SUPREME COURT.

Evening Star, Issue 3180, 30 April 1873, Page 2

SUPREME COURT.

IN BANCO.

This Day. (Before His Honor Mr Justice Chapman.)

Ogilvjk (Appellant) v. Bank or New Zealand (Resp.)—His Honor delivered judgment in this case as follows :

Anneal from the Court of the Resident Magistrate at Oamaru upon an interpleader summons. Two questions arise: Firstly, whether the Supreme Court has jurisdiction _ to hear the appeal under the Resident Magistrate s Act, 1867, sec. 100; and secondly, whether (if tins Court has jurisdiction) the decision is correct in point of law. The first question, which is of considerable importance, was very elaborately argued by the learned counsel on botli sides, aim a case in this Court was referred (Taylor v. Drcwy, Bth June, 1871) which, if sustainable, is against the appeal. But that case was decided under circumstances which render it of weak authority. The question of jurisdiction was not argued, there was no such critical examination of the language of the English Act, as compared with that of our Act, as those Acts have now been subjected to. My note of the case of Taylor v. Drexcry is very brief; but I believe it embraces all that occurred, Mr Macassey moved that the case be struck out for want of jurisdiction, and he cited Besxinek v. Bofftv, 0 Etch, 315, of which the marginal note runs thus : “No appeal lies from the decision of a County Court Judge upon an interpleader summons. ” Mr Haggitt yielded to the authority of the case, and admitted that tfia Court had no jurisdiction. Whereupon, after reading the judgments in Besxoiek v. Boffey, I ordered the case to be struck out. Beswkk v, Boffey is still strenuously relied on. The judgment of the Court turned on the wording of the 14th Section of the English County Court Act 13 and 14 Vic. C. 61, which is as follows: “If either party in any cause of the amounts to which jurisdiction is given to the County Courts by this Act shall he dissatisfied. . . . Such party may appeal, fee.” The Court considered thalb (tips right of appeal limited to those who w«r« strictly parties in a cause, which a claimant yndqr su interpleader summons is not. A rule of Court which had been made by the Judges was relied on. It that in an interpleader suit or summons ihe qiaiipant should be plaintiff and tire execution creditordefendant, and this, it was contended, made the claimant a party in a cause within the meaning of the section. But the Court decided that inasmuch as the Statute only empowered the Judges to make rules concerning the “ practice and proceedings in Court,” the learned judges who framed the rule could not have intended to go beyond that practice, and to give an appeal which the Statute had not given, and if they had so intended they had no power to do so. The decision being thus founded on the words “ in any cause,” it is contended that the absence of those words in the Act of 1867, sec. 100, renders Berwick v. Boffey inapplicable, and lets in the appeal. But it was urged on behalf of the respondents that there is no substantial difference in the words “either party in any cause” and “either party,” inasmuch as the legal import of the word “party” is “party in some cause.” To put it as strongly as possible : without a cause there can be no party. To obviate this technical interpretation, the 72ud section of the Act of 1867 is invoked, and it is contended that as the Legislature has made use of the words “party making the claim,” and requires the magistrates to “ adjudicate between the parties,” the moaning of the word “ party” in the section giving nji appeal is in a manner interpreted by the Legislature, so as to include interpleader summonses. Rot this argument was used without effect in Sesmekv. ftoffex/, founded on the language of the interpleader clause jji the English County Court, Act 8 and -9, Vic.,bfy, sec. 118, “The’Courfcshaß adjudicate won such claims, and make au<?h orders between the parties in respect thereof,” &c. True, it has somewhat more weight (u this case, owing to the absence of the words “in any cause,” but is not conclusive. There is another difficulty, however, which seems to have been lost sight of in the argument, arising out of the wording of the 100 th section, which either docs not arise, or at least does not appear so formidable in the wording of the English Act. The 100 th section of our Act gives an appeal whenever the sum claimed shall exceed twenty pounds, &c. Now, in the case of an adverse claim uudor section 71, and an interpleader summons under section 72, there is no sum claimed as contemplated by section 100, Though there is a condition as to the deposit of money, the, claim is to “thegoods taken in execution.” I look to the claim put £n-,fyy the Bank in this case, and I find that it is couched in the following words: —“The Bank of New being claimant under an interpleader’summons'(issued in the above cause, claims the following iioy&op and chattels, the property of the said Bank.” follows j a schedule of tlm property claimed, qtpor j particulars required by the Act, but hot a word of any sum claimed even in the alternative. It is true that horses bear a value, and perhaps under the English Aet which employs the words “amount for which the Court has jurisdiction,” instead of “the sum claimed,” the difficulty might have been got over, if the Court had considered the rule of Court already alluded to effectual to get over the other difficulty t l»Ut P an If be said that because horses have a value, a specific claim for such horses constitutes a “sum claimed ?” I am of opinion that it cannot. It follows, for the reasons above given, that although Taylor y, Preiory was perhaps somewhat hastily decided upon the single authority of Beswiek v Boffey (since, however, approved of and followed in Fraser v. Fotherylll, 14 C.B. 295), I think it was correctly decided, and therefore that this appeal must be 1 dismissed. The only question which remains is ' whether it should be with or without costs. 1 Efforts have been made of late years by the several Courts in England to observe uniformity, as to costs, but without such inflexibility as to' interfere with their discretion. (Per Parke B. ' ju Quthwaitc v, ffwivon, 7 JSxch. 381.) I have

declined to fetter the discretion which the law fives to the Courts by yielding assent to the ■imposition, often urged, tint where the Court lecides against the jurisdiction it has no jurisliction to award costs. It has jurisdiction to mtcrtain the question whether it has or has iot jurisdiction, and that, I think, is enough let in its discretion as to costs. But t find that although costs are almost invariably given to a successful respondent where mi appeal is dismissed on the merits, and latterly to a successful appellant where the judgment below is reversed (Gibson r. Gibson, Id Com. B. 219; Leideman v Schultz, 14 Com. B. 52; Outhwaite v Hudson, 7 Exch. 381) : yet the general,_ but not inilexible practice, whore an appeal is dismissed or struck out for want of jurisdiction (that is where no appeal lies), is to dismiss or strike out without costs. In Abbott ik Feascy, 8 W. R. Cl 7, in the Exchequer Chamber ; in Groves v Jansen , 9 Exch. 481, and in Fraser v Fothmjill, 14 Com. B. 293, the dismissals wore without costs. In Bestride v. Boffcy, costs were given, but in Taylor v.Drewry I declined to follow that precedent, seeing how great was the preponderance of the practice the other way. Inis appeal will therefore be dismissed without costs.

Note. —To remedy the omission in the County Court Act, disclosed by Keswick v. Boffcy, the 19th and 20th Vie., c. 103, was passed, giving an appeal on interpleader orders; and to remedy the further omission which gave rise to the case of Groves v. Jansen, the 17th and 18th Victoria, c. 16 was passed. Gallon v. Cameron and Another.- His Honor also delivered judgment in this case as follows :

Rule to enter a nonsuit in pursuance of leave reserved at the trial. The action is in ejectment. The defendants held under a lease from the plaintiff, and their term expired on the 26th of May, 1872. They held over, and on the 28th May the plaintiff sued out his writ. The plaintiff had, in the second time, let the laud to one Hewitson, whose tenancy commenced on the 28th, and on the 29th the defendants went out of possession, leaving Hewitson, the new tenant, in undisturbed possession. The writ and declaration were served on the 31st of May, when the plaintiff had parted with his right of entry to Hewitson, when Hewitson had obtained possession of the land, and when the defendants were no longer on the demised premises. It is contended, on behalf of the defendants, that they are entitled to a nonsuit, on the ground that the plaintiff ought to have a subsisting right of entry at the date of the writ and up to the time of the service thereof, and that, if he has parted with his title to another (as the plaintiff had done), he cannot recover (Doe d. Gardener v. Kinnard, 12 Q, B. 244 : Jones v. Davis, 38 Law J., Ex. 374 ; and Owen v. Owen, 33 Law' J., Exch. 237, were cited). For the plaintiff it was contended that the defendants, by the terms of their lease, were bound to give up possession on the 26th May, and that as the landlord is liable to an action at the suit of the new tenant for not giving him possession, the former is necessarily armed wit>. power to eject the old tenant, to enable the lessor to perform his contract, with the now tenant; and that having that right on the 23 th,~ the date of the writ, it is no answer to say that the old tenant was out, and the new tenant in, at the time of the service of the writ. Doe d. Kniyht V■ Bmyth, 4 M. and $., 347; Brumley v. Chesterton,'% Cipn, B. N.S., 592; Gibbons v. Buckland, 32 Law J,, and' U W.R., 380; and Blatchford v. Cole, 5 C.8.N.5., were relied on. Before the Common Law Practice Act had converted the lessor of the petition’s plaintiff into the plaintiff on the re cord, it was necessary that the lessor of the plaintiff should be possessed of the right of entry at the date of the demise. If he had parted with that right to another, he could not recover. True, as a general rule, the tenant could not deny his landlord’s title -that is, he could not set up any defect in the landlord’s title at the date of the lease to himself. But as in Doc d. Gardener v. Kinnard, he could show that the landlord’s title, originally good, had expired before action brought; because the lessor of the plaintiff, who was the real actor, must succeed in the strength of his own title; and the tenant in saying, “You have parted with your right of entry,” or “ your title has expired,” docs not deny his landlord’s title, but rather admits the same had once existed. The Common Law Practice Act got rid of the fictitious plaintiff, and made the former lessor of the plaintiff the plaintiff in the new foi'ik qf action; and the principal provisions of' the Act 'have been incorporated m our rules (under part ‘Vi. as 'to actions for land”). The action is still’, as "it always was, founded on the plaintiff’s‘right pf “Aff-cjedt-ment,” said Lord Mansfield m Taylqr V. Horde, 1 Barr. 119, “is a powmMory remedy, and only competent where the lessor of th§ plaintiff (now the plaintiff) may enter; therefore it is always necessary for the plaintiff to show that his lessor had a right to enter,” How can that be shown if he has parted with the right of entry to another ?” His right of entry must subsist at the date fif the writ, and must continue up to the time qf ilw service thereof. This appears from oiir rule 406, which 15 a copy of the 181st seotioff Qf the Comipohßaw I'racr tice Act of 1852, It provides that if the claimant has title (that is a right of entry) at the time of the service of the declaration, he shall be entitled to the verdict, though Ms title shall have expired before the time of trial. I am, therefore, of opinion that the plaintiff, having made a lease to Hewitson, to take effect from the 28th of May, and so parted with bis right of entry before the 31st May, when the writ and declaration were served, had lost his ijj,«lit of action for the recovery of the land, though he- rqight have had such an action as m Drumlei) v.'phestertyr,, had the circumstances rendered such' an action tenable, Xhe cases cited by Mr Stout do not"in any way muita);e against tiffs view. Gibbons v. Jiuckland gives effect to section JBL anti consequently to Oiir •166 th rule. It decides Huff: ffhp re plaintiff has the right of entry, and CQUsmuontJy a right of action, at the date of service ol the Writ, ft js no objection to his right to a verdict, that hw title had expired before the time of trial. Blatchford v. Cole seems to hftvg no application to the point under consideration, ft decides that the landlord’s right to recover double yajujj is confined to himselt, and does not extend to one to whom ho has granted a .fresh lease. Brumley v. Chesterton decides this: Hint ft Hewitson had sued Gallon and recovered damages for not putting him in possession, Gallon might have recovered the same damages and costs from the defendants. Ihere is another feature in the case which I think ought to bo noticed, though it was not attended to by counsel. This is an action for land, as our rules briefly call it, that is, it is an action for the recovery of the possession of land, the possession whereof is wrongfully withheld from the plaintiff. Upon whom should the writs and declaration be served? Obviously upon the person in wrongful possession. It may also be served on an adverse claimant not m possession, in order to try a disputed title, and may be affixed to a vacant possession. Nqu' the defendants here were not the persons iff pffssosNvh on the 31st May. The land was not a vacant because the plaint new tenant was hi before 31st May; and there is nothing tb shoW’ that the were adverse claimants, agfuiMt Vfhom rim plaintiff ?.mgbt to establish hiA title Muthiu the meaning .of tip? fjyjqnff paragraph of Rule 4b(). I incline to think tori * ground of nonsuit, but it is not necessary ft) lyaMfi ifftm of the foundations of Jny judgment, inssmucq as I am of opinion that as the plaintiff had no right of entry on tho day the declaration was served, lie cannot recover. Ride to enter nonsuit absolute, with costs. Nutter v. Pritchard. — Mr Barton, instructed by Messrs Macasscy, Chapman, and Holmes, applied for a decree, Mr fejnith and Mr Stout for the defendant. After argument, his Honor decided that the defendant was entitled to judgment on the record, and decided that the defendant was entitled to the general costs of tho cause and of the issues found in his favor; that the plaintiff was entitled to costs of issues found in his favor ; but as to tho question of the costs of the prppeut motion, his Honor took time to considey. The other .oapqa on the )igt were postponed till Monday.