COURT OF APPEAL.

New Zealand Times, Volume XXXI, Issue 4891, 24 November 1876, Page 2

COURT OF APPEAL.

Thursday, November 23. (Before their Honors Mr. Justice Johnston (presiding), Mr. Justice Williams, and Mr.

Justice Gillies.) The Court of Appeal sat as above at 11 o’clock, his Honor the Chief Justice not taking his seat, being interested in the case which occupied the attention of the Court.

WEBB V. THE NATIONAL BANK OF NEW ZEALAND (LIMITED).

Mr. Macassey and Mr. Mouat appeared for the appellants, and Mr. Travers and Mr. Stewart for the respondents. Mr. Macassey stated the case for the appellant, which was an appeal from a decision of Mr. Justice Williams, in the Otago and Southland district. The appellant had recovered £3OOO for damages against the respondents, and a rule bad been obtained by the respondents to set aside the verdict and have it entered for them- The appeal was against the verdict. The declaration contained four counts, and the respondents had pleaded to all four a justification under a bill of sale. The cause was tried on the 17th, 18th, and 19th January, 1875, and a rule nisi was obtained by the respondents on the 29th March in the present year, calling upon the appellant to show cause why this verdict should not be set aside, and entered for. them as before mentioned. This rule was made absolute on the 27th March, and the first objection he (Mr, Macassey) had to raise, apart from other legal arguments, was, that the rule nisi was granted after the fourteen days prescribed by the Rules of Court in such cases had expired. The civil sittings at which the case was tried, ended on the 22nd January, and an ex parte application was made on the Ist February, on behalf of the respondents, that the time allowed for making application for the rule might be extended. It was not until the 15th February that the appellant's solicitor became aware of any such application having been made. The first available sitting in banco for an application for a nile nisi, was on the 18th Marchjaud then another ex application was made for an extension of time. The appellant’s solicitor happened to be in Court at the time this application was made, and entered a strong protest against it being considered. Mr. Macassey then submitted that the granting of the rule nisi, under the circumstances before narrated, was ulti'a vires under the Rules of Court. The appellant, who bad recovered a and a judgment thereon had a right to execution in 14 days, and notice should have been given to him of any application which might tend to ■: deprive him of this right. Rules 184 and 185, as amended in 1870, bore him out in this theory, and he looked upon them as of great value in illustrating and explaining the amended rules of 1872. A distinction should be drawn between a motion for a rule and an application for a mere extension of time to move the Court. As illustrating this principle, he would mention that it had been the

practice of one Judge to extend the time »1« lowed for the complete execution of composition deeds under the bankruptcy law, and his decisions on this subject had been overruled by the Lords Justices. There were three courses open to an unsuccessful litigant, viz. (1) to move for a rule at the first available banco sitting after the trial; (2) to obtain an order in chambers within 14 days of the trial; and (3) after satisfying the Judge by affidavit or otherwise of the fitness of the application to move for a rule. The respondents had not adopted either of these three courses, and were consequently out of Court. Danbury v. Shuttleworth, L. Reps., 1 Exchequer, Div. 53, illustrated the practice under the new Judicature Act in England, which had a very close correspondence with the practice in these cases under the New Zealand Rules of Court.. A case reported in the Law Reports, Chancery,. in re Power, dealt with the question of composition deeds, to which, he had before referred, and,the Chancellor holding that the time allowed by law could not be extended. His argument was based on the fact that the appellant had obtained a vested interest by the judgment, and ought - not to be prejudiced by a mere ex parte application. His Honor Mr. Justice Williams had given expression to views which coincided with his own in a case reported in 2 Jurist, U.S. 143, in re Herrington. As to the English practice, of moving within the first four days of the term succeeding the decision Lanyon v. Kelly, 8 L.J., Q B.', F 40, fully explained the leading principles, and - in Chitty’s Archbold, p. 656., the doctrines on the subject were laid down. He would submit that the rule had been improperly granted, and that the decision of the lower courst shuuld be reversed.

Mr. Travers, on behalf of the respondents, said that he differed entirely from his learned friend’s construing of the Rules of Court, subsection 2 of rule 184, as if there was a full stop after the word place. The first part of the rule up to the stop was mandatory, and the second only ■ directory. The words “fourteen days” referred to rule 185, and the latter part of the rule applied to a Judge in Chambers only. If a party did not avail himself of his rights to intercept judgment and execution, it would be his own fault if the other party issued execution, and he had to run the risk of this. Assuming that the application by the respondents on the 16th March was a proper one, they were quite in time. The first part of the rule imposed a duty, and the second gave a privilege. They were under no obligation to make use of the privilege, but might let judgment and execution go. In dealing with this matter it should be remembered that a distinction was drawn all through the rules between the Judge in Chambers and the Court.

Mr. Stewart followed on the same side, and quoted in support of his position Rex. v. Goff, reported in 2 Douglas, and Rex v. Holt, in. 5 Term Reports. The present question was one of practice only, and the Appeal Court should not interfere. The respondents had done everything which was required of them by law. He would presume that theCourt would assume that the Court' below had! acted in a proper manner, andinaccordance with the law. The Hilary Term Rules of 1853 under the Procedure Act were Of a similar character to the New Zealand Rules, and the construction put upon them in Chitty’s Archbold showed clearly that discretion was exercisedby the Court. His Honor Mr. Justice Johnston pointed out that the view laid down was a judicial declaration that under certain circumstances the power ought not to be exercised. The policy of the law as to new trials was to prevent delay. Mr. Stewart then proceeded, and said that the cases he had referred to in Archbold were decided on a rule similar to the New Zealand Rule.

His Honor Mr. Justice Johnston at this stage of the proceedings called for the Sergeant of Police, and instructed him to see that silence was kept within the precincts of the court. Mr. Stewart - then argued that there had been no mention by the appellant of his rights; The right of the Court to extend the time for making application for the rule was a mere question of practice, and he would leave the case in the hands of the Court. Mr. Macassey then replied, and

His Honor Mr. Justice Johnson intimated that the Court would give judgment on the point raised next day. ' The Court then adjourned until 11 o’clock next day.