SUPREME COURT.—IN BANCO.

Wanganui Chronicle, Volume XVII, Issue 2420, 1 May 1874, Page 2

SUPREME COURT.— IN BANCO.

Thursday, April 30th. (Before His Honor Mr Justice Johnston.) APPLICATION FOR RULE NISI. This Was an application by Mrs Isabella McGregor for rule nisi calling upon the Resident Magistrate of Wanganui, James Towrisend Edwards, John McGregor, and Frank Ledbnry to show cause why a writ . of mandamus should not issue against the Resident Magistrate commanding him to j hear the cause of Mrs Isabella McGregor (with whom John McGregor was joined for conformity) v. Frauk Led bury, brought in the Resident Magistrate's Court, and which the Resident Magistrate uad allowed John McGregor to withdraw, although indemnity was offered for hia costs. An affidavit had been tiled by the applicant. Mr, Hutchison for the applicant. Mr Hutchison in stating the grounds of the application said that while he found by the 121 st section of the "District Courts Act " that a rule nisi would be sufficient for such pauses in the District Court, yet no such facility was afforded in such cases in the R.M. Court, for which a mandamus was necessary. His Honor — Have you satisfied yourself that the proper course is not by procedendol Mr Hutchison replied that he had. The learned counsel then read an affidavit by Isabella McGregor to the effect that Isabella McGregor was living apart from her husband under a sdeed of separation dated >lov. I3th 1869, that she instructed Mr Hutchison to take proceedings against F. Ledbury for £11 rent and £10 for repairs to a shop situated in Market Square, next; door to Atkinson's Hotel in pursuance of an agreement entered into between her and F. Ledbury, by which the latter agreed to rent the premises for a period of two years, com mencing on the Ist of Jan 1872, That on the 17th of Feb 1874, the suit was determined by Jas. Towusend Edwards R.M. at ,Wanganui in favor of her (plaintiff) ; that a rehearing was applied for on Feb 18th by Mr Hodge, acting for F. Ledbury, on the ground that plaintiff being a married woman could not sue in her own name ; that on March 3rd the case was reheard and judgment reserved, and that on March sth judgment was given against the plaintiff. The affidavit vent on to show that on the 6th of March last, John McGregor her husband authorised his name to be used with hers as a joint plaintiff, that proceedings were again instituted, to be heard on March 24th, but on March 23rd her husband made a proposal to her to sign a document breaking the will of the late Christina Lockhart, under which Isabella McGregor was entitled to the rent of the premises let to 111.1.I 1 . Ledbury and failing her consent to which proposal he would withdraw the action against Ledbury, that she declined the proposal thab on the same day her Solicitor received a letter from John McGregors tatmg that the property let to F. Ledbury was purchased with his money, and that unless she consented to break the will before mentioned he would withdraw the action against F. Ledbury. Further, that on March 24th John McGregor stated beforo the R. M. his desire to withdraw the case, that her Solicitor objected to the withdrawal and offered to idemuifying John McGregor against costs, but that the Resident Magistrate allowed the case to be withdrawn ; that she had not authorised the withdrawal of the ca3e, nor had she received the amount claimed. His Honor — Mr Hodge, do you oppose ? Mr Hodge said notice of the' application was only sent to him at 4 o'clock on the 29th, and no copy of the affidavits had been sent to him. His Honor — Then you do not appear. Mr Hutchison was proceeding to argue wneu — His Honor agreed that while a married woman has no right to use in her husband's name, inasmuch as the husband would be responsible for costs, and he might protest against any pro seed ing uutil an indemnity is given him for costs, yet even in a Court of Common Law the husband will not be allowed to make null his wife's right of action if costs are indemnified. Mr Hutchison said the Court of Queen's Bench would exercise control over an inferior Court which refused to exercise its jurisdiction. His Honor — In this case the Resident Magistrate does not say " I have no jurisdiction," but " you have not brought the proper parties to the suit, and as you have not brought the proper parties I refuse to hear the case." Mr Hutchison — We could not appeal against such a decision. His Honor — Why ? He gives a judicial decision. As there are costs to pay there must be a judgment for them. Mr H utchison said that was questionable, but the- decision, such as it was, gave him no ground for appeal. Hia Honor — How can you recover coats ? He does not decline jurisdiction ; he says he has the wrong parties. Therefore it is no matter for appeal. He gives judgment for defendant. Mr Hutchison — That is not the entry. His Honor — You say that it comes to this — The nominal party withdraws the action, the real party insisting upon proceed iug. Mr Hutchison quoted authorities from Wynn v. Wynn, 9 Dowling p. 306, Chitty's Practice ; Morgan and wife v. Thomas, 2 Dowling p. 332 ; Harrison v. Almond, 4 Dowling p. 321 ; Proctor v. Brotherton, 9 Ex. 23 L. J. p. 116. His Honor granted a rule nisi returnable at Wellington on Friday, May Bth.