SUPREME COURT.

Evening Star, Issue 3854, 1 July 1875, Page 2

SUPREME COURT.

IN BANCO. Thursday, July 1. (Before Mr Justice Johnston.) IiONOUST v. Kingswell —This case, an application for a rule nisi for a new trial, was part heard on Tuesday last, and was continued this morning. Plaintiff had claimed damages on account of injury to his property through defendant’s • having, by fellmongery works, polluted a stream running through it. The case was heard by Judge Chapman at Invercargill, and judgment given for defendant. On Tuesday Mr Macassey applied for the rule on the ground _ that the verdict was against the evidence, and also on that of misdirection by the learned Judge. This morning Mr Macassey objected to tbe jurisdiction of Judge Chapman at Invercargill through his improper appointment as temporary Judge, and cited the cases Lismore v. Beadle, 11 L.J., Q. 8., 153, and Andrews v. Elliott, 25 L.J., Q. 8., 1, in support of his argument, His_ Honor thought the appointment was made in accordance with tbe Act of 1866, which provided that a temporary Judge appointed during the illness or absence of any Judge should have all the powers of a Judge of the Supreme Court. Mr Macassey urged that Judge Chapman’s commission was faulty, inasmuch as it gave more than the Act intended. If a temporary Judge be appointed he must be so with all judicial powers and functions, and it would not be right to appoint one with limited powers. His Honor said if counsel were correct in h's contention that Judge Chapman’s temporary appointment was invalid, the result would be a great failing of justice. What about all the people who were tried by Judge Chapman at Invercargill ? That raised a question of immense importance, Mr Macassey also urged that Judge Chapman had ‘not certified under the Resident Magistrate’s Court or District Court Act. H s Honor said he was of opinion that no rule for a new trial should be granted. On the first contention (brought forward on the first day’s hearing of this application), that the verdict was against the evidence, he had the assurance of the learned Judge (Chapman), before whom the case was tried, that it was sufficient, and was therefore satisfied with the verdict. As to the ground of misdirection, he had the learned Judge’s notes, and he was of opinion that these showed that the jury understood that if they were to find a verdict affirming a right to claim damages they would find that the water was impaired by the pollution so as to render it unfit for domestic purposes. Then came the important point raised of the learned Judge’s jurisdiction—a point involving consequences of a very serious nature, but which ought not to prevent the Court from granting the rule nisi applied for if the grounds were found sufficient. The argument deserved attention, for it was ingenious, and made with a show of reason. While the mode of proceeding with regard to tbe learned Judge’s appointment might hare been more free from objection than the commission showed, still it appeared to him (bis Honor) that the commission set forth that the.Governor had under the Act of 1858, appointed Mr Chapman to be a Judge of the Supreme Court, during his Excellency’s pleasure, for the temporary exercising the judicial functions of a Judge relating to a certain indicated sitting—viz., at Invercargill. Ho was, therefore, of opinion that the jurisdiction did actually exist, and felt bound to refuse the rule nisi, but, at the same time, would grant leave to appeal on the point of the learned Judge’s commission. As to the alternative plea, a rule as asked for would be granted, subject to the application being amended so as to read as follows A rule calling upon the plaintiff to show cause why the costs should not be disallowed.

Mr Macassey accordingly amended the plea, and the rule, as applied for, was granted. Re James Macintosh and the Southland Waste Land Board. —Appeal from a decision of the Southland Waste Land Board upon application by James Macintosh on July 29, 1874, for the purchase of three blocks of land in Oreti Hundred, containing together 12,260 acres. This application the Board had refused and had minuted the decision in these terms: — ‘ ‘ The application is refused on the grounds that the reserve is legal as made by the Superintendent ; that granting it would injuriously affect the value of the remaining lands of the Province ; and that, in consequence of the prevailing idea that the land in question was legally reserved, many persons who would have applied for the said land did not do so.” The questions now submitted for the decision of the Court were;—(l.) Were the blocks of land applied for by the appellant legally reserved from sale by the Superintendent? (2.) Are the second and third reasons alleged by the Board for refusing the appellant’s application valid reasons within the meaning of the 29th section of the Southland Waste Lands Act, 1867? Mr Macassey, with him Mr Haggitt, appeared for appellant; Mr Barton, with him Mr Stout, for the Southland Waste Land Board.—Mr Macassey opened the case at yesterday’s sitting of the Court, and this morning continued his case. [Left sitting.]