COURT OF APPEAL.

New Zealand Times, Volume XXIX, Issue 4270, 26 November 1874, Page 2

COURT OF APPEAL.

Tuesday, 2-Itu November. (Before their Honors Mr. Justice Gresson, Mr. Justice Richmond, and Mr. Justice Chapman.) The case of the Otago and Southland Investment Company, Limited, appellants, against Arthur John Burns, respondent, was further heard. Mr. Smith and Mr. Stout appeared for the appellants, and Mr. George Cook for the respondent. Mr. Smith ; As to estoppel, he relied on the case of Barrs v. Jackson, 1 Phill., 582. The decision of the Lord Chancellor is strongly in favor of the appellants. Mr. Justice Richmond : Did the finding relied on as an estoppel appear in the record of the Ecclesiastical Court ? Mr. Smith : That is of no moment, as it is reduced to a question of evidence. The plea in this case was one in confession and avoidance ; and there is no difference in principle between proceedings in a Supreme Court and in an inferior court. The question is, how can they bo proved, by records or by oral evidence ? In the case of Barra v. Jackson it was not essentially necessary to decide who was next of kin; the Court might have granted administration to a stranger. The ratio decidendi of Lord Lyndhurst ought to be the governing principle in this case. As to the proceedings in the Magistrate’s Court being differently conducted, and as to the admission of evidence being more lax than in a Supreme Court, that did not prevent judgment being estoppel. The two cases relied on in the Court below wore Sopwith v. Sopwith, 30 L.J.; 1 Matr. 131, and Stoate v. Stoate, 30 L.J., Matr. 103. Mr. Justice Richmond ; I am pressed by the fact that equity and good conscience lie at the root of the magistrate’s jurisdiction. Mr, Smith : If that be an objection, no judgment could ever be an estoppel, even in the same subject matter. There is provision for appeal in questions of law. Besides, it appears from the evidence set out in the rejoinder, that the magistrate admitted no evidence that would not have been admissible in the Supreme Court; and that his judgment was good in law, also appears! There'are other points in the case, but these are of less moment. As to the granting loaVe to plead the replication, and the former order by consent being binding, Wentworth v. Bullen, 9 B. and 0. 240 ; Wade v. Simeons, 14 L.J,, Exch. 117 ; Pierce v. Chaplin, 9 Q. 8., 802 ; Hayward v. Duff, 12 0.8.,

N.S., 164. As to action being brought without plaintiff’s authority, no issue put to jury to that effect. The respondent’s rule ought to be discharged with costs, judgment given for the appellants on the demurrers, and leave given to enter verdict for £225. Mr. Stout followed on the same side. There were three points to which he would refer. Ist. As to estoppel in similar actions between same parties. 2nd. As to evidence of the estoppel 3rd. As to the jurisdiction of the Magistrate’s Court. There is_ estoppel between parties whenever a point in a case becomes the “pivot", of the cause, and is decided. That point cannot be re-litigated —Bigelow on Estoppel, 94, 95, 101, 102,108, where various English cases are referred to. Boileau v. Rutland, 2 Exch., is also strongly in favor of this contention. Also Hewlett v. Tarte, 10 C. 8., N.S. 813. Hobbs v. Henning, 17 C. 8., N.S., 791, is not an authority against appellants. The question that was relied on as an estoppel did not appear in the judgment, and was not otherwise proved. The question, then, in this case was, was this point decided material ? It was the whole gist of the defence, and it ought not to be re-litigated. Other defences might be set up, but this fact found by the magistrate that there was no election of dissatisfaction with securities during currency of bill ought to be an estoppel. As to evidence—that was clearly proved and expressly found by jury. And even in a case of estoppel on same subject matter the judgment of the magistrate would have to be proved orally. There is no provision in the Magistrates Act for keeping records, and the judgment need not appear in writing. As to jurisdiction, no amount was decided by the magistrate save a sum of £75. The estoppel relied on is not a decision as to any amount, nor does it bind the respondent to pay the £75 quarterly during all the five years. There may be other defences that would relieve him from liability. Even if Brown v. White, 2 A.J.E., were good law, the magistrate had jurisdiction. English cases show ratio decidendi in cases where greater amounts coming. incidentally in question. Walesby v. Goulston, L.R., 1 C.P., 567. As to hardship of estoppel, the hardships were on the appellants, as they might have ninetee i Appeal Court cases before they got their interest, if litigation on this one point was never to cease. The decision nemo debet hit vexari pro eadem causa would then be inapplicable to all proceedings in a Magistrate’s Court. As to Sopwith v. Sopwith, and Stoate v. Stoate, there statutory prohibition, same as in Comyn’s Digest, Tit.,Ev. p. 36. No provision for interrogatories, discovery, or foreign commissions in Magistrates’ Courts, hence rules of evidence must be relaxed in order to get justice administered. There is a prohibition in the Magistrates Act against parties suing in the Supreme Court when the amount is within the jurisdiction of the magistrate, as costs are not allowed in such a case. Would it be any answer for a plaintiff to say, “ I came into the Supreme Court, as a magistrate’s judgment was not an estoppel.” The Court then adjourned until next day.