COURT OF APPEAL.

New Zealand Times, Volume XXIX, Issue 4271, 27 November 1874, Page 3

COURT OF APPEAL.

Wednesday, 25th November. (Before their Honors Mr. Justice Gresson, Mr. Justice Eichmond, and Mr. Justice Chapman.) THE OTAGO AND SOUTHLAND INVESTMENT COMPANY, LIMITED, APPELLANTS, AND ARTHUP. JOHN BURNS, RESPONDENT. Mr. Smith and Mr. Stout for the appellants, and Mr. George Cook for the respondent. Mr. Stout continued the argument on behalf of the appellants. He referred to the manner in which the proceedings of superior Courts could he proved, citing Dyson v. Wood, 3 B. and C, 451 (C. J. Abbott's judgment) ; also Harmer v. Bean, 3 Car. and Kir., 307 ; also 9 and 10 Vict., c. 95, sect, iii., con trasting that statute with the provisions of the Resident Magistrates Act, 1867. Besides, there was no proof in the special case, and hence before the Court, that there may not have been a record in the Resident Magistrate's Court. No objection was taken to the admission of evidence in the Supreme Court, and as the jury had found the facts, the Appeal Court was bound by their findings of the judgment and the points decided in tho Magistrate's Court. Mr. Cook argued on behalf of the respondent. There were five points to be considered. Ist. Did the magistrate decide tinder the agreement or on matters outside the agreement ? 2nd. If under the agreement, was it necessary to decide whether the plaintiffs had elected to be satisfied with the securities, and that they had given notice of such election ? 3rd. Did he so decido ? 4th. If he did so decide, did he have jurisdiction so to do ? sth. If he decided outside the agreement, did he decide anything more than simply that £75 was due ? The loan was for nine months, not for five years, hence the necessity of election. Mr. Justice Chapman : The prima facie effect of the agreement is that the loan in for five years, but with a contingency that it may be only for nine months. Mr. Justice Kichmond : Are not all the facts of tho third replication found for the appellants ? Mr. Cook : Yes, that is so, but I shall show that the Kesident Magistrate may have decided that £75 was due without deciding question of election. In fact, the judgment given by the magistrate shows he entirely missed the point. The Company had to elect. They were to be active, not passive. Ignoring this, led to the magistrate's blunder. But if lie did decido that fact, ho decided the loan was for five years, and that the respondent was liable not for £75, but £l2O0 —and he had no jurisdiction so to do. His decision bound the respondent to keep the money. It would be a monstrous proposition to say that a magistrate could decide a man was liable for £I2OO. The cause of action was not tho same before the magistrate, and in the Supremo Court. Six things were necessary to make an estoppel binding. Ist, real dispute; 2nd, real plaintiffs and defendants; 3rd, real issue; 4th, real judge; sth, real decision; oth, decision must be as to the same point. The judgment in Outram v. Morewood in respondents favor. The subject matter was not tho same. Mr. Justice Eichmond : No doubt jurists arc in your favor, as cited in Barra v. Jackson, but is that the rule in the other English cases 1 Mr. Cook : The groat question here is, had tho magistrate jurisdiction 1 Mr. Justice Chapman : I think that is only half the question.

Mr. Cook: The magistrate may have omitted to decide the election, and the Court must assume he decided only the bare fact, viz., that the sum sued for was du». I shall cite cases in support. Mr. Justice Gresson : Do you say that the Court can look at the ratio decidendi of the magistrate. Mr. Cook: Yes. Moses v. Macpherson, 2 Burr, 1009, Don v. Lipman, 5 Cl..and Fin. 1, show that reason for decision will be looked at. Mr. Justice Chapman : The Court will not inquire into the legal merits of the decision so long as the judgment is unreversed. Mr. Justice Richmond : Foreign judgments are allowed to be impeached when against common justice. Mi-. Justice Gresson : Such as where party not served, for example. Mr. Cook : I submit if fraud shown or a suppression of facts, judgment will be ignored. Bandon v. Belcher, 3 CI. and Fin.; Gone. v. Stackpbol, 1 Dow. Court can enquire whether fraud was used or not. Thompson v. Blackhurst,;2 1,.J., Q.B. 97; also 1 Nev. v. Man, 266. In this case there was no proceeding on which a magistrate could found his decision. No evidence. Mr. Justice Richmond : That is matter of appeal, and cannot be questioned now. Mr. Cook : There must be a proper foundation for a judgment. The Colonial Bank of Australasia v. Willan, 43 L.J.P.C. 39. The Resident Magistrate should have stayed his hand whenever the question of election came up for decision. The reasons of the Resident Magistrate may be looked at —(Rentiers v. Druce, 23 Beav. 145) —and his reasons show he omitted to notice the question of election. Then even did he decide election he had no jurisdiction, as he thereby decided the respondent was liable to pay £I2OO. Mr. Justice Richmond : Mr. Stout's argument was that he did not necessarily decide the respondent was liable for further payments, but that he only decided this one "defence' against him— non constat, he had other defences. Mr. Cook referred to 2nd vol. Smith's, Leading Cases, 657, 675. There the Court does not know whether the issue in which the estoppel rests was distinctly raised or not. As to demands recoverable in a Magistrate's Court, Bee section 19 of the Resident Magistrate's Act, No. 7, and the Victorian County Courts Statute. The case of Brown v. White, 2 A.J.R., is in point, as the result of the deci-" sion was to deprive the respondent of one defence he had, and hence leaving him liable to payment of the £I2OO. No magistrate can by stretching Ills jurisdiction give himself jurisdiction—British Industry Assurance Company against "Ward, 17 C. 8., 644. In that case County Court's decision overruled, as no evidence to support it. So in the case of Cuthbertson v. Parson, 21 L.J., C.P. 155, as no inferences of fact would support judtjment, it was overruled. Then further, as to estoppel, Barrs v. Jackson, 1 Q. and Colyer ; Hobbs v. j Henning, 17 C.8.,N.5., are in respondent's favor. Estoppels may be abused as in present case, as the jury negatived a magistrate's decision. Mr. Justice Gresson : The case you now cite only shows that there is no estoppel where there are neither the, same parties nor their privies. Mr. Cook : That case only carries out the doctrine of Outram v. Morewood as to the Court assuming jurisdiction. See Bunbury v. Puller, 9 Exch., 140 ; Pease v. Chayter, 3 B. and S., 640. In the case of Regina y. Hartington that a judgment where the Court above had jurisdiction, and a judgment in rem. There is a great difference between judgments in rem and in personam. If the cause had been tried in the Supreme Court, and the issue found, then no doubt that judgment would have been an estoppel in the Magistrate's Court. There is no difficulty in finding what was determined in the Supreme Court, as there is a proper issue paper. McCallum v. Cookson, Boileau v. Rutland, Howlett v. Tarte, and the respondent. Magistrates' Courts differently constituted to Supreme Court. Pearson v. Clark, Mac. Repts.; Comyn's Digest, vol. 4, Tit. Ev., Al p. 86 ; Sopwith v. Sopwith ; Stoate v. Stoate. Then order granting leave to plead third replication should not have been granted, as former order allowing it to be withdrawn was, made by consent. Shepelar v. Divrarit, 23 L.J., C.P., 140; Harrises v. Thomas, 2 IX. and W. 32 ; Daniel's. Chancery Practice, pp. 875, 1344 ; Thames.lron Works Company v. Patent. Derrick Company, 29 L. J., Ch. 714 ; Lush Practice. The Court ought to find generally for respondents, making the costs of the rules, etc., costs in the cause. Mr. Smith mentioned that he intended to cite Taylor on evidence, p. 1346,-section 1408; and Manning v. Eastern Counties Railway Company, 12 Mee. and Webs., 237, as to how proceedings of inferior courts were proved. The Court then adjourned till next day.