COURT OF APPEAL.

New Zealand Herald, Volume XXVIII, Issue 8705, 23 October 1891, Page 5

COURT OF APPEAL.

A WAIORONGOMAI MINING CASE. [BY TELEGRAPH.— OWN CORRESPONDENT.] Wellington', Thursday. In the Court of Appeal to-daybefore Justices Richmond, Williams, and Dennistonthe case Guy (appellant) v. Ferguson Syndicate Company (respondents) was called. Appellant was a plaintiff in the Resident Magistrate's Court. Mr. Alexander was for the appellant, and Mr. Thco. Cooper for the respondents. •= The appellant is a working miner and the respondents are a goldinining company. Both reside and carry on their business at Waiorongomai Upper Thames. The presunt>Appeal is from a decision of Mr. Justice Conolly under which was issued a writ of prohibition against the Resident Magistrate, restraining him from further process against the respondents on the ground that the Residont Magistrate had no jurisdiction against a foreign company." Tho facts before tlieCourt below were the follow — The appellanthad sued for wages in the Resident Magistrate's Court, the summons being served on one Thomas Melville. During the proceedings Melville was mentioned as attorney for the defendant. The particulars of demand were also served on Thomas Melville. The counsel who appeared for Melville objected that there was a misdescription of the defendant, which objection the Resident Magistrate allowed, but the Resident Magistrate having amended the proceedings, proceeded further against the company, His power to do this was the chief point contested. Tho Resident Magistrate gave judgment for the plaintiff. To restrain further process under this judgment the writ of prohibition was sought in tho Supreme Court, and granted by Mr. Justice Conolly. The objections taken to the appellant's claim before the magistrate by the respondent were that the service of the summons was insufficient, the real defendants being a foreign co.mpany not residing in the colony that tho Resident Magistrate having decided that the description of tho defendant was not accurate, he had no right to proceed further. Mr. Alexander was heard this morning for the appellant, that as a matter of law it had been held that a company must be deemed to reside where it carries 011 its business. The respondent company is a British company, incorporated and registered in Scotland. It was clear from the authorities that a foreign company could bo sued in tlio colony where it carried on its business. It was not denied that Melville was the attorney for the company, and if he could not be served, then nobody could be served. Besides, the question of " servico" was one only for the magistrate, and if it wore otliorw'sj prohibition was not the remedy. Appeal, not prohibition, was the remedy. If the contention of the respondents were allowed, the consequences would bo very serious, because no one cquld recover against a foreign company because no person representing them could bo served with legal process. If the remedy of prohibition were held to be the proper remedy for an amendment of service by the Resident Magistrate it would oust the jurisdiction of the magistrates in a great number of the cases for which the Resident Magistrate had jurisdiction. A British company might be sued in New Zealand. The Foreign Companies Act, 1884, did nob apply to it, that is to say, it does not come within the Act of 1884.

Mr. Tlioo. Coopor said the case in the Resident Magistrates Court was a suit between Robert Guy, plaintiff, and Thomas Melville, and the history of the case would show the Court that the suit Wijs brought against Melville personally, and not'.igainst the attorney of the syndicate company. The Resident Magistrate, Mr. Northcroft., in amending the proceedings struck out the name of the defendant, an amendment which was equivalent to inserting a new defendant. The real questions before Mr. Justice Conolly were two(1) Whether the Magistrate had power to make this amendment; (2) whother the case of this company came within the operation of the Resident Magistrates Act of 1807. If even the Court of Appeal would hold that Mr. Justice Conolly had decided in error, still these two grounds were quite sufficient to support the writ of prohibition, if the learned .Judge held for the respondents' contention on one point, there was nothing to prevent the respondents' counsel relying upon the other points in support of the judgment. The summons Was against Melville as an individual in his personal capacity, and not as attorney for any othor persons. Mr. Northcroft, the Resident Magistrate, evidently saw that tho real defendant was the company, and hence his amendment. If Melville had not. attended, and judgment were given for the plaintiff, execution would have been lovied against his own goods. Mr. Alexander will bo heard in reply tomorrow.