SUPREME COURT.—IN BANCO.

Otago Witness, Issue 893, 9 January 1869, Page 3

SUPREME COURT.— IN BANCO.

Tuesday, January sth. (Before His Honour Mr Justice Ward.) Bank of Otago v. Wilson. —Mr Smythies applied for a rule for a nonsuit, on the ground that the plaintiffs ought to have sued on the mortgage deed, and net on the bill of exchange. Rule iiisi granted. Jones v Okbell. — Mr Smythies moved for a rule nisi, to set aside an order for attachment. An affidavit was presented, but not accepted until it had been filed. His Honour remarked that it was a general rule of Court that affidavits must be filed before being presented. Mr Smythies stated several grounds in support of his application, and a rule was granted. It was also agreed that the question of extension of time for leave to appeal should, for the present, stand over.

Bank of Australasia v. Cargill and Others. — Mr Macassey moved for a rule nisi for a new trial, on the ground that the jury were improperly discharged. Rule granted. Mr Macassey also explained that he made this application with the view of saving costs, and wished the plaintiffs to show cause why there should not be a new trial, and that the costs in the first case should be costs in the cause.

Stamper v Wilson. — Mr Macassey, on behalf of the defendant, moved for leave to appeal. Leave was given, His Honour also intimating thatMr Macassey could arrange with counsel on the other side as to what further proceedings he intended to take. Mr Macassey replied that although counsel for the plaintiff did not appear, notice of the intention to make this application had been given.

Bank of Australasia v. Reid and Oihers. — This was a motion for leave to appeal.

Mr Macassey appeared for the defendants in support of the application, and Mr Smith for the plaintiffs.

Mr Macassey, having explained the circumstances under which the action was brought in the first instance, remarked that the case was ©ne of considera' le importance, and that it was contemplated to ask for leave to appeal to the Judicial Committee of the Privy Council. The only question was one of security, and if ample and satisfactory security were given, there could be no reason, he apprehended, why leave should not be granted. He also mentioned that there were' reasons why the Court should grant a stay of execution, and referred to the decisions of Mr Justice Chapman and Mr Justice Richmond in support of his application. He then read the order in Council relative to appeals to the Privy Council, and proceeded to remark that if the order applied to the case in point, His Honour had power to grant the defendants leave to appeal and to stay execution ; if not, the defendants could apply to the Privy Council for special leave to appeal, upon the ground that there were no regulations in f orcea fleeting the mode of procedure in such cases. Mr Smith submitted that however desirable it might be to cany the case before the Privy Council, if the plaintiffs o jected, this Court had no power to compel them to submit to what was asked for. The defendants had a common law right to petition the Privy Council for leave to appeal on showing that the colonial jurisdiction had been exhausted j but so far

as the present application was concerned, he apprehended that there was no legal ground — that, in fact, the only regulation on the subject was one which had no application in this colony ; he alluded to that quoted by his learned friend, and promulgated by the Privy Council in May, 1860. He submitted that the Court had not the power which was sought to be thrust upon, ifc, nor to suspend the execution of the judgment. There was, in fact, no final judgment in existence, so far as His Honour had been informed by the affidavit before the Court, but if it were so, the regulation quoted no longer applied. His Honour referred to the decisions mentioned by Mr Macasaey. Mr Smith continued that, with all deference to the decisions of those learned judges, Messrs Chapman and Richmond, he must say that he considered they assumed a power which they did not possess. _ The order quoted had, in his opinion, no application after the abolition of the Aces constituting the old Supreme Court. He conld not see by what process the new Court assumed powers which had been given to an altogether different body. The objections he had to take were, that it was not shown that there was any I final judgment of the Court entered. It was merely put forth that, in consequence of the decision of the Court of Appeal, the plaintiffs were at liberty to enter up judgment in that Court, and to follow it with execution. There could be no final judgment until it had been properly entered up as such. If His Honour considered, however, that the Court could grant the request made by | his learned friend, Mr Macassey, he would submit that a stay of execution was not absolutely necessary, because the order, if applicable, allowed j the Court to stay execution or to order j that execution should issue. If His Honour considered himself to be bound by the precedents cited, he would ask that there should be given to the plaintiffs the full benefit of the terms imposed ; they should not be bound to stay execution but placed under some reasonable bond to make restitution if the appeal were successful. But he still submitted witli confidence that the Court had no jurisdiction in the matter. The order merely applied to a Court which had been abolished, and had no application to the new Court. Even if the new Court was to be regarded in the same light as the old one, continued by the Act 1860, the powers in question j should have been expressly reserved or renewed by the Privy Council. Then there was no final judgment of that Court | shewn to be in existence, and, assuming that there was a final judgment entered up, it was merely a judgment for the purpose of issuing execution and following the ordinary consequences of entering up such judgment, not for the purpose of appealing against a final decision. For the , reasons h© had quoted, he submitted that the present application ought to be refused with costs. Mr Macassey thought the decision of the learned Judges, Messrs Chapman and Richmond, ought, on a question like the present, to be accepted as conclusive by the Court. Until their decisions had been reversed, they should, in his opinion, be abided by. His Honour said he wa3 quite willing to accept the assurance that leave to appeal was given in the cases cited by Mr Macassey. Mr Macassey repeated that leave to | appeal was given in a manner similar to that in which it was now sought to be obtained, after a discussion had taken place. Having alluded to the passing of the Act in 1860, and the publication of the Order in Council in the Gazette of the Colony, he remarked that he apprehended power was given to appeal to the Privy Council, and that it would seem to be a monstrous doctrine that upon every alteration made, the power conferred by the superior appellant body should be abrogated by the Colonial Legislature. After a discussion regarding the api pointment of the Judges, His Honor observed that the subject was surrounded with doubt. Mr Macassey mentioned another case in support of his application in which the New Zealand Banking Corporation (Limited) were the plaintiffs. He believed the particulars of the case were lo the following effect : — An action was brought for libel. A rule nisi was obi tamed for a new trial on the ground of misdirection by the Judge and the rejection of evidence. The rule was removed to the Court of Appeal— judgment was delivered — an application was made for leave to appeal — the Court of Appeal referred the question to Mr Justice Chapman and Mr Justice Richmond, who in themselves constituted a Court of Appeal, and subsequently leave to appeal, as now | sought, was granted. Hia Honour asked Mr Macassey to show him the case. Mr Macassey remarked that he was unable to do so at the present time, but

that he would be able to produce it if the present case were adjourned. His Honour said he would like to see the case cited before these proceedings ™ere closed. There appeared to be three distinct judgments granting leave to appeal, and. he would therefore order that the matter should stand over until Friday morning. Proodfoot v. The Dunedin Watek Works Company (Limited). — To move rule absolute for execution to issue. The hearing of this matter was postponed by consent until next Banco day. ReGINA V. STRODE AND FItASER. — Argument of rule 7iisi. Mr Smythies appeared in support, and Mr Smith, with Mr Macaßsey, to shew cause against the rule on behalf of Mr Strode. The application now made was the result of a case tried at tne Resident Magistrate's Court, when Mr Henry Smythies was proceeded against frr "having committed a breach of the Law Pracitioners Act Amendment Act, 1860. Mr Smith opened the case. He said it was urged that the conviction should be quashed on the following grounds: — 1. The third section of the Law Practitioners Act Amendment Act, 1866, is unjust and absurd. 2 The Act does net apply to any person admitted to practise in the Court previously to the coming into operation of the Act; and, therefore, the conviction is bad for not alleging that the defendant was admitted since the Act came into operation. 3. T he Act applies only to persons convicted before the Act came into force ; and, therefore, the conviction is bad for not alleging that the defendant was so cony cted. 4 The pena ty cannot be recovered by any one other than the Attorney- General. 5. The conviction is bad for not negativing the pardon of the defendant. 6. The conviction is bad for giving costs to the informer. 7. The conviction is bad for awarding imprisonment. 8. The same Magistrates did not hear and determine the case. He could only say with regard to the last ground, which set forth that the same Magistrates did not hear and determine the case, that the rule nisi was obtained on the affidavit of Edward Harris, and that the declaration made by Mr Strode wa3 a complete answer. It was most explicit and conclusive on the point, and read as follows : I, Alfred Rowland Chetham. Strode, of Dunedin, in the Province of Otago, Esquire, make oath and say — 1 . That I am a Justice of the Peacf for the Co'ony of New Zealand, and one of iliu X< iaioent Magistrates for the District tf jJimeam in the said Province. 2. That I, as such "Resident Magistrate as aforesaid, was present in theßesitUiit Mngistrate's Court, at Dunedin, aforesaid, during th" whole sitting of the Magistrate* on the first day of Uecember lust, when the information of John Jones, of Fernhill, Dunedin, merchant. againßt Henry mytlr.es. ot Dunedin, gentleman, for a breach vi. The Law Practitioners Act Amendment Act, 1866, was heard and determined. 3. That the information was r«->ad ever by the Clerk to the Bench at about twenty minutes past eleven o'c ock in the morning of the said first clay of December, when I, this deponent, alono sat on the Bench. That immediately after a discussion ensued, in which the said Henry Mnythies took part, r* lative to the advisability of ail jcurning the hearing of the case until a Jater period of the day, in consequence of the Quarterly licensing Meeting being fixed for twelve o'clock at noon on that day, and of the improbability of the information against the said Henry Smythieß t>eing disposed of by that hour, and thereupon an adjournment until two o'c. ock in the afternoon was agreed to by the said Henry Smythies and the counsel for the informant, and nothing further then transpired relative to the case ;—; — 4. That about twelve o'clock on the said day, the business of the relative to the granting of publicans' licenses commenced m the said Court before myself and Thomas Eraser, of Dunedin aforesaid, a Justice of the Peace for the said colony, and the Court continued sitting until past two o'clock, when immediately after, and. without any adjournment, the case against; the said Henry -.mythies "was taken < y the Court, then consisting of myself and the said Thomas Fras r ; that, on the case being call-d on, I asked Mr Smythus whether he -wished the information to be read again, which he answered in the negative. That [ then /asked Mr Smyfchics to plead, and he plo'aded "Not guilty." 5. That thereupon the case for tho prose« cution was opened by counsel ; -witnesses were called in support of the information, and the said Henry Smythies cross-examined them, and subsequently addressed the Court at considerable length on the invalidity of the charge, and during the whole of this time the said Thomas Fraser Bat ou the B9nch until the decision, of himself and myself was pronounced by mo. 6. That during the hearing of the said case, William Dick Murison, a Justice of the Peace for the said colony, camo on the fcSencb, and remained for a fchort time and then left; and James Fulton, Bsq on* of the Resident Magistrates for the di-itnet of Dua(For continuation — set page 16. )