SUPREME COURT.

Evening Star, Issue 4197, 9 August 1876, Page 2

SUPREME COURT.

in Banco.

Wednesday, Avgust 9. (Be r oro Lis Honor Judge Williams )

His Honor delivered judgment in the following cases

In re the Sew Zealand Submarine Gold-mining Compan* Limits*.— This was ft rule calling on the onicUU liquidator of the company to show cause why an order of the Supreme Court directing the company to be wound up should not be sot aside, together with all subsequent proceedings. The rule was argued mainly on the ground that this Court had no jurisdiction to make such au order. His Honor said that the question herein, as to whbthev the company wn« carrying on business on the goldfields or In Dunedin, was discussed, but m eit her event he was satisfied that a District Court existed having jurisdiction in each place, and it was immaterial t-.> decide in which of these Courts the proceedings should have been taken. It was s fflclent for the consideration of the rule that under the Act this Court h«d no jurisdiction to entertain the petition, but that the proceedings should have been taken in tome District Court. If there is no intendment in favor of the jurisdiction, and the proceedings can be impeached collaterally, then it follows that the proceedings are assimilated to the proceedings in inferior courts, aLd the rule that c nsent cannot give jurisdiction would apply equally, lu the present case the proceedings show that the Court w~s not acting by virtue of its general jurisdi(T. ion as a Court of Equity. The company was the cnatureof the statute, uud the statute gave this Supreme Court jurisdiction only in certain circumstances. It did not appear in the petition or the order or in auy part of these proceedings that these circumstances existed, and it was now shown that they had no existence. The Court had, therefore, no jurisdiction to enter on tho matter, aud the winding-up order aud subsequent proceedings would be set aside, but without costs. Clarke v. Egberts.—Eule made absolute, without costs.

Webb v. the National Bank or New Zealand. ■“ 1 his Was ft rule calling on the plaintiff to show cause why judgment should not be arrested ou the ground that the declaration < oes not disclose any right of notion vested in the paiutiff; or why a new tr.al should u t be granted ou the ground that •ho verdict was against th • weight of evidence. His Honor held tiiidfir the first pfound that, nlihough the right to sue for the trespass to the clit’tt. Is did not pass by the vesting order, yet the right to suo for the injury to the leasehold might have passed since it was a right 6t action cfiUpled With actual possession, and on an assignment .of the leasehold hy deed a valid agreement could have been made to give the benefit of the right of action to the assignee. If that holding were correct some of the counts of the deciftfalloh are bad, while the count for trespass to the land is good. In such a case, when the damages are genera*, judgment was not arrested, but a trial de novo was awarded, although the rule asked for a arrest of judgment (Leachv. Thomas, 2 Meeaon aud Welsby 427). Eule made absolute for a trial de novo ou the first branch, each party to be >r his own costs to the first trial. As to the costs of the niie the dciehdaMß had chosen to reverse the usual order, aud instead of asking for a new trial, or f iili ig that for judgment to be arrested hod aslel for the arrest of judgment, and failing that for a new trial. He (the learned judge) considered the form of the rule was wrong and doubted if the defendant liaa failed on the first branch whether he could bare succeeded on the second, however strong a case he had, as by moving first in arrest of judgment be admitted the verdict to be good. (Philpot v. Pago, 4 B and C, 160.) Eule made absolute without Ct&tS.

Howorth t. Malaghan AKl> Another.— ln this case the plaintiff made an assignment by deed of all his pr perty to the defendants, as trustees, for the benefit of Ills Creditors. The declaration Set ont the deed, and alleged that defendant had misappropriated the trust property ftud neglected to carry out the trust. The declaration prayed for a relief generally. Thereto the nef*3adttyte pleaded two pleas, first denying the misappropriation ; and, Second, alleging that the deed was filed in the District Coflf tof the Otago Goldfields, under part 18 of the Bankruptcy Aot, 1867, that a declaration of complete execution was made by such Court, and that, therefore, this Court ojtglit liot to exercise jurisdiction in the matter.— His Honor held that the fair and reasonable construction of the plea was that it alleged only that the District Coiift exercised jurisdiction and not ! that the matter was onfl oter which it could properly exercise jurisdiction, and that for this reason the plea was bad and the demurrer must be allowed. Seihurrer allowed with coats. Bde't AfriJ AnoTBEh t. Vincent and Another. —This was a r- la calling Upon plaintiff and the Judge of the District Court, Dunedin, to show cause why a writ of prohibition should not issue inconsequence of a summ us, under whichjudgment Was obtained, not being dated.—His Honor determined that the defendants' remedy was to apply to the District Court Under section S3 of the Act to set aside the judgment. Buie discharged with costs. Glassford v.-Reid. —In this case the rule was made absolute to enter judgment for plaintiff, the question of golds being reserved. Sir Sinclair gave notice of appeal. M'Beide v. Beooden And Another.— This was an application for a role to show cause why a nonsuit should not be entered in pursuance of leave t served for trial. The case was beard at the July sift hgs of the Supreme Court, and the j ry awarded Ij3oo damages to the plaintiff, who was injured when travelling llpott A line of railway (theMoeraki line) in course of construction by the defendants. Mr Haggitt moved for the rule off the following grounds First, that the plaintiff was in the employment. of defendants at the time he sustained the injuries in tbs declaration mentioned, and that the injuries were occasioned by an accident consequent upon ordinary risk incident to the employment in which plaintiff was engaged, fthd that there WM no personal neglect or interference on the part of ibe.defendants ; second, there was no evidence that tho injuries were caused by the negligence of auy person for whoso acts or defaults the defendants were responsible ; third, assuming there was some evidence of neglect, then the only persons whose neglect could have caused or in any way conduced to the injuries sustained by plaintiff were his fellow servants engaged with plaintiff iu the course of common employment, and there was no evidence of auy neglect on the part of the defendants in the employment of anv fellow-servant of the plaintiff. He farther asked for a rule to show cause why a verdict should not be entered for the defendants pursuant also to leave reserved at the trial on Iho same grounds as those already mentioned. Also, as a sepnrato ground, that the finding of the jury to issues 2, 3, 4, 5, and 6a entitled defendants to have a Verdict entered for them.

After hearing Ur at considerable length, bis Honor granted u rule nisi.

[Lsft silting.]