A NEW ZEALAND APPEAL CASE.

Otago Witness, Issue 1851, 17 August 1893, Page 3

A NEW ZEALAND APPEAL CASE.

if, on the completion of the valuations, it? was fouud that the balance of the purchase money was not correctly represented by the promissory notes, new notes should be given. In November 1886 Ashbury was again in New Zealand. Oa November 4- he addressed a letter ty the Bank of Australasia requesting them to treat his agent, J. J. Zimmer, aa empowered to draw, accept, and endorse ia bis name' bills of exchange and promissory notes. On November 26 he executed a deed appointing Zimmer hfe attorney for (among other things) managing his estates iv New Zealand, and adjusting all accounts depending between him and any person whomsoever. Ashbury then left New Zealand and had never been there again. About tbat time Zimmer settled the valuations which were still pending between Ashbury and J. v C. Ellis under the agreement of March 1885. He paid a portion of the amount found due, and the rest he secured by nine promissory notes purporting to nrake Ashbury liable to pay to J. C. Ellis, at the Bank of Australasia, Invercargill, varioas sunn' at various dates, They were paid into the bank by John Chute Ellis, and Thomas Chute Ellis claimed to be endorsee of ' them for value. They were the notes now sued . on in two actions. It seemed that before any action was brought Ashbury revoked Zimmer's agency, and remained without any »gent in the colony. In the eirlier of the actions, founded on three of the notes, an order waa made on February 18, 1891, allowing the plaintiff, Thomas Chute Ellis, t> j-rcceed under iule 53 without service. In June tha defendant Ashbuiy moved to rescind the order, or, iv the alternative, for leave to file a defence, and for postponement of the trial pending an application by him to take his evidence by commission in England. On June 23, 1891, Mr Justice Williams refused the first part of the defendant's motion and granted the second. Precisely similar proceedings took place in the second action. The defendant then moved the . Court of Appeal to discharge tho original orders' giving the plaintiff leave to proceed without service, and to discharge the orders of June 23, so far as they maintained the original orders. It was agreed that the arguments and judgment should apply to both actions. On October 19, 1891, the court dismissed the appeals with costs. From that decision the defendants obtained special leave to appeal to her Majesty in Council. So far as the decision turned on the precise nature of the case, it was not a very favourable case for denying the right of the New Zealand authorities to try the questions at issue between those parties. ' Zimmer, being certainly Ashbury's agent in New Zealand for some purposes, made a contract? purporting to bind his principal to the payment of money ia New Zealand. That contract was itself the sequel of another contract by Ashbury for the purchase of land in New Zealand. Ashbury defended himself by contending that Zimmer held no agency empowering him to give the notes, and by alleging that he was in a position to rescind liis earlier contract with J. C. Ellis ; that he was suing in England for that purpose ; that he would have conntor claims to enforce against J. C. Ellis larger than the amount of the notes sued on, and that the notes were endorsed to T. C. Ellis under circumstances disentitling him to stand in any better position than J. C. Ellis. Those defences might or might not ba made good. They were the matters to be tried in the action. Whether they could be better tried in England or in New Zealand their lordships need not discuss. It was obvious that they concerned rights that had accrued and acts that had taken place in New Zealand. If the. New Zealand Legislature had enacted that in a concrete case, such as the present, the Now Zealand courts should have power to give the plaintiff a decree notwithstanding that the defendant held himself aloof, their lordships would hardly have heard tho suggestion that such a law was not for "the peace, order, and good government of New Zealand." Of course they had framed their law in more abstract and flexible terns. But, taking these terms, their lordships were clear that it was for "the peace, order, and good government of New Zealand " that the courts of New Zealand should, in any case of contracts made or to be performed in New Zealand, have the power ofjudging whether they would or would not proceed in the absence of the defendant. The power was a highly reasonable one. So far as regarded service of process on persons not within their local jurisdiction, or substituted service or notice in lieu thereof in proper cases,, the English courts had it conferred on them by the Imperial Parliament. Tho New Zealand Legislature, it was true, had only a limited authority ; but in passing the rules under discussion it had been careful to keep within its limits. But it was said that a judgment so obtained could not be enforced beyond the limits of New Zealand, and several cases of suits founded on foreign judgments were cited. Their lordships only referred to that argument to say that it was not relevant to the present issue. When a judgment of any tribunal came to be enforced in another country its effects would be judged of by the courts o£ that country with regard to all the circumstances of the case. For tryiog the validity of the New Zealand laws it was sufficient to Bay that the peace, order, and good government of New Zealand were promoted by the enforcement of the decrees of their own .courts in New Zealand. The only other contention related to the word "absent" in Rule 53. The appellant sought to confiue it to persons who at some previous time had been domiciled or resident in New Zealand. It was not ea&y to appreciate the reasons why such an artifioial sense should be put upon the word; and during the ..argument their lordsbips expressed agreement with the Judges of the Courb of Appeal, who held that the word was used in its ordinary sense, and described persons who were, not in New Zealand.— The appeal .was dismissed with costs. ■ .