SUPREME COURT.

Otago Witness, Issue 2428, 26 September 1900, Page 9

SUPREME COURT.

CIVIL SITTINGS. Fbiday, September 14. (Before His Honor Mr Justice Williams.) - AITCHISON V. THE KAITANGATA. BAIL WAY AHD COAL COMPANY. His Honor delivered judgment, on the summons to settle the decree, as follows : — j At the hearing of the case I intimated that it seemed to me desirable that the inquiry as to the quantity of coal on which royalty had not been paid should be condxicted before myself, and not before the registrar or some third person. I am still of the same opinion, for the reason that the facts of the, case are "very complicated, and that anyone other than j myself would have to start from the -begin- ' ing, whereas I have had the advantage of listening to evidence for more than a week, and have some notion as to what the facts j in dispute really are. Time and expense •would probably be saved by my liearing it, especially as each party has a right on any single point to come from the registrar to the judge. The question is whether there is any jurisdiction to order that the inquiry be held before the judge. It was contended on j bshalf of the defendants that there was xio ! such jurisdiction, and that if there ever was i any such jurisdiction it had been taken away by the statutory rules of the code of civil ; procedure. This contention is founded on a misconception. The registrar or other per- j sons to whom an inquiry is to be entrusted lay the rules do not foini a separate tribunal. IThey are appointed by the court in 'order that the court, by means of the information obtained through them, may exercise its judicial functions. If the court can do without them, and thinks it can exercise its functions "better without their assistance, then it can, of course, do so, unless there is a statutory provision which expressly prohibits it so doing. I'fi/id'iio such expressed provision in the rules. The rules must be construed in accordance with well-undei stood -principles. As stated hy Vaughan, J., in Collins v. Aron (4 Bmg, •IV.C, at p. 235): "If the judge is willing to do it, and can save expense, it is clear that ■what the officer of the co\irt may do the judge may do ; and boni judices cst' arnpliare jurisclictionem — i.e., justitiam." By rule 432, moreover, each party has an absolute right to have any particular point, even the minutest .which may arise in the course of an inquiry, considered by the judge. (Hayward v. Hayv/ard, I. Kay, appendix XXXI: Scott v. Homer, 63 L.T., 618; in re Rigg, Wadham v. Uigg, 6 I/.T., 180; Agricultural Cattle Assurance Company, in re, 30 L.J., eh. 619.) As v/as said by Kekewich, J., in Scott v. Homer, fi party nipy say: '"I am not content with the opinion of the judge's representative; J want to gc to the judge in person." This 'xin-ht is an unqualified right on the part of the suitor, and is subject only to the risk of •costs if exorcised improperly. It would be odd if the judge were prohibited from orclerin" an inquiry to be conducted before hirn■seff, when either party could insist iipon "bringing before him every single point or matter which arose in the course of the inquiry. The inquiry will, therefore, bs ordered to be conducted before the judge. It would m the ordinary course be conducted ir> Chambers. If in the course of the proceedings it becomes. :aecessary or desirable to move the inquiry -into court the rules give j;ower to dc ro. There is no need to make any order for the examination of any officer* of the company. Either paity who wants n, witness can call 2wa ia the ordinaiy course. The onlj; »ther

question is as t# the use at the inquhy of the evidence already taken. The English rule under the Judicature Acts (order 37, lule 25) follows the old rule in Chancery, and provides that all evidence taken at the hearing of any cause or matter may be used in any subsequent proceedings in the same cause or matter. I do not see how. the application of this rule in the present case would work injustice even if the defendant had no further opportunity of cross-examining the plaintiff's witnesses. The plaintiff's counsel, however, have expressed their willingness to call svich witnesses as the defendant may require to cross-examine. If, however, any such witness cannot be got, his evidence already given may nevertheless be used by the plaintiff. His Honor : As to the costs of the summons, you ask for costs, I suppose, Mr Chapman ? Mr Chapman : Yes ; it is really a continuation of the proceedings. His Honor : Yes ; a necessary step. It took all day. Five giiineas plaintiffs costs in the cause. The following is the decree as settled by the judge: — " This action having been tried before Mr Justice Williams without a jury on the 17th, 18th, 20th, 21st, 22nd 23rd, and 24th days of August, and the 3rd and 4th days of September, 1900, upon oral evidence given by witnesses •called upon behalf of the plaintiff, and the. maps, plans, books, papers, and documents exhibited to the court therewith, including therein all the books and records of the defendant company so far as they are relevant to any qiiestlon in this action, and the pleadings and the various affidavits, oiders, and documents filed m the action, and upon hearing Mr F. E. Chapman and Mr W. C. MacGregor, of counsel for the plaintiff, and Mr Solomon and Mr Woodhouse, on behalf of the defendant company; and it being admittsd Ly counsel for the defendant coiM|:>a/iy that plaintiff is entitled to judgment, ""as herein, appears, this court doth hereby order and adjudge as follows:— (1) That the defendant company has not kept pioper books, with checks, for the entiy of all coal mined and removed from the plaintiff's land, in terms of the defendant company's covenant in that behalf. (2) Tliat the defendant company for many years up to the Ist day of August, 1898, has mined and carried away large quantities of coal horn the demised land described in the statement of claim, in respect of which royalty should have been paid, and has not paid any royalty to the plaintiff /in respect of the same. (3) That the defendant company has from time to time sup- ; plied the plaintiff with returns of the output of coal from the said land showing and leprej senting such coal to be much, less than it really [ was. (4) That the plaintiff has only recently discovered that the said returns were and aie false, and that no royalty has been paid on those quantities of coal which should have been specified in siich returns, and are r.ot so specified. And it is accordingly further adjudged that the following accounts and inquiries be taken and made: — (1) An inquiry as to what quantities of coal have been mined, carried away, 'and sold under the instruments of lcn.se in the pleadings mentioned upon which royally should have been paid to the plaintiff, and has not been paid; and in particular an inquiry as to what quantity of coal v/as gotten, carried away, and sold by the defendant company from the seams and mines on the land belonging to the plaintiff and the land of the defendant company hereinafter mentioned rc1 spectively in tlio years 1803, I&S4, 1805, IR9G, and | 1897, and the year 1898 down to the ]si, day of : August, and what jJropoition thereof was obj tamed from the land leased by tiio defendant ' company from the Corporation of tho .Borough, of liaitaiigala; and that in aiskisig the last-

mentioned inquiry the defendant company be treated on the footing of being accoiintable for all the coal gotten, carried away, and sold by the defendant company, except what it shall prove to have been gotten from land other than the land demised by the plaintiff. (2) An account of all sums of money due and unpaid to the plaintiff for royalty, showing the respective quarter days when the same became paj able. (3) An inquiry as to what sums should be allowed and paid to the plaintiff for interest on such sums of money as shall be found clue and unpaid to the plaintiff for royalty, as from the quarter days when such unpaid sums respectively became payable until actual payment thereof. And it is ordered and adjudged that th^e defendant company do pay to the plaintiff the amount, if any, that shall be certified to be payable in respect of any of the aforesaid matters. And it is ordered that, for the purposes of the aforesaid accounts and inquiries, tho defendant company do file within 23 days from the 4th day of September instant, in this court, an account in accordance with the second paragraph h^r^of, verified by the affidavit of all the liquidators of the said company, and that such accounts and inquiries be taken and made before the judge. And that in taking the said accounts, and making the said inquiries the plaintiff may use and refer to all or any part of the evidence, books, plans, and documents given and referred to at the trial of this action, without any admission of the tiuth of any of the entries or statements appearing in s\ich books, plans, or documents, with liberty to adduce such further evidence as he shall think fit, and that the defendant company be at liberty to adduce such evidence as they shall think fit, and that the plaintiff shall, when practicable, produce at such inquiry for further cross-examination pny witness or witnesses called at the trial whom the defendant may in writing require. And it is further ordered and adjudged that the defendant company do pay to the plaintiff the costs of this action (including the said inquiry), and including the said trial, such costs of the action and trial upon the highest scale, as if an amount hereinafter to be fixed by the judge had been recovered, with 15 guineas per day fox seven further days after the first, and allowance for second counsel, and together with witnesses' expenses, including qualifying expenses and disbursements to be fixed by the registrar, together with tho costs of all interlocutory proceedings, reserved or not, heretofore allowed to the plaintiff, and the further costs to be hereafter ascertained. And it is declared that the allowance of costs herein shall not prejudice any claim the plaintiff may have to recover all or any of his costs, charges, and expenses by way of damages for the defendant company's breach of the beforo-moniioned covenant to keep proper books. And it is further ordered that tho question of what damages have been incurred and suffered by the plaintiff through and in consequence of the defendant's breach of the &aid covenant to keep proper books and checks as aforesaid be reserved for further consideration. And it is further ordered that either party have liberty to apply, to this court or a judge thereof from time to time, as ho or it may be advised, and that fhe conduct of all proceedings be given to the plaintiff, and that in the meantime the further consideration of this action be adjourned."

A CoiuiEHCiAL Christening.— The wellknown Liobig Company's Extrrsc' now bears in addition io il.f Liv- -isiiisiUiro. " J. V. Liebig," ;i new naii^ '■ '1^ limn tin '.njpig's E\trr.et of Mi iu C in,; ['>'-> n. nuil - ' Lrinco." _&uch a simple <Ji\>i'* to m<M.*i,i i .i:Uikcs wo wonder was n <l iliDiifjht oi balcva.