SUPREME COURT.

Globe, Volume XXII, Issue 2035, 1 September 1880, Page 3

SUPREME COURT.

SITTING IN CHAMBERS. Tuesday, August 31. [Before His Honor Mr Justice Johnston,j His Honor sat in Chambers at II a.m. WADDELL T GAMACK. In this case Mr Harper applied for an order calling upon the Resident Magistrate of Temuka to show causa why further proceedings should not he stayed. His Honor made the order. BE S. SIMPSON. Mr Joynt applied herein for the discharge of the bankrupt. His Honor made the order. BELL T BBOWN. In this case the trial by special jury was fixed for October 14th. WILSON T DANN. The trial of this ease was fixed to take place on October 15th, at Christchurch, by special jury, BE PETITION OP JANE CAEOLINE DUDLEY. Mr Harper applied for an order settling and approving a deed of extension of lease from fifty to ninety-nine years. His Honor made the order as prayed. EH JAMES OBTLE3. Mr McConncl applied herein for the discharge of the debtor. His Honor made the order as prayed. HODINOTT Y BABBETT. Mr McConnel applied herein for settlement of issues and fixing time and place of trial. The plaintiff sued the defendant, who was the contractor for the tramway down Colombo street, for damages sustained by him by reason of the defendant leaving open a certain trench in Colombo street, whereby the plaintiff received certain injuries. Mr McConnel for the plaintiff. Mr Joynt for the defendant. The issues as proposed were settled, and the trial of the case fixed for Monday, October Hth, by a common jury. WILSON Y DEAPBB, CHAETEBS AND CO. Mr Holmes applied for an order settling issues and fixing time and place of trial. Mr McConnel applied for an adjournment of this case, as the issues had not been served within the time of the rules. His Honor granted a week’s further time for settlement of issues hefora tho Registrar, as asked by Mr McConnel. EH EOBBBT MOUNSKY, DECEASED. Mr Joyce applied for probate heroin to G. E. Milner, M. Hall, and Fanny Mounaey, as executors and executrix named. His Honor made the order, BE HENEY DODD. Mr Joyce applied herein for tho discharge of the debtor. His Honor made the order. EE FBEDEBICK I'EIPCE. On the application of Mr Turnbull, hie Honor made the order of discharge herein. BE LAND TBANBPEB ACT AND EB MOETGAGE TO TIMABU BUILDING SOCIETY. Mr Bruges applied herein for a summons calling upon James Lamsdoa to show cause why the mortgagee should not enter into possession of certain lands, on the ground of default. His Honor granted a summons as prayed, returnable within fourteen days after service. EB M. K. BABUSE, DECEASED. Mr George Harper applied for probate herein to the executors named in the will. His Honor made tho order. BE BILLS OP SALE ACT AND EE MCCONXIN V BAUNDEES AND HENDEESON. In this case Mr Bruges had obtained a rule nisi calling upon William Saunders and James Henderson to show cause why a certain bill of sale given by McOonkin to them should not ho declared fully satisfied. Mr Bruges now appeared to ask that tbf

order should be made absolute against both, -with costs as against Saunders only. There was no appearance of either Saunders or Henderson, and His Honor made the order os prayed, satisfaction to be made by Saunders, costa to be paid by Saunders alone. SB ALPEBD joblin, deceased. A renewal order of probate was granted herein, on the application of Mr Garrick. BE JAMES CLEPHANE PATON, DECEASED. Mr Stringer applied for probate heroin to the executors named in the will. YODSO t hill AND ANOTHEB. The issues in this case were settled by conaent and the trial filed by special jury (for defendants) for October 21st. SITTINGS IN BANCO. MCLEAN T OSTLEB. In this case, which was a suit to decide which of two execution creditors wore entitled to possession, His Honor gave judgment, that the New Zealand Loan and Mercantile Company were in bona jide possession at the time of the seizure by the execution creditor, and that their occupation was hostile to ]the execution creditor. The j udgment would therefore be for the plaintiff. Mr Joynt applied for costs on behalf of the Sheriff of Timaru, who had brought this matter before the Court on an interpleader motion. His Honor said that this was a very important question of practice, and he thought perhaps it had better stand over till he had an opportunity of consulting his brother judges. He would reserve the question of the sheriff’s costs of interpleader rule. WILSON Y MOBBOW AND ANOTHEB. In this case the minutes of the decree made were settled by consent. Mr Garrick for plaintiff. Mr G. Harper for defendants. IODGH (APPELLANT) T. EBDOB (EBSPONDENT.) This was a case on appeal from the decision of the Resident Magistrate at Timaru as to a breach of the building by-law. Dr. Foster appeared for the appellant, and in support of the appeal. Mr Garrick for tho respondent.^ The respondent was charged in the Court below for having erected a building within the inner area of the borough of Timaru, contrary to the provisions of the by-laws of the Borough of Timaru. On the hearing of the case the Resident Magistrate dismissed it on the ground that the evidence given in the case showed that tho building was not erected on the sections stated in the information. Dr. Foster now submitted to the Court that the case was so stated by the Resident Magistrate that it did not show what were the reasons on which the Magistrate dismissed the case, and that really the Supreme Court could not decide it. _ The by-law spoken of was not incorporated in the case. His Honor said that he could not decide upon the matter with the case as before him now. _ Dr. Foster read an affidavit setting out that the Magistrate in the Court below had dismissed the information on the _ ground _of variance as shown in evidence, the information being for the erection of the building on sections 16 and 17, whereas tho evidence showed it was on section 15.

Hia Honor pointed out that the Magistrate stated that he had dismissed the case as the outer wall was not the permanent outer wall, but that the building was intended to be further extended so that the then outer wall would become the inner wall. Under these circumstances there was held that no breach of the by-law had taken place. Dr. Foster said they were in this position — that the Magistrate had declined to amend his case by putting in the by-law. Mr Garrick said he would admit the by-law, which would get over all the difficulty. The by-laws of the Borough of Timaru were then put in and admitted. Dr. Foster raised the’ point whether the Resident Magistrate could act as two justices in anything but civil business. His Honor said that the very essence of the existence of a Resident Magistrate was his power to act alone in oases which required two Justices of the Peace to sit. eeotion 6,'Resident Magistrates Act.] Dr. Foster submitted that the Resident Magistrates Act only referred to civil business. He had taken care always in cases he might have that the Resident Magistrate should be accompanied by another Justice. The objection he took referring to this case was that the special case had been heard by the Resident Magistrate only, whereas the atatuto said that it should be heard by two Justices of the Fence.

His Honor pointed out that the Act uaid that the Resident Magistrate had conferred on him the power to do all that two Justices of the Peace might do, and also that of any Police Magistrate. Dr. Foster would submit that from end to end the Act had reference to civil matters, and it was scarcely contendable that they should go outside the purview of the Act, and say that one of the clauses could be strained to mean reference to criminal business.

His Honor said that there could be no doubt that every Resident Magistrate sitting alone had the power of two justices. All the forms were in the alternative, two Justices of the Peace or 8 Resident Magistrate, and there could be no doubt that_ the tatter possessed all the powers of two Justices, Dr. Poster submitted that the very clause which gave jurisdiction to the Magistrate’s Court contemplated civil business only. His Honor thought Dr, Foster had confounded the Resident Magistrate’s Court and the Resident Magistrate. There was, he thought, no doubt that the Resident Magistrate for cases where it was necessary possessed all the powers of two Justices, but still the construction of the clause was arguable. He would point out that if there was anything in this point, Dr. Foster was out of Court, as the Resident Magistrate had no jurisdiction. Dr. Foster then quoted from the by-laws, and sec. 181 of the Municipal Corporations Act, 1867, to show that there was a penalty of £lO per diem for non-compliance with the building regulations. He submitted that for thirteen months the external wall had been allowed to remain unfinished, and the decision of the Magistrate that the building did not come within the scope of the by-law was an evasion of the by-law. His Honor thought that the decision of the magistrate, as to the external wall, was a very sensible one indeed. He had decided that this wall was bona fide intended to be an internal wall. Dr. Foster thought that some time should be fixed when a building should bo completed. It had already been thirteen months in course of completion, and whilst admitting the reasonableness of a man having time to complete his house, ho submitted that thirteen months was beyond a reasonable time for the wall to be considered an internal wall. His Honor enquired what had prevented the appellant from laying a fresh information, maling it consonant with the evidence as to the number of the section, &c. Dr. Foster said he was not aware.

Hr Garrick said that the information alleged that the external walla of the building were bo constructed as against the by-law, and that it was so continued unlawfully constructed. He should submit that under section 192 of the Municipal Corporation Act no penally should be inflicted by a regulation. Then again, they were charged with a breach of part 2 of schedule 13 ; but there was no evidence that this was in force, nor was there any adoption by the Council under clause 191 of the part of the schedule, hence they had no power under it, and no offence had been committed. Even admitting that this was a by-law, it stated no offence, and provided no penalty. Again, there was a variance in the information, as there it was stated that the building was on sections 16 and 17, whereas the evidence proved it was on either 15 or 18. His Honor thought that as the case was remitted to the Magistrate for amendment he should have amended it. After some further argument. His Honor dismissed the appeal. BHAYIBK V. MOBBIB. Mr Spackman showed cause to a rule nisi for prohibition heroin, on the ground that the question tried in the court below was a question of title. He submitted that it was not a question of title, and hence a prohibition would not lie. Mr M'Oonnel appeared in support of the rule. His Honor said that this was not a question of disputed title, as the defendant had voluntarily divested himself of the legal estate in favor of the plaintiff. Therefore there could be no prohibition, because there was no dispute of title. For these reasons the rule would he discharged. Mr Spackman applied for costs. His Honor granted the application and made the order, discharging the rale with costs. Th* Court then rose.