SUPREME COURT, NELSON.

Grey River Argus, Volume XII, Issue 1241, 22 July 1872, Page 3

SUPREME COURT, NELSON.

(Before his Honor Judge Richmond.) Monday, July 15. KBKKIOK V. JOYCE, (itf CHAMBERS.) Return of Summons to shew cause why a Writ of Prohibition in the action of Kenrick v. Joyce should not issue. Mr Guinness and Mr A. Adams, in sup* S)rt; Mr A. Pitt, instructed by Mr ewton, to shew cause. Mr Guinness applied for leave to use affidavits filed in support of summons, after issue of same. Mr Pitt objected, and urged that the summons in the present case stood on the same ground as a Rule nisi, inasmuch as it was made a stay of proceedings, and the applicant must stand or fall by the case disclosed. He might hare applied to the Court or a Judge ; and, because he chose the latter, he must not be allowed loose practice or to surprise the other side. He cited the cases of Owyn v. Evans, 12 L. J., p. 68 ; Begina v. Host Lancashire Railway Co., 9 Q. 8,, p. 980 ; Lower Wairau Election case, and Monro v. Luckit and another, lately decided at Nelson. circumstances of the case and the difficulty of communication ; that the copies of affidavits were served on the other Bide immediately they *vere sworn ; that there was, in fact, no surprise, and that cases cited by Mr Pitt-only referred to Rules of Court. He also contended that strict Rules of Court at home would not apply in the present case. He referred his Honor to Rule 490 of the Supreme Court Rules* His Honor said : Rule 490 does not apply. It only means that in moving for a rule nisi, you need not have previously filed your affidavits. I am always most loth to exclude evidence bearing upon matters in question, but the objection to the use of the additional affidavits- is insisted on, and 1 am asked to rule on it. I am bound to base my ruling on the practice and rules of the Court. It seems to me that the affidavits sought to be used are relied on mainly or exclusively for two points : Ist, That the Warden's Court was held sitting outside of the Gold Fields ; 2nd, That the proceedings below were entitled in no hmpn. Court. Neither of these points was raised in the summons, nor in the affidavit upon which It was granted, even though construed most leniently ; nor are they points of a character such as I ought to favor. I allow ten days for a parly fromjthe West Coast to appear on summons ; and, by analogy, I think affidavits ought to be furnished ten days before the date when the summons is returnable. One at least of the affidavits is not within this rule. I shall deal with this application on the merits. The affidavits sought to be used appear to introduce new matter and new objections. 1 think, therefore, that I shall be doing no substantial injustice by excluding them. I must consequently refuse the application. Mr Pitt raised preliminary objections. Ist. That the summons was entitled in the wrong district; 2nd. That it does not set out the grounds as required by Rule 602, S.O.R. Mr Guinness, in reply, stated as to the first objection that it was not necessary to entitle the proceedings in any matter. A Judge of the Supreme Court had power anywhere within the Colony. His Honor : But in this case I am, in fact, applied to as Judge of the Westland District. A Judge certainly, though sitting without his district. Las jurisdiction over matters arising within the district, but it is a question whether the judge of

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the Nelson District, tpu* saoh judge, could prohibit the Warden of a Court nrt within the district. Mr Guinness asked his Honor to amei id the title of the summons. His Honor : Under what power t Mr Guinness: Under the general powßr to amend. . '- His Honor : The Judges at home, wlO had the Bam c power, refused to exercise it in the oases cited. -■'■ £ Mr Guinness : As to omission jof (trounds in summons he contended that . I. 502 merely required the purpose fpr which the summons was obtained, and that it was not necessary to state the grounds. i Mr Pitt replied. He held the objections were not answered. Although the Judge of Nelson and Westland Districts happened to be the same in this instance, t did not alter 'the case. * , His Honor : Rule 502, looking at the example therein given, seems really jto mean that not only the purpose but the grounds should be specified. It is not very logically worded. This is the practice, and a very proper practice it is. I shall deal with the first objection, though narrow, as being the clearer point^to decide on, although the other is an objection of a more substantial character. I think the objection mast prevail. The summons is wrongly entitled. The application shonld have been made in the Westland District, within the limits of which the Court below sat. Applications such as the present must be dealt with on a strict basis. The snmmons must be dismissed. Mr Pitt asked for costs which were ordered. Mr Guinnes3 applied for leave under Rule 498 to apply again under the special circumstances of the case. He urged the special circumstances of the case, the disv tance of parties, and the difficulty of access to the Qoverwment Gazette. He also contended that the error in the present case was not a substantial defect, and cited —Jackson v. Beaumont, 24 L.J., Ex Meardo v. Maidenhead Local Board, 27 L. J., M.C. p. 73; Denton v. Marshall and others, 32 L.J., &c , His Honor : I shall not call on Mr Pitt to reply. I see the difficulties of distance and communication under which the one party^ labors, but I also see the hardship of preventing the other party from enjoying the fruits of his action — of dashing the cup from his lips by prohibition. The case appears to me to have been dealt with on the merits in the Court below. The Judge of the District Court could haA c ordered a re-hearing if he had thought substantial justice' had not been done between the parties. I do not think 1 ought to grant this application.^ The case resolves itself into the technical point that the Court,. below which tried it had no jurisdiction. This objection is not token till some months afterwards. Taking, all this into consideration, I do not think this is a case for renewed application, consequently no leavo is given under Rule 498. . Mr Guinness, on the question of. costs, drew the attention of his Honor; to the highly technical objection on which the sumtnons'was dismissed. His Honor : Although I decided on the narrow objection as to the title of the summons^ the other objection was more substantial I object to constantly making special cases as to costs. This is a case where the costs, should follow the event. The party who succeeds is therefore entitled to costs. . '