SUPREME COURT.

Star (Christchurch), Issue 2714, 9 December 1876, Page 3

SUPREME COURT.

I'". ,'.,, .uJSFpiXt&X, DEO, 8# :! .<;,. :•.!•-.,. W (Before His, Honor Mr Justice Johnston.) SITTING IN CHAMBBBB. Bffl GOODB OTf JOHN QIVL, DEOHABBD.— Mr Thomas made an application for order for leave to issue <letters of administration to Margaret Gaul and Alexandor M'lntosh Gaul, M Widow and, brother of deceased. Applioa* (fon granted. Bh War. John Bleakiißy, Deceased.— Mr Joynfc applied for an order granting letters of administration to Thomas Bloakley, as son and next of kin. The application was granted on tho usual terms. BrroktHy awb Othbbs r.PAiir.—MrOowHuhaWftppHotlfor order for leave to enter up judgment in default of plea. Mr Harper appeared for the defendant, and said ho had reoeived no notice. Mr Oowliahaw said it was not competent for him to appear, as there had boon no appearance of tho defondant. Judgment had gone by default. Mr Harper said he would consent to judgment being entered up. Judgments was entered up accordingly for tho cum of £340, with oosts. IK BANCO. TlttS QtTHEir T. MBMIBH AND JiATTHB V. Bnoo»BNS.— Dr Foster for the Brogdens } Mr Harper for Mr Mollish, and also for .the plaintiff below. In this ease* a rule was applied for on Deo. 2 for a writ' of prohibition against the aotion of tho Besidtot Magistrate of Ohristohnrch. It appeared that a summons was taken out; againafc the Messra Brogdens by' the plaintiff in the Court below j but that the aotuftl defendants being out o£ tho Golony the aummofls Wan served i upon Mr BilUne, of Wellingfcort, who acted in their abaenoo tie'dor a power ?of attorney, giving him the usual power! and . privileges in suoh loasos, Tho caiowate (heard on Nov. 28, when, after argu< menfc, Mr Melliah dooided that, in the abseneo v of Messrs Broadens, the summons was proporly Bwved upon the person holding their power of attofnoy, and gave Judgment accordingly . „ To this decision Mr Billins took exception; and alow days after the judgment, application waamadoto the Supremo Court for a rule «2fli, which was gfaritbd. It was made return- | able for yesterday, when Mr Harper appeared to show oauio, and Dr Foster on -the other side. Mr Harper stated the facts at length, and proceeded to read affidavits, and quote authorities in support of his statement. He took, however, a preliminary objootion, and r urged that the matter had not been brought < before the Court properly. With regard to the deoision of the Besidont Magistrate-^ according to tho Act the discretion was left ; With him as to whether ; he would hear the case or not. The Court held that it was not so muoh a question of sorvioo ao a question of jurisdiotion. Tho Bosident Magistrates 1 Act did not 4 give jurisdiction in a oato where the defend* antt were absent, from the oonntry. •■.•■ Mr Haipor said tbo Courlj had decided that Billinahad acQeptod tho aer vice of the sura* mms prdperiy, He (tho speaker) toad no doubt that he had deoided wrongly in this matter, but he bad arrived at that deoision— ,

ithafc the ; summons hacl ' been- served and aoeepted»dnbehalf of Brdiden--afte* hearing eviaenoo. The Court said suppoßo ho had done bo, did that give him jurisdiction in a ease whoro he would nob have had jurisdiction otherwise. The Resident Magistrates' Aot did not give power over absent defendants. He had long ago said that when a man gave 4 power of attorney, the person who hold it should he liable to bo suod. on behalf of him, lor whom it was held. Mr Harper said the power of attorney was not in their possession,, and ho would ask for an adjournment io produce it and other papers. Dr Foster snid be had rery carefully examined a largo number of authorities, but ho could find no authority giving any suoh powor as that exoroiaed in this ease of serving a power of attorney vith a summons under the oiroumstanoea of this oaso. [Mr Billing' evidence was here read.] Mr Harper, said that Mr Billina bad not sont his power, of attorney down to tho Court. His Honor said it ought to have been presont. It was tho chief ingredient in the case. This was a matter of great public importance. Was Dr Forster prepared to show that he would bo able to maintain tho position he had taken up . in referenoe to the matter of. the power, of attorney P His own impression was that a full power of attorney; put the person holding it ra exaotly the samo position as him who gave it, in fact, that it made him a perfoot alter ego* Mr Harper had soon tho power of attorney, and he oould stato that ib gave Mr Billins powor to sue and bej sued .and to proacouto and be proseouted on behalf of Messrs Brogden. • His Honor remarked, that, unloßß, Mr Harpor oould satisfy him that the powor of being tfued generally was not sufficient to giro jurißdiotion to tho Court ho' should hard tp adjdurn the oaso in order that ho might hove tho powor of ottornoy before him, ; Mr Harper then proceeded to quoto ft numbor of authorities to show that 'the rnl6 ought to be discharged. Among the oases quoted, was one that Was triod at Dunedin not vory long ago by Judge Chapman, in which it was stated that Billina was enabled to bring actions on behalf of Messrs Brogdon by, virtue of his power of attorney. It was not, however, produced. In that oase the Brogdens were tho plain* tiffs. Dr Foster then proceeded to argue that tho rule should be made absoluto, and confined himself to tho one question of jurisdiction. He argued * that the Supremo Court) had jurisdiction over all British subjects, wherever they might bo ; but if so, it did not follow that inferior Courts had the same power. The 7th clause of the Eoeidonfc Magistrates' Aot clearly defined What their power was. Ho contended that the Rosident Magistrate's Court had no jurisdiction over people living beyond (the colony r and that if redross was required against such, the Supremo Court must bo appliod to. The oaeo having been argued at considerable length, his Honour said the question was too important a one to be decided pf£ > hand, and/ lio would thorefore reservo his deoision. He would like to bavo the power of attorney | in ' faot, he could not decide the oaso without it; It might be that it was extremely proper to bring this matter forward. It was certainly eery desirable to hayo the question settled one way. or tho othor, even if it led to fresh leg's. Jatfon, He would giro judgment at a future ftanoo sitffrfg. >,j M ■:■ -' * 1 I ■'.- : ' .