Before His Honor Mr Justice Williams.) TRATT V. PRATT. A wife's petition for dissolution of marriage. Mr J. G. Findlay, of Palmerßton, in support of the motion. There was no appearance by or on behalf of respondent. The petition set forth that the petitioner, Margaret Louisa Pratt, and the respondent, Henry Pratt, both aboriginal natives of New Zealand, were married at the Bluff by the Rev. G, Clement on the 6th February, 1888 ; that one child was born of the marriage; that respondent deserted his wife without cause for upwards of two years ; and that respondent had at various times committed adultery with a Maori widow at Greytown, and was now living with her. Mr Find lay stated that some time before her marriage the petitioner was residing at the Bluff, and there became engaged to the respondent. At that time the petitioner was an orphan, and the marriage seemed to have been an unwise one, for the respondent possessed little of this world's goods, and the petitioner bad, after the marriage, to pay his husband's fare and that of some of her friends to Puketeraki. The parties lived there together for some eight months —until October, 1888—but during that time the respondent was frequently away from home. He started a small shop at Puketeraki, bnt did not attend 'to it, leaving his sister in charge, while he spent his time in Dunedin following, as far as could be ascertained, a fast life. For more than half that time he left his wife without letting her know where he was going, and without supplying her with any money whatever. About a fortnight before he left his wife finally the respondent went to the Taieri, and at that time he was believed to be "carrying on" with a barmaid in Dunedin. He returned for a few days, and told his wife that he was going away. Sheaskedhimnottoleaveher. Hewent away, -however, and for five or six months after that the petitioner did not hear where he was. He had left her in a state of complete destitution, and it had probably come to his ears that his wife proposed to institute proceedings, for at the end of February, 1889, she got a curt note of a few lines from him, in which he stated that he was in the North Island, and that she could join him if she : chose. She immediately, replied informing him • that she would come if she bad money, but she obtained no 'reply. After the child was born she again wrote, begging him to return, but she received no farther communication from \k\m. The respondent's father afterwards wrote to the petitioner; to tell her that her husband waf jiyin"' in adultery with the cp-'ijsespqndent at Qreytown. She verified this information, and in February, 1890, she sued her husband under the Destitute Persons Act {or maintenance 5 Dnt BDe withdrew the information upon a representation being made that the respondent would convey a small parcel of land to the petitioner, and that he would subirit to an order being made for the custody of the

child. The respondent had not contributed a single farthing to the support of his wife he left her in October, 1888. The petitioner had a small sum of money when she -was married, bat the respondent dissipated nearly the whole of that, and at no time did he ever give her any money at all. Margaret Louisa Pratt, the petitioner, and John Urn (who gave evidence that while he was in the employ of the respondent at Greytown in 1890 the latter was living with a woman named Ngahui, who passed as his wife) gave evidence. His Honor granted a decree nisi, with costs ; the decree absolute to be applied for at any time after the expiration of three months. / RESIDENT MAGISTRATE'S COURT. (Before £. H. Carew, Esq., R,M.) There being no appearance of defendants, judgment was given by default in the following cases:—M. Meenan v. K. Williamson (Roslyn), L 6 19s sd, 20s having been paid since the issue of the summons ; G. and T. Young v. W. Leslie (Wellington), L 3 7s 6d, for jewellery (Mr W. Stout for plaintiffs); R. Greig and Co. v. J. G. Scott (Caversham), LI 5s 4d, for timber (Mr Bannatyne for plaintiffs); Equitable Insurance Association (in liquidation) v. G. M. Hardie (Wellington), L2 13j 2d, for calls; George Turnbull and Co. v. William Thomson, 19s 2d. R. Rae v. Andrew M'Lean.—L2 Is lid, on a judgment Bummons.—An order was made that defendant pay 5s per week till the judgment was satisfied. Bowerman Bros. v. William Michie.— LlO 03, for forty-one parts of the ' Picturesque Atlas of Australasia.'—His Worship gave judgment in this previously heard case as follows:

The plaintiff's witnesp, Mr Metcalfe, has a worn that he canvassed the defendant for the 1 Picturesque Atlas,' that he agreed to take it, and signed the order produced. The defendant has sworn that he agreed to take one part of the ' New Zealand Atlas' only, at the price ot five shillings; that he did not sign the order produced, the signature to which is written with an indelible pencil; and that it is a forgery. He says he signed his name to the subscribers' sheet, and also in a small book, and both signatures were wiitten with a pen and ink. He also sayß that Metcalfe held a sheet of blotting paper in the page of the book he signed, and that he saw no writing or printed words; that all above where he wrote was covered with the blotting paper. Miss Michie has also sworn that her father wrote with pen and ink, and not with a pencil; that she was standing at the time at the same table, but did not nee whether there was blotting paper in the book or not, The defendant says that he saw the paper he was signing was covered above Mb signature, and that Metcalfe looked afraid to take his hands oft' the book because the blotting paper might come away. It is scarcely possible, and highly improbable, that a man could be so simple as to give his signature under such circumstances, especially a man who, like the defendant, had had a previous unsatisfactory transaction with a book agent. Miss Michie may have sworn what she believes to be true; but ahe mi't be a. very clo3e observer and b&ve an unusually goal memory to be ab'e to say positively after the lapse of three years that her father d'gned on both ocoasiors with a pen and ink, and not with a pencil. She did not see the signatures after they were written, but what she avers to remember is the kind of instrument with which he wrote, both pen and pencil being within reach at the time. If defendant wrot* with pea »nd ink, and not with a pencil, thi. order produced is of course not signed by him ; but what could be the object of substituting a forged order ': If Metcalfe fraudulently obtained defendant's signature in the manner sworn to, his object must have been to prove an order for the 'Picturesque Atlas' nothing eleo is probable—and having obtained it, is there any probability that he would resort to a forgery ? The defendant admits the signature is very like bis, and It indisputably closely resembles those he wrote in tho Court. lam not satisfied tnat the signature is a forgery or That fraud has been proved. Judgment for plaintiff for LlO 53, with costs (L 3 6s).

Mr North, who appeared for the defendant, asked that the order might be impounded, and it was agreed that this should be done for seven days.