SUPREME COURT.—IN BANCO.

Otago Daily Times, Issue 3916, 4 September 1874, Page 3

SUPREME COURT.—IN BANCO.

Thursday, 3rd September,

;(Before His Honour .'Mr Justice Chapman.)

BANK: "OF NEW ZEAtAXD' V. WISSENDEN'.

Mr Macassey applied for a vesting order in respect to sections .'95 and 96,'Porb Chalsners. "• -:• .■:'. ■ -.:-.■: '.. '- . / '-■'-'' -■■'■ • His Honour : You may take an order. • ■ HARDING Vi CAMPBELL,;! :: ■' . Mr Macassey moved for a rule nisi for a new trial. The grounds on which he made the application were—(l.) That the charge of the learned Judge was defective, so defec' tiye as to amount to misdirection; and (2.) that there was not that preponderating proof or evidence in favour of the plaintiff whiph •warranted the Jury in finding: the issue in; in the affirmative. Mr Maoassey then argued at length in support of the application. '; . His Honour: You ina^ take a rule. ISAACS V. GALLAGHER. Mr Macassey moved fora rule nisi to arrest judgment, on the ground that there was no proof of the presentment of the bill at the Bank of New South Wales, the specified place. This was an action against the acceptor by the drawers. His Honour : I won't refuse the rule, but I simply abstain at present from granting it. DODSON V. MACANKREW. Argument for a rule nisi in respect to the production of telegrams in relation to the purchase of . the Port Chalmers Railway alleged to-have passed between the Super- . intendent and Messrs Proudfoot and.Oliver, some members of the Executive Council, and some members of the General Government. Mr Smith, with whom was Mr Stout, appeared for the Hon. Julius Vpgel, the Telegraph Commissioner. Mr Macassey : In this case I appear to amove the rule absolute. He had seen, the Telegraph Act, lately passed, but only for a moment or two. If if were desired he would either proceed or consent to an adjournment. His Honour : I certainly should not give judgment till I have Been the Act. Mr Smith: We have a copy of the main section x>f the Act, and which has been sent by telegram by the Attorney General to my learned friend Mr Stout. J.t is as follows :— "Except-as hereinnfter provided no officer clerk operator or other person employed in

or about the working of line or telegraph shall on the trial of any issue civil or criminal or of any matter or question or on auy enquiry in any Court of Justice or before any person having by law or by consent of the parties authority to'hear receive and examine evidence be compoteut or compellable to give evidence of the contents of any message despatch or communication transmitted or conveyed or presented to be transmitted or conveyed by any such line nor to produce under any writ or subpoena such line [?] nor to produce under any \<rit of subpoena summons or order the original of any such message despatch or communication [unless?] by or on behalf of tho sender. The provision of the second section of this Act shall not apply, if the person by or to whom any such message, despatch or communication as aforesaid shall have been sent or addressed notifies to. f::o Electric Telegraph Commissioners or the General Manager of tho Electric Telegraph lines under the' saic 1. Aot ia writing that he desires any such officer clerk operator or other person aforesaid may give such evidence or make such production as aforesaid." It was an Act which entirely prohibited the disclosure of anything by telegraph unless the party immediately concerned would give his consent.

After some remarks, Mr Smith said he was (jutto prepared to show-cause against the rule, mil that he was instructed to ask for costs. One of the grounds upon which he should oppose this ruld was that no suoh telegrams were iv cx r istence—that they were purely in the imagination of the other side. The Commissioner of Telegraphs.-could not be expected to pay costs. This motion was made for the pm-pose of raising the theoretical question for the satisfaction of the other side, and if such fanciful questions were raised it wa3 only right that the persons -who raised them and sustained them should pay the costs. At all events he was instructed, on behalf of the Telegraph Department, to show cause against the rule a\d apply for costs. His Honour was understood to sny he believed he was almost stripped of jurisdiction by an tVct passed since the rule was granted. He hadnot seen the- Act. He knew such an Act had been passed, but did not know its contents. . , ■

Mr Smith said that, assuming the Act divested His Honour of jurisdiction to order the production of telegrams, yet this action must be disposed of, and must be treated, &o far as costs were concerned, by the laws at tlie'time the rule was moved. As His Honour observed when the mle was moved for, it was simply a means for bringing a theoretical question to.the test of a decision of the Court. Did His Honour refuse the discussion of the matter now ?

His.Honour said he Avould not refuse to hear the matter. The Superintendent of the Telegraph Department must have known the telegrams could .not--, be produced after the passing of the Act. Surely a public officer instructing counsel to oppose a rule for costs

Mr Smith submitted it was the duty of the other side to pay costs. His learned friend Mr Stout and himself were engaged by the Telegraph Department before the passing of this Act. .-•■;■:.-.-. ■:.■■..■■•■■

His Honour (to Mr Smith) : If you choose to show cause, I will hear j ou. Mr Smith then proceeded to show cause. This was a rule which called upon the Telegraph Commissioner to show cause why all telegrams that had passed betwteu the persons mentioned relative to the purchase of the Port Chalmers Railway should not be produced at the trial of the case. He then read the affidavits upon whic.i the rule was moved for. Dodson, he (Mr Smith) .would point out, only swore, to his information and belief, that, some telegrams passed. : He(Mr Smith) submitted this 'did/-not satisfy the law, and that positive proof of the actual existence, of ..the-documents required to be produced must be. shown. Tliere was ho positive allegation, which he contended should be, which affirmed the existence of the telegrams required to be produced. The paragraph asking for, the production, of the telegrams, "if any," showed by the words quoted, very conclusively, it was merely a fishing motion. -The 'deponents spoke in qualified language, .and did not state the grounds on which they entertained their belief. Mr Smith then said his grounds were as follows: — Ist, The existence of the telegrams had not been shown to_ the Court; 2, if produced, their ad^ rnissibilily. as evidence "was; not shown, but, on the contrary,; their inadmissibility was shown ;;3, that the Courthad no power to order the production of the telegrams supposing they existed, they being in the hands, of, a; body ..or party who was not a party" to the -"action; 4, that the rule was contrary fco the policy of the Telegraph Act, and therefore against public policy ; and! lastly, the terms of the rule were too general. If parties chose to raise questions unnectssarily, arid merely to have them decided by the Court, they should pay the costs. Supposing the telegrams were in existence, he submitted from the affidavits that they would not be admissible even if produced in Court. No telei graph correspondence which preceded the sale of the.railway could/he, contended, be admitted, for the "simple reason that it was shown: by the affidavit on;which the rule was obtaint-cVthat it was a negotiation which preceded, - and- resulted in the purchase of the railway subject to the terms of theplaintiff'ji/tenure qi the refreshment rooms. That this correspondence did not form the contract between the parties/ The terms of the order werei altogether .top general. JEe submitted that the rule should be discharged witlrcosis, as an unnecessary.proceeding; ; • 'Mb Stout'followed.' In the course of "his arguments he pointed out that the rule was one asking for the inspection of the tele^ grams regarding the sale of the railway, hi the hope •that''something might"'be found fc i.^^P?'?' /tenure—-the scope should have been,limited/to inspecting matters regarding the* tenure, -and- he thought this bb■jection/was;fatalr:; ; :;;;'/;; '/"/';/': ...;;. // )

' Z: Mr Macassey 'i said ifc appeared to, him ithat the .Court'was called'upon for a very idle 'ceremony: Theyr-were; given 4o understand thatthe'Act.' passed "cnntained;-provision tjiafchad the effect of defeating the application. ' The (Question had been practically deculed;by the'LegislatuVev && yet the. Telergr'>pH.;Commissioner engaged counsel: : to :argrie/nofc against the'rulebt ing made absolute, but' to obtain payment of costs. He assiimed that, tliearguaienfc Which had been addressed to the Court proceeded upon the assumption tliat if • the rule nisj had been made absolute/.the"departnient was entitled to costs". " He should now address himself to the questions whicfi * Had been raised with; he assumed, t" e'HHew '■' 6i : innueiiciDg his Honf>u.r in, regard to (,osts.. Mr Macassey then re}Jlieil to the various objections raised, by Messrs Smith and Stout. : :

-His -Honour : If the Telegraph Act is asreported to be, there is merely the question of costs.

? .Mr Macassey,remarked that on the question of costs he had nothing to say. " If the department cam,e,to the Gourt on the;question of'costs after-that ,Act; was he could only., say, it was a very discreditable proceeding. His Honor : I - cannot .decide till V have seen the Act, and ascertain wbat powers are left to the Court, and what taken away. The Court then rose.