SUPREME COURT.—IN BANCO.

Otago Daily Times, Issue 2000, 28 May 1868, Page 5

SUPREME COURT.—IN BANCO.

His Honor, Mr Justice Chapman, sat ■in Banco on Tuesday, in the old Resident Magistrate's Court, the Court proper boing occupied (by permission) by tho Lands Court.

JUnOMBNT.

Russicix v. Baktox.—His Honor delivered judgment as follows :— This is a rule calling on the late Sheriff to show cause why he should not pay to tho plaintiff's attorney, Mr Smythies, a sum of money duo to him for costs m tho action. Tho plaintiff had recovered -damages against tho defendant, and the Plaintiff's attorney lodged with tho Sheriff a writ of ca. sa. The plaintiff had settled the action behind his attorneys back, and he directed tho Sheriff not to -arrest the defendant, and also to dis : charge him out of custody, if arrested. The Sheriff did discharge tho defendant, in spite of a notice from Mr Smythies that he had a lien on the judgment for his costs. The question is, whether tho Shorift was justified in so doing; or whether, after notice of the hen, ho should have detained the defendant in custody. .....(. .. . . . , Ifc has always been my impression that •a plaintiff has authority to settle an action Wth a defendant after judgment, in Brtite of what is called the attorney's lion: "but Mr Smythies raised a question -which I desired to consider, namely, •whether, to justify the Sheriff iadischarg-

ing the defendant, it was not necewary that ratisfaction should first bo entered upon the record. I can find no authority for that proposition, and the rules laid down in some of the cases, and especially in Martin v. Francis, are inconsistent with that view. Indeed, I can see no distinction between the case of Martin v. Francis and tho case before me. There, the plaintiffs attorney had ordered or directed tho Sheriff not to discharge, the defendant, stating (aa in this case,! ***** he had a lien for costs. Notwithstanding this direction and notice, the Sheriff, by the direction of the plaintiff (as in this case, also), discharged the defendant. An application was then made to the Court of King's Bench (also similar to this), that the Sheriff should pay to the plaintiff's attorney his costs; but the Court discharged the rule, on the ground that the attorney had no lien on fche body of the defendant. Mr Smythies suggested that, possibly, satisfaction may havo been entered on the record In Marr v. Smith, the Court of YKing^s Bench discharged the defendant from custody after such satisfaction; bufc Martin y. Framii does nofc depend on satisfaction being entered on fche record, but on the propriety of the Sheriff's conduct in discharging tlie defendent by the direction of the plaintiff, and in spite of the attorney's direction to tho contrary. The entry of satisfaction, or the want of ifc, is not an element in tho ground of decision. In Marr v. .Smith, although the Court held that there was ho authority for refusing to discharge the defendant. Lord C. J. Abbott said that "he very much disapproved of tho conduct of the defendant, who having himself been an attorney, must have known that tho plaintiff's attorney had a lien on the judgment," and thafc censure seems to me to apply to the defendant's attorney in this case, rather than to the defendant himself. But I have no doubt as to the plaintiff's competency to settle with the defendant or with his attorney. He con sue out execution through the instrumentality of another attorney, and it will bar a second execution by fche attorney on tho record.— Graves v. Eades (5, Taunt. 429). He may discharge the defendant out of custody.—Martin v. Franch. He may enter satisfaction on the record.— -Abbott v. Rice (3, Bing. 132), from which entry the defendant's discharge will follow as a necessary consequence.-— Marr v. Smith. He may enter a stet processus, or the like. — Qiwted v. CoUis (1.0, YM. and W., 18); and in all these cases the attorney's lien will bo defeated In many cases, no doubt, tho Court will interfere to give effect to the attorney's lion, where collusion can bo shown between the parties ; but that is a very different thing from punishing an innocent Sheriff. This rule must therefore be discharged, and fche Sheriff is entitled to his costs.

Rule discharged, with costs,

Commercial Bank of Nkw Zealand v. Hutchison.—-On the sfch inst., Mr Macassey, for the defendant, obtained a rule nisi for a new trial, on the grounds— 1. Discovery of material evidence, which could not have been foreseen or known beforo the trial.—2. That tho findings of tho jury on the first, second, and last issues are so defective, that judgment cannot be entered thereupon. —3. Thafc tho verdict of tho jury was against the weight of evidenco on the issue raised by thesecond plea.—The'material portion of the evidence discovered, was set forth in affidavits by Andrew Lees, A. J. Buisson, and 11. Brett; its effect, as claimed in other affidavits, being to corroborate the evidence of the defendant and Mr J. It. Mackenzie. '

Mr Macassey now moved the rule absolute, and Mr James Smith showed cause, The Judge took time to consider.