JUDGMENTS.

Press, Volume XLIX, Issue 14830, 22 November 1913, Page 14

JUDGMENTS.

j-'', Tavo reserved judgments were given Iby Mr Justice *Dennistou at the j Supreme Court yesterday. | A PROMISSORY NOTE... , His Honour gave judgment in the case Michael Tulley ,(.appellant) v. '"Walter Joseph Cresswell (respondent), lan appeal from the decision of a sti- | pendiary magistrate on a claim by the j respondent to* recover the sum of £11)1 i 7s, the amount of a promissory note, j made by the brother, mother, and sister of the appellant in favour of the appellant, and endorsed by the appelj lant, with £10 10s interest. The claim , was made in' two forms, one on the j promissory note, and the other on a I promise by the appellant on June 7th, ! ixi consideration of the respondent not taking, any proceedings npon the promissory note, to pay same -v-thin fourteen days. The magistrate gave judgment for the plaintiff, the respondent, for the full amount claimed with costs His Honour, after reviewing the facts of the case, and the law-points involved, said he had come to the conclusion that the respondent, while ho did not say that he knew ho had no claim, .had entirely failed to .satisfy him that he had any reasonable ground for believing without enquiry that the possession of the overdue note, taken as he-took it, in circumstances which stamped it unmistakably as accommodation paper, gavo him a right of action against the accommodation endorsee! In his opinion there was neither a real claim nor a buna fide compromise. ' In any case the manner' in which the so-called compromise was effected would, in his Honour's opinion, make it improper and int-quitahle for ft Court to enforce.

Mr Wilding, for respondent, asked for leave to appeal to the Court of. Appenl. ■' • .

His Honour: On what grounds? "Mr Wilding: On the .ground that there is an important principle involved. The cases are contradictory on the subject. v

His Honour: I don't think they are. Mr Wilding: Wo are quite willing to have, the application granted on terms that the appellant should not be asked for any costs, in any event.

His Honour: From any. point of view, there are no merits in. this case. Therespondent was successful in obtaining from the magistrate a sum of money to which lie has no moral or equitable <t;]nini. If he had gone to law instead of milking a new arrangement with the appellant, he must liave failed. .Mr Wilding: Yes. His Hqnou'r: Then you ask that this Farmer, .the anpellant, is to run the risk of establishing an interesting question of law? That is what it comes to. Mr-Wilding: That is the application I am instructed to make. His Honour: Those are. my reasons for declining it. * AX. AFFILIATION APPEAL. .His Honour. gave judgment in tho case, John Scott Myers v. Aibert Herbert Crozier and H. W. .Bishop, motion for mandamus. . On October ' 17th. 1012. the defendant Crorier was, on the complaint ot Myers, adjudged by JlrV.' G. Day, S.M., to be the father of the female illegitimate child of the daughter of the plaintiff. On appeal to thfc >Supreme Court, that finding was reversed, ami the appeal allowed, the evidence relied on by the iaagistrate as corroborating the story of tae mother not

having been sworn to'in the Supreme Court. On November 7th,. 191*2, the plaintiff laid a complaint against the defendant Crozier, alleging the same facts as in the previous complaint and requiring that he should show cause why an affiliation order should not be made against him. - The plaintiff alleged that he had obtained fresh, evidence in support of tho subject matter of the complaint. On that complains the defendant, Mr H. W. Bishop, S.M., declined.to issue a summons, on the ground that Section, 67 of the Destitute Persons Act, 1910, applied only to cases where there was a dismissal of a complaint, cr a refusal of a magistrate to make an affiliation order under the Act, and that there had been no such dismissal or refusal in the present case.

His Honour said the motion was one for a rule nisi calling on the magistrate and the defendant Crozier to show cause why a mandamus should not issue requiring, the magistrate to proceed to consider and dea) with the complaint. The plaintiff, in issuing tho summons and in r,he \subsequent proceedings, acted as his own adviser, and they were extremely irregular. As, however, the question as to the construction of section 67 of the Act was one of somo importance and as he was informed,, the construction put upon it by the magistrate here had been accepted, counsel for the defendant bad agreed to waive any question of form, and counsel who had acted for plaintiff in the earlier proceedings had consented to put his case before the Court.

His Honour held that it dismissal by the Supreme Court of a complaint under the Act was within the section, was the allowance of the appeal tho dismissal of the complaint? He thought it was. The complaint was. in fact, dismissed, and dismissed by the order of the Court allowing the appeal. That conclusion, his Honour added, was certainly consonant to tho spirit and intention of the Act. The object of the soction was to restore to a complainant under the Act the right for procuring fresh evidence or other reasonable ground to take fresh proceedings for the original cause of complaint. ! There was no reason why the fact that ths Supreme Court had, on what was a re-hearing (it might be, as in the pres.jnt case) on different evidence, come to s different conclusion from the magistrate, should deprive the complainant of the privilege given .by the section. In his Honour's opinion the case was within the section, and it was open to the complainant to make his present complaint in the matter against the defendant. There would, of course, be no necessity for any formal order. In the circumstances there would be no costs.