SUPREME COURT—IN BANCO.

Otago Daily Times, Issue 2125, 26 November 1868, Page 3

SUPREME COURT—IN BANCO.

TcnsDAY, Inov'kmjteii 24th. (Before IU« Honour Mr Justice Ward.)

AI'I'UCATION FOH AN I.VJ J/NCTJON.

Boinov ,\si> Others v. Tub Nkw ZeaLAN7I r,'l>|;j,tx jVs.SOI.TATIO.V (LIMITKO). — Mr M^cassey moved for an interim injunction to restrain the defendants from exercising pmvera of sale over n number of runs in the Province and over the Brock therein contained. The circumstance.* of tho ca«o are as follow : The applicants (runholdera of Otayo and Southland), desirous of increasing their capital for tho carrying on of their respective appearances ro».olved to raiso L.'50,000 or MO,OOO on loan. Xof, being able to get tho money here, they uppointed Mr Reid their attorney, and vested him with powers to proceed to England, and, if possible, get tho loan Tho power of attorney granted to him was, as the applicants allege, clear and definite as to tho tt-nnii upon which the money vr.w U> bo borrowed, the manm-r in which the mortgage upon their runs was to be ofibcted, and tho terms of repayment, Mr Reid had paid a visit to Eii;<l,'nd, and had induced a number of capitalists to form themselves into a limit ed! iabi! i(,y company, under the title of tho New Z-j.-il.-ind Credit Association, and to advance the money. It was contended j by the applicants that Mr Reid had exceeded his powers in raising the loan, and that tho co-iditions attached were such as tho plaint-iff were not bound in law to abide by, as what he had authority to do was clearly defined in his power of attorney, and in a letter which accompanied

The injunction, as prayed for, waa granted.

A QUESTION Of COSTS.—THE DILL CAKE

Bank of Otaoo v. Royse and Others. —This case had stood over for argument upon the question of costs.

The Judge asked what was tho position of the casd.

Mr Mncfißsey said he had been infltructed not to proceed any further. The bill of exceptions would lapse for want of argument, and tho application for a now trial will also Japso.

Mr Smith urged that there was no right to waive tho bill of exceptions when the Court w.is in possession of it. Tho only way to dispose of it, was by order of tho Judge, and costs would follow that order.

Tho Judge : There is no doubt the plaintiffs ought to hav?the cost*.

Mr Smith : They cannot get them without an order of the Court.

The Judge : I agree with you. Tho best way would bo to consent to the waiver of the bill of exceptions, upou payment of costs.

After further argument, leave was given to withdraw the Mil of exceptions, on payment of costs. ADJOURNMENT. Harris ». SiiANir.Y. —By consent, the hearing of motions in this case was adjourned until the next JJanno day. A I'ARTNBKKIIII' MSITTK. Sta.MI'IIJI 11. WILSO.V AM) ANOTHER.— The parties in \\\'m Hiiit had been partners, carrying on business an barristers and solicitors. Disputes had arisen between them, arid nno (Mr Kkhiton) had left the city duritig Wilson's absence. Upon the return of tho latter, a dissolution of partnership had been mutually agrood to, and had agreed to rofer the'.r disputes to arbitration. TJie plaintiff had paid LG7O as premium upon entering tho firm, and ho desired, upon tho dissolution taking place before the term had expired, that a portion of that premium should be returned to him. Mr Barton now appeared for tho plaintiff, and Mr Maoassuy for tho defendants. Tho plaintiff prayed that tho partnership bo determined by the Court-that it to referred to tho Registrar, or to a jury to ascertain what proportion of the LO7O should bn repaid, and that there bo a reference of account*. Mr Barton argued lengthily in support of the prayer. Mr Macassoy replied. Tho Judi.'O held that tho mutual dissolution of parlnenihip prevented an action bring brought for tho return of a specific portion of tho purehise-monoy. Luavo was given to tho plaintiff to amend thu pleadings, tho df-fondanta' costs of this argument to ho paid by tho plaintiiF at tho final taxation of cost of suit. I Till: STAMP ACT. —A CASK OF AITKAL. lA;x it. Hol.mhs.—This was an appeal from a decision given by tho [{x.'sidi'nt Magistrate, A. Chetham - Strode, Esq. Ho had held that a document was not admissiblo in evidence, because it -was not Kullk-.ieiitly utamped, and hecausu no proof had been yiven of tlio proper cancollation of the stamp. The Judge confirmed tho decision of the Magistrate, and tho appeal was dismiss ;d. "WEDNESDAY, NOVEMBER 25th. MOTION TO DISSOLVE IWL'XCTION. Onuv.u. i>. JoNB.-i and Another.—This ■was a motion to dissolve an injunction granted to stay execution upon a judgment obtained for the sum of LIOO. Mr James Smith appeared with Mr Macnssoy, in support of tho motion, and Mr Smvthics to shew cause. Mr Smith handed in a copy of the injunction. Mr Smythies ohjee cd that there was no affidavit vcri'yiug tho copy. Mr Smith produced tho registered copy of tho Judge's order, and Mr Smythies made a similar objection ; urging that it -was merely a copy and not tho original. His Honour held that the original must be produced, or its non-production accounted for in order to admit of .secondary evidence being given. After argument the further hearing of tho case was adjourned until Monday noxt, on payment of casts, to allow Mr Jones to filo necessary affidavits.

RULE NISI i'O!t rKOIIJKITJON'

Okiikm. i. Catomoiu:. —Argument for rulo jti.s/. for prohibition. iUr Mucnsst y moved the rule absolute, .and Mr fcV.ythies showed canst;. The affidavits showed that an. action had been brought, in the Supremo Court by Orbell a^ainat Jones for malicious prosecution, ;uid that the then plaintiff—obtained a farthinsj damai/cs; tint the defendant brought error in the Court of Appeal, but did not "ivo * ond as required by the Statute to stay execution ; that tho plaintiff had arrested Jonc3 on a writ of en. -sa., and upon which ho had paid Mr Catomoro, Deputy Sheriff, the amount of tho judgment; that Mr Catomoro h.id refused to pay over tho money to tlu> plaintiff as required by the Statute, I.BGI, and that therefore tho action in the Magistrate.! Court was brought jvijainat him to recover the same. TliO grounds upon which tho rule 7ii.ii liadbeen "ranted, were that in tho Court of Appeal it had been decided that tho plaintiff vas not entitled to the costs of tho action, and that therefore the money in tho hands of the Sheriff was tho property of Jonea and not of Orbell. The affidavits further showed that an action had been brought against Catomoreby Jones to recover tho sum above alluded to. MrSniythies contended that the duty of the Sheriff to pay

overthemoneytothe plaintiffwasrendered necessary by the Statute 18G4. If the motion were granted, and the Sheriff succeeded in the action brought by Jones, ho would retain the money, and pay it to neither party. Orbeil, the learned counsel continued, was entitled to tho mtmey, the question an to ultimate possession was one to be fought tetween the parties themselves, and tho proceedings in tho Court of Appeal, to which the Sheriff wiu not a party, did not justify him in holding the money from the plaintiff. The. sirnplo question in matters of prohibition was, had the inferior Court or had it not jurisdiction ? and that where it appeared that thero was jurisdiction a writ of injunction was never allowed. He also urged that if tho Court ultimately awarded restitution, it would be only of the cost 3of the first action in tho Supreme Court; and that the plaintiff was entitled to tho farthing damages, and tho costs of tho writ of cat. 50,., which were part of tho judgment given in the Magistrate's Court, and that for so much at all events tho jmlemont was good; and further, that as the motion for prohibition was entire, it was too large, and must bo discharged with costs, Mr Macassey contended thstt it waa not correctly laid down by the other side that prohibition would not lie where there was jurisdiction ; that although it was admitted that tho Court below had jurisdiction at the commencement of the proceedings, that jurisdiction ceased when tho Court of Appeal had delivered its judgment. His Honour decided to reserve judgment. WANT OV PROSECUTION. Jonks v. Oukkll.—Motion to dismiss action for want of prosecution. Mr Smythies moved to that effect on behalf of tho defendant. Mr Macassey appeared for the plaintiff. It will bo recollected that at the last session of tho Supreme Court, Mr J. R. Jones" brought an action of ejectment against Mr Orbell, to oust him from a, farm in his occupation, at Puketapu. The question between them was, that Orbell had paid rent to tho plaintiff, so as to create a tenancy, and tho plaintiff deposed that ho had received no rent from defendant since he had parted with his lease. It was also stated ' byOrhcH'that ho had regularly paid his rent for two years, but could not produce i receipts. A verdict was given for the ] plaintiff. Subsequently tho defendant obtained a new trial upon tho discovery of i a receipt signed by tho plaintiff for such rent. Mr Srnythies now moved upon ] affidavit, and under Itulo 408, for a dis- 1 missal-of the action on tho ground above stated, the plaintiff not having given notice of 'rial for the next session. His Honour decided that the time for moving had not arrived, and that two months must expire before tho plaintiff would be in default. Tho motion was dismissed, the question of costs to stand over until ' the final settlement of the suit.

The Court thon adjourned till 10 o'clock on Monday morning.

RESIDENT MAGISTRATE'S COURT

WUWNKSDAY, NOVEMBER 25th

(Before A. Chetham-Strode, Esq., 11.M.)

DiiPN'KK'CfE.ss. —Margaret Shaw, Alexander Dickson, and Elizabeth Campbell were each fined 10s. William Kelly was fined -KM, with tho alternative of a week's imprisonment in default of payment.

Tijkkt v.y a Boy. — Samuel Rainford was charged witli having, on the 21«t of October last, stolon a watch and chain and Bomo clothing from tho p.s. Comerang. On (ho application of tho Commissioner of Police, tho prisoner was remanded for j a week. CIVIL CASKS. Rkiikaiuxo.;—Applications for tho rehearing of tho cases, Nelson o. Bain, and Reynolds o. Westwood, were made, and refused. Not Stami'kd.—Young v. Mooncy.— Claim Ll2 10s, the amount of a promisHory note. Mr Ward, Tor tho defendant, obtained a nonsuit, tho document upon which tho ;iction wiia brought not being properly Btamped. Found Liaijlk.— Walls w. Andrew.— Claim LlB 11b 4d. Tho plaintiff in this awe, holding a judgment again3t one O'Grady, received fr-nn the latter an order upon tho plaintiff who, owing O'Grady money, had accepted tho order. In tho meantime, O'Gradycountermanded tho order and filed his petition in insolvency. Tho Magistrate held tho acknowledgment of tho order binding, and gave judgment for tho amount claimed, with cost 8. AfiJouitv.MßNTS. —Tho following cases wore adjourned until Friday noxt : — Clark v. Pollock, Wright,, Robertson, and Co. ii. Basset. Adjourned until Monday: —M'Ouire v. Burt, and Burt v. Stevens. JoiKiMKNT isy Default :—ln tho following case judgment w.so given by default, for the amount claimed, with costs : Young v. Jeffries, claim LlO ss.

Casks Struck Out.—Tho cases, Herbert, Hayncs, and Co. v. E. Cooper, Muir v. Jackson.