SUPREME COURT.

Otago Daily Times, Issue 13263, 20 April 1905, Page 2

SUPREME COURT.

IN CHAMBERS. , Tuesday, ArniL 18. (Before his Honor Mr' Justice "Williams.) 11, Vrobate was granted in the estates of d, Joseph Ileherr (Mr l'oppelwell), Mary Ann :t, Bates (Mr D. Stewart), James Taylor (.Mr id J arnes), Isabella Matthews (Mr Woodhouse), ■'s John Somerville (Mr Duncan), in Letters of administration were granted in il re Emma Mortimer (Mr Creagh). »r M'Kinlay v. M'Kinlay and another.—Sum- ?. nions for trial by judge alone in camera (Mr 10 Bailey).—Accordingly. CO He Samuel Henry Andrews (deceased); :1, Dunedin Corporation v. Dobin.—Summons for ,), inclusion of Cavershnm' Hlfb Volunteers in ir designation " Dunedin Volunteers" herein k. (Mr MacGregor).—Accordingly; costs to each in of parties served, these to be at liberty to a- deduct their costs. Robert Hay and another v. CI. .15. IJose ig and others.—Motion for directions as to ser- ), vice (Mr "Williams).—Summons to be served JD oil Orace Edith Hose on her own behalf, and ; also on her as guardian of the infant children. ;s He Kobert "Yule (deceased).—Motion for reft numeration of executors, with registrar's o report (Mr 0. H. Thomson).—Report con- ]• firmed; remuneration accrdingly. ), Re Isabella M'Kciuie.—Motion for Temunen ration to executors (Mr Wilkinson).—Referred d to registrar. Ie Australasian Fine Art Studio Company v. g Victoria Insurance Company.—.Summons for 's security for costs (Mr W. C. MacGregor).— j. Security for £13(1; costs, fl Is. a 'Ijovc v. Otago Dock Trust—Summons for id examination of witnesses (Mr Stephens).— is Accordingly, by consent, ig Wright v. Widdowson and Clarke, and Turnd bull and Nicolron.—Application for mandaI. U! directing the magistrate at Dunedin to d reinstate Turnbull and A'icolson as defenn dants, and to hear and determine the case iv on the merits.—Mr Finch appeared for I. Wright; Mr J. MacGregor for Turnbull and i- Nicolson.—ln this previously-heard case his d Honor gave judgment as follows" Clarke u sued "Wright iif the Magistrate's Court for £3 n for goods sold and delivered. Before (he d bearing Wright applied to have Turnbull l- and Nicolson added as defendants, on tho r- ground that lie (Wright) was only the agent s in tho matter for Turnbull and Nicolson. iv An order was made with the consent of the it plaintiff Clarke adding thera acordingly, but i- upon the terms that Clarke should not bo o liable in respect of any costs of or incidental =, to their joinder. Turnbull and Nicolson were s duly served, and- appeared when the case t- came on lor hearing. At the hearing Clarke ,s gave evidence of the sale of tho goods to e Wright. Clarke was cross-examined 'by y Wright's counsel lor the purpose of showing e that Clarke was aware that Wright was acting s merely as an agent 111 Ihe purchase of the s goods; but Clarke denied that he bad any s knowledge or intimation that Wright was x acting for anybody else. Counsel for Wright e then addressed the court, and did not ques- >[ tion the liability of Wright, but proceeded r to argue that 1110 defendants Turnbull and h Nicolson were also liablo to Clarke, and to e state that he proposed to adduce evidence to show that Wright had bought (he goods from Clarke at the request, and b> tho direcs Tion, and for and 011 behalf of Turnbull and Nicolson, and that Wright was only their agent. At the conclusion of counsel's address, 0 nnd before lie called evidence, counsel for 0 Turnbull and Nicolson intervened, and coni- tended that (he Magistrate's Court, under the e Magistrate's Court Act, had no jurisdiction to give judgment against lliein, Tho magistrate [, upheld the contention, and held, further, that a the court could not give judgment in favour ;i of Turnbull and Nicolson for their costs n cither against Clarke or Wright. The magise irate then struck out their names as defen- ,( dants. After the magistrate had said he had Q 110 jurisdiction with regard to the defendants 1 Turnbull and Nicolson, Clarke's counsel r asked for judgment against Wright alone. Wright's counsel does not appear lo have _ further contested the matter, and judgment e was entered accordingly for io and costs. "Wright now asks that the magistrate may be oidered to rehear the action (0 reinslate tile ' g names of Turnbull and Nicolson as defen- . dants, to hear the evidence proposed to ba ' tendered as above-mentioned, and to deterj mine the merits accordingly. The initial misB take in'the proceedings was the joinder of Turnbull and Nicolson at the instance of j Wright. If Wright, when lie bought the t goods, had notified Clarke that he was acting } as agent only, Wright would, not be liable , for the price of them, and there would be 110 1 need whatever to join Turnbull and Nicolson J to enable Wright to defend tho action. If . Wright did not purport to contract with J Clarke as an agent for some one else, then ! Wright would be liable directly to Clarke. ! Turnbull and Nicolson would be in the posij tion of undisclosed principals. AVhen they' ' were disclosed Clarke' would have had the ! option either of suing Wright or Turnbull and Nicolson. He could not recover against both of them. Whether, having sued "Wright, ' and being thereafter notified that Turnbull 1 and Nicolson were the real principals, he could join them and proceed against them as I well as Wright is inoro than doubtful. The • continuation of the action against ■ after the notification he was not tho real ; principal seems to me an election by Clarke to treat Wright as tho principal. Clarke i could not have got judgment against both Wright and Turnbull and Nicolson, and in 1 any case it would have been for Clarke to ■ say against which of the defendants he sought judgment. Certainly it was not lor Wright to say to Clarke, 'you must recover ftom Turnbull and Nicolson, and not from me.' At anyrate, Clarke finally elected to recover against Wright, because lie did not 1 object when tho magistrate struck out Turnhull and Nicolson as 'defendants, and he then forthwith asked for, and obtained, judgment against Wright. That (he magistrate was altogether right 011 the question of jurisdiction is questionable, but it is not "Wright • who has suffered if he was wrong. If Wright had shown that .he did not render himself personal}' liablo to Clarke but professed to act as agent only, and that Turnbull and Nicolson were tho principals, then, as all parlies were before the court, if the magistrate look that view, it would have boen competent for him to havo given judgment for Clarke against Turnbull and Nicolson. But it was not Wright's affair to give Clarke a remedy against somebody else. His business was to acquit himself, and that he could have done whether or 110 Turnbull and Nicolson lyere parlies. After they were struck out there was nothing to prevent Wright from adducing evidonce to show that lie did not contract personally; but he did not do so. If the magistrate could have given judgment for Clarke against Wright, and then havo , given judgment for Wright as against Turnbull and Nicolson as being bound to indemnify Wright, then Wright would havo had reason to complain. But the magistrate had no jurisdiction to do this. The third parly procedure as set out in rule 95 of tho Supreme Court Code, and tho following rules, is not ill force in the Magistrate's Court, and, if it was, tho course taken in the present case by • Wright is not in accordance with it, and such a- judgment could not have been given. If anyone ha 3 any reason to' complain it is Turnbull and Nicolson, who were brought ' before the magistrate against their will, and | who got 110 costs; Wright ha 3 110 reason. ' Motion dismissed, with costs as per scale," 1