Friday, 22nd March.

Otago Witness, Issue 1374, 30 March 1878, Page 9

Friday, 22nd March.

(Before their Honors Mr Justice Johnston and Justice Williams.) CHALMERS AND ANOTHER V. JOSEPH CLARK*. Argument of rule to rescind Judge's order. Messrs Macaesey and George Cook appeared for plaintiffs (to show cause): and Messrs James Smith and B. 0. Haggitt for defendant, Joseph Clarke ; Attorney-General (Mr R. Stout) and Mr Denniston for defendant, W. J. Clarke : and Mr F. Chapman for . J. Kitching, watched the proceedings. The preliminary question on this rule was similar to the one on the rule argued on Thursday — Chalmers and another v. . Clarke and others— and thtir Honors decided to hear counsel for Joseph Clarke before giving judgment. Mr Macassey waived the right to begin. Mr James Smith addressed the Court on the preliminary questions, (1) as to whether the defendant could be taken to have raised any objections, which might have been raised on the first summons; and, (2) whether the co - defendants of Joßoph Clarke ought to have been included in this rule. He submitted that the defendant, Joseph Clarke, having on his summons attacked the bill, not in point of detail, but on the grounds of multifariousness and misjoinder, he had, on that occasion abstained from criticising it in point of fact, because it would have been premature to have done so. The defendant, Joseph Clarke, had a right to await the carrying out of the order obtained by Mr W. J. Clarke, in order to see what form the declaration would then assume. But instead of the plaintiff complying with that order, ho obtained one for leave to amend generally, and amended the declaration accordingly. No doubt the defendants, might have objected to this order, but their not having done so did not prejudice them, and the act of the plaintiff in obtaining the order and acting upon it, did not deprive it of Us ordinary consequence, viz., ihat anything which had gone before would be nullified by that act. Under thegeneral order, many of the clauses in the original declaration had M*a altered in material particulars, and by olMiie* 40 and 42 Atw matter bad been introduced. la respect

of the land called the Island Block, the amended bill prayed for no specific relief, and it was therefore irrelevant matter, and might be regarded as multifarious, and as introducing subject matter which had no necessary connec tion with the declarator as it originally stood. The defendant, Joseph Clarke, had a perfect right to be heard in respect of this new matter, and the point of waiver did not apply. To all intents and purposes, the amended bill^ ought to be regarded as a new declaration, and on that point he submitted the decisions of the English Courts afforded yery little guide, because they turned upon a different system of pleading and a different practice, regulated by special orders of the Court of Chancery, to which our proceed ings bear very little analogy. Most of the cases quoted also had b9en answered by the defendants, and were quite distinct from the present case. Had the plaintiff simply obeyed the order obtained by the t def endant— to amend the declaration under his Honor's firs*- decision —possibly it might have been contended then, if he had^ sought afterwards to amend the declaration in specific points regarding particular matters, that the defendant would be precluded from taking objections which might have been taken originally, but that objection would not have applied to Joseph Clarke, who was not pleading to any other objection than he had taken on the grounds of multifariousnes«i and misjoinder, and who had the right to see what form the declaration would assume before he attacked it in point of form. On the same ground he argued that there was no necessity whatever to call upon parties who could do nothing, and consequently that there was no need for all tho parties to be included in the rule. It would be absurd to call before the Judge parties who could not grant what was asked for. No doubt the Judge could refuse to deal with a matter in the absence of parties, but this point was not taken before the Judge on summons. The parties needed to be present only in first decree, and besides this the amendment would be beneficial to aIL

Mr Haggitt followed on the same side, submitting that rule 508 showed power to vary Judges' orders, and that the defendants had not come to a Court of Appeal to ask that the discretion of the Judge should be reviewed, but from the Judge in Chambers to Banco. Mr Haggitt also that the Judge's decision had been given upon a wrong principle, and that, at any rate, the defendant Joseph Clarke could not be held to have waived any right of objecting to the declaration. < Messrs Macassey and Cook] replied at considerable length. < Justice Johnston intimated that they would take till Monday morning to decide the preliminary points. 1 The Court adjourned at 4 p.m.