SUPREME COURT.—IN BANCO.

Otago Daily Times, Issue 1153, 31 August 1865, Page 5

SUPREME COURT.— IN BANCO.

(Before their Honors, Mr Justice Rich-

mond and Mr Justice Chapman.) Wednesday, August 30tii.

Re Jambs Ar,M-:y.—Mr Cook moved on a petition in lunacy; and it was ordered that a Commission should be issued to Mr Barton, to enquire and report as to the state of mind of Allen; the petitioner to have the carriage of proceedings. injunction. Dalgety and Others v. Aivurv and Another.—The plaintiffs are Messrs Dalgety, Rattray and Co ; and the defendants are Messrs Ambrose Awdry and Thomas Parsons Boland. Mr Cook now moved ex part,; for aa injunction; and it was granted, in terms of the second paragraph of the declaration, to restrain the defendants from transferring the license of Rua No. 31, known ns the Wairima Station, to any person whomsoever; from selling or mort^a^ing or in any way encumbering the right and titb of the defendants in the s-iid run, or in the 10 acres of land, the subject of the preemptive right belonging thereto, or in any of the cattle, sheep, irnproveueuts, &c, on I the said run. AM ARBITRATION*. Mr Barton applied, in the matter of the arbitration between the Superintendent and Messrs James Lonnie and Co, to be allowed, on filing the necessary aifi^ davits for making the submission a rule of Court, to have a rule nisi granted to set aside the award. The Court held that nothing could be : done as to the rule nisi uutil the submission was made a rule of Court, and was, as such, before the Court; and that it would not be safe for Air Barton's clients, if there was any attempt to hurry proceed inga. Mr Barton urged that time was of great importance, there being LSOOO or Llo,ooo involved, as well a3 the question of the continuance of an important contract. The Cjurt said that it' the submission was made a rule of Court as speedily as possible, Mr Barton might move on Friday for a rule nisi. judgment. Bank of New South Wales v. Dansey. —Mr Justice Richmond delivered judgment, as follows: — In this case, a rule was obtained by the plaintiff on the 16th Augmt, calling on the defendant to shtw cause why a rale obtained by the defendant, on 7th August, for the dismissal of the action, should not be sat aside, with co-»ts. The rule nisi was argued at the last sitting in Banco, and the Court took timj to consider of its judgment, with a view to lay down a rule upon the points raised by I his motion. Two objections are taken t3 the rule obtained by the defendant on the 7th August : first, that it should have been moved for on three clear days' notice, a3 required by rule 490; secondly, that the rule makes the cc>3t3 of and incidental to the motion to dismiss, payable by the plaintiff to the def jnda:it. We are of opinion that both obj :ctiou3 are valid. The Court ha? often had under its consideration the terras of Rule 403; and has expressed the opinion that rules of Court to dismiss for want of prosecution, need not be ru!es"t> show cause ; and to that opinion we adhere. Trie second clause of Kule 403 divides the defaults of the plaintiff, on which, the defendant may move to dismiss, into two classes : firs', defaults in taking a step for which a time is limited by a general rule j of practice,- secondly, defaults in taking a step for which no time i 3 so limited. The first portion of the 3rd and last clause of Rule 408—" whereupon it shall be lawful i for the Court to ordjr such aotion to be I dimissed"—applies to both classes of de- j fault. We read the word " whereupon " ! as meaning " upon which motion," and net as referring to the expiry of the time limited by the Court for the plaintiff's next proceeding. It follows, that the existing practice of granting- thee rules in snch a form that they make themselves absolute, if the plaintiff fails to take the step within the time thereby limited, is correct. It also follows, that the plaintiff is en- j titled to notice of motion; for the rule not being a rule-to show cause, does not fall within the exception of Rule 490. The latter part of the 3rd clause of Rule 408, and also Rule 412, both suppose that the plaintiff is before .the Court when the rule to dismiss is obtained. IWe may observe, however (though not

as affecting; Abe Opinion just expressed), that the latter partof the 3rd clause of Rule 408, applies only to cases where the' plaintiff fiiils to take some step for which a time ia limited by some general rule. The "further time," there referred to, is fur-: ther time beyond the time limited by the general rule of practice. If no such further time be allowed, the rule to dismiss would, in that class of cases, be absolute at once.

As to the second objeation, we have no doubt the defendant's rule is wrongly drawn up. The Court could not order the plaintiff to pay these costs without giving him the opportunity of being heard or a locus pmnitentia: and we are per-

■suaded that the Court did not grant the rule in this shape. Mr Justice Ciiapman's note shows that the rule aa granted was amply to dismiss the action, with costs, unless the plaintiff should take the next step within three days—thus not giving the costs o( the application otherwise than inclusively in the costs of the action. Where, however, the plaintiff* has bad, as he ought to have, notice of motion, it may be proper absolutely to give the defendant the costs of the motion to dismiss. Rule absolute, but without costs.

The Court was adjourned until Friday, when Mr Justice Cliapman will hrar the application for the rule nisi in Messrs Lonnie's case.