SUPREME COURT.—IN BANCO.

Otago Daily Times, Issue 5803, 24 September 1880, Page 3

SUPREME COURT.—IN BANCO.

Thursday, 23bd September, (Before his Honor Mr Justice Williams.) BE JOHN HKNRY JBWITT. Motion for a rule nisi calling upon the convicting Justice s to show caune why the conviction of John Henry Jewitt for bavir.g salmontrout in hie possession should not be quashed. Mr F. Chapman moved for the rule upon the following gr«.uncU:—(l} That the rogul* tion made by tbe Governor in September, 1877, providing a penalty against any person having salmon or salmon-lrout ia his possession, is ultra vites; (2) that it does not appear by t'ae convection that the regulation was published in the Gazette, as requited by the Act; (3) that it does not appear from the conv'c~ion that the regulation has not been rescinded ; (4) that the exemptions stated in tiie regulation are not negatived by the conviction; and (5) that it does not state in the conviction that tbe salmontrout referred to therein and ia the regulation is a fish of the clasr or kind protected by the Act. As to the second and third grounds the learned counsel had taken, he wished to dirtct attention to the fact that there were no special penalties for having a aalmon exposed in one's shop; the offence was f< r having the fieh in defendant's pt'teeesion. The section of the Act, after giving the Governor power to rescind and alter the regulation?, went on to say : "All such regulations shall be published in the Gazette, and when so published shall be binding and conclusive," It did not appear on the face of the conviction that the regulation had ever been published—it was merely stated there that the regulation had been issued on September 6'.h, 1877, by his Exc?llency the Governor, in pursuance and in exercise of auth> rity vested in him under section 2 of " The Salmon ar.d Trout Act, 1877." His Honor granted the rule nisi. COLE (APPELLANT) V. DICKINSON (respondent). Case on appeal. Mr Finn, who appeared for the respondent, stated that it had been agreed between the parties that the case should be struck out, without costs. His Honor ordered the case to be struck out accordingly. 80OTHAN V. UNTOTT AND OTHERS. Motion to dismiss action fur want of pronecution. Mr Sinclair appeared to move for the dismissal of tbe action. Mr George Cook, who appeared for the plaintiff, said there would be an application in this case made in Chambers to amend the declaration. Mr Sinclair asked that the usual order should be made His Honor accordingly ordered that the action be dismissed unless the next step be taken by the plaintiff within 10 days, and that in any event the plaintiff pay the coats of the present application. MILLER V. TAPPER. Motion for leave to appeal against his Honor's judgment on the demurrer. Mr MacDermott appeared to support, and Mr James Smith to oppose the motion. Mr MacDermott stated that the ground of the appeal was on the question whether the cape came within the limit of the Statute of Frauds, on wLich point he understood his Honor had expressed an opinion that it would be very desirable to obtain the ruling of the Court of Appeal. His Honor: So far on the question of the Statute of Frauds is concerned, lthinkitisavery I proper subject for appeal, a* to whether the agreement was or was not within the statute of frauds. The only point that occurred to me was that evidently from the pleadings, whichever way that question was decided, it would not at all determine the result of the action. It was merely an appeal upon a side issue, and to grant it would be to hang up the real questions at issue in , the action. If the appeal is refused, still the question whether the agreement is within the Statute of Frauds ia a material question in the action. It will erise hereafter when the notion goes to trial, because the plaintiff will be bound to prove either that the agreement wai within tbe Statute of Frauds, or, if it was not, that tbere has been part performance, and co tbe defendant will have the opportunity of raising the question again if the appeal is not allowed. Mr MacDermott apprehended defendant had a clear statutory right under the Act to appeal against bis Honor's ruliDg on demurrer. Tee decision of this question might save expense to the partiee. His Honor pointed out that it was part of the defendant's case that there had been part performance. He did not wish to debar the defendant from prosecuting his appeal if it turned out to be necessary. It would, he thought, be better to let it stand over till the facts disclosed at tbe trial proved whether the appeal was necessary. Mr MacDermott accepted his Honor's suggestion, and tbe present motion was ordered to stand over until after the trial. tf'LEOD (APPELLANT) V. M'ARTHUR (RESPONDENT.) Case on appeal from the Resident Magistrate's Court, Clyde. On the application of Mr James Smith, this case was ordered to stand over. KBAST AND ANOTHER V. BOSS. Motion' for injunction Mrß. Cook intimated that the partiee had agreed to an adjournment, and the case was ordered to stand over till Tuesday next.