SUPREME COURT.

Otago Witness, Volume 25, Issue 2321, 25 August 1898, Page 22

SUPREME COURT.

IN BANCO. Monday, August 15,

His Honor Mr Justice Pennefather.) PRATT V. MARIE.

Motion for permanent injunction. Mr Chapman appeared to move on behalf of Ihe plaintiff, Jam?s Pratt, and Mr W C. MacGregor on behalf of the defendant, Collins Toussaint Marie. Mr Chapman said that this was a motion to make- perpetual an interim injunction granted by Mr Justice Williams on March 30 last m proceedings under the Code. The matter came before his Honor on notice on that date, and no statement of defence had then been filed. His Honor pointed out that under the rules, in addition to a statement of defence being filed, a warrant to defend must also be filed hy defendant's solicitor. That being so, he could not aeo how a statement of defence could be filed unless there was also filed a warrant to defend by defendant. He did not find any such authority in the papers, and whether no could look at the statement of defence would depend upon such a warrant having boon filed. ' The Registrar Baid that the statement of 'defence had been filed as a matter of course. Ho did not think there was any special Jtathoritj. flh Honor asked what course counsel 101 plaintiff intended to take. Mr Chapman said lie was only going to move on his own affidavit to make the order perpetual. He had already mad© out his case before Mr Justice Williams, and ho had scan no answer to it yet. Something hftd beoo handed to him which purported to be a statement of defence, and, which went into all sorts

of irrelevant matters; but there was not one word in tho shape of sworn testimony to answer the sworn evidence he (learned counsel) had filed.

Hia Honor : The oase has already been tried by Mr Justice Williams, and as no fresh evidence of any kind has been brought forward I see no reason why the injunction should not be made perpetual. Mr MacGregor: Will your Honor bear me? j.213 Honor: Have you filed a warrant to defend ?

Mr MacGregor : It may have been filed and it may have disappeared. His Honor : I must assume the files of the court are correct unless I am shown otherwise. Mr MacGregor: Assuming it has not been filled, it is only a slip on the part of the defendant's solicitor, and can speedily be rectified. It should not put me out of coiut. iiis Honor: If you think it worth while lo instantly file a written statement by tho solicitor (Mr Park) that you are authorised to act, and a written warrant by defendant as early as may be, on that understanding 1 do not see that I can decline to hear you. Mr MacGregor xmdertook to see that what his Honor required would be done at once. Hl3 Honor said that Mr Chapman would be quite within his rights in objecting to tho course about to bo taken. Mr Chapman said ho did not object to Mr MacGregor being heard, but pointed out that there would bo no froah evidence.

Mr MacGregor contended that there was no necessity for the injunction being mado perpotual. Tho order mado had been continued and obeyed, »nd no fresh diaturb»nces had taken plu.ee. The injunction was not now iqauired, and tlio court would not grant »v iu-

junction unless it saw that such order was req\iired. Plaintiff and defendant were virtually partners in a coalpit, plaintiff, who was also the local constable, having the working and management of the concern, a -d the order was asked for because defendant had broken one of the conditions of that agreement; and he submitted that that was uot good ground for gi anting an injunction. When the interim injunction was granted it was assumed tha* the rights of the parties had been settled, and it had been faithfully observed by Marie. He was instructed that the parties were on good terms.

His Honor: Then there can be no objection to the injunction being made permaaent.

Mr MacGregor submitted that this was preciselj one of the trivial squabbles between the parties that the court would not interfere with. The parties had slei^t on their rights for five months after the interim judgment had been granted by Mr Justice Williams, and, without the defendant's advisor either in Dunedin or Cromwell being consulted, personal notice of an application for a permanent injunction had been served on Marie, and the notice brought on straightway.

Wr Chapman said the notice of the motion was served on the Ist August for the 10th August, and Mr MacGregor had said that Mario had an adviser in Cromwell.

Mr MacGregoi- submitted that unless there was some evidence of some continuing injury being done, or the prospect of future injury being done, the court would not interfere, but the evidence was all the other way. Apparently Pratt had not worked the mine for five months, and it was perfectly competent for Pratt to say to Marie: "Inasmuch as you, in January, 1898, interfered with my working of this mine, which, admittedly, belongs to you, I do not intend to work it any longer; but I do not intend that you phall work it either." Counsel maintained that the covenant could be made »o oppressive to tho defendant that the court would uot interfere.

His Honor : I shall not call on you, Mr Chapman. In this case an agreement is entered into between two persons who were the mortgagee and owner of the equity of redemption of a leasehold. That agreement was v .o the effect that in consideration of the plaintiff taking a transfer of the mortgage over the coalpit of the defendant the defendant " v/ill porrnit" the plaintiff " during tho currency of the leas© to work the coalpit and supply coal therefrom to customers free from any interference " from the defendant, and the plaint. ft " agrees in consideration thereof lo share the net profit arising from the said coalpit workings and the sale of the said coal equally " with the defendant. Now, it is an interesting but wholly immaterial question whether that would amount to a partnership. Of course, as a general rule,* an agreement to share profits of & business is piiraa facie evidence that the persons do so as partners, but the receiving of a sharo or a payment contingent on the making of profits in a bxisiness does not in itself make them partners in the business. Whether the plaintiff and the defendant might be held to ba partners on account of this agreement to share tho profits is a very interesting question, but has no bearing on the present case because there was no nartnership business in tho sense that there was anything to be done by the two parties. The defendant had simply bound himself not in any way lo interfere with the plaintiff's working of the mine. J^vow, the plaintiff has shown that the defendant has interfered with, his working of the mme — that he 'has done so on several occasions. He has naturally chosen specially an occasion a few days before the day on which he came to this court for relief. An interim injunction was granted. The plaintiff had shut down the mine in consequence of interference by the defendant, and it is, therefore, natural to suppose that the mine has remained shut down from that day to this. It is probable — I do not say it is so because I have no evidence of it, but judging from the evidence before mo it seems to mo that the defendant has not interfered with tho plaintiff since then for the excellent reason that there has been nothing to interfere with, as the plaintiff was not working the mine. An interim injunction having been granted, not'ee was given to the defendant that application would be uiado to have that interim injunction made permanent. The defendant has at the last moment filed a statement of defence — no affidavit, no evidence. By that statement of defence he seeks, first, to say that he entered into the agreement under a misunderstanding as to terms and, second, that the agreement which was put into writing was only part of the agreement that was made between the parties, and that there was some parole agreement that the defendant should be employed as a servant by the plaintiff. Tho plaintiff may certainly have entered into such an agreement with the defendant. I think it is very probable that he did, but there is no evidence whatever that there was a binding agreement that the defendant was to be employed for any definite time, and if the plaintiff did dismiss him from his employment there is no evidence that he was not perfectly justified in doing so. As to whether certain wages were owing to the defendant at the time of his dismissal, even if that were so, it would not justify tho defendant in interfering with the customers of the plaintiff taking their coal away; it might have been ground for an action in the -t-.gis-trate's Court, but the matter has nothing to do with the present question. I must hold, therefore, that the plaintiff has clearly established his right to an injunction — that is, to a permanent injunction — which will be granted with costs. The costs were fixed at £10 10s, with disbursements.