COURT OF APPEAL.

New Zealand Times, Volume XXIX, Issue 4272, 28 November 1874, Page 3

COURT OF APPEAL.

Thursday, 26th November. (Before their Honors Mr. Justice Gresson, Mr. Justice Kichmond, and Mr. Justice Chapman.) THE OTAGO AND SOUTHLAND INVESTMENT COMJ, I-A NY, LIMITED, APPELLANTS, AGAINST ARTHUR BURNS, RESPONDENT. This case was further heard, Mr. Smith and Mr. Stout appearing for the appellants, and Mr. George Cook for the respondent, Mr. Cook continued his arguments in reference to jurisdiction. If, in a case in a Magistrate’s Court for an amount under a deed, the amount being within its jurisdiction, the plea of non esU factum was pleaded, then if the magistrate determined the plea this decision of his would not bo binding as an estoppel it it thereby decided any liability under the deed that exceeded his jurisdiction ; and to an action on the deed, this decision could not be pleaded as an estoppel in the Supreme Court, though it might be so pleaded in a Magistrate’s Court. Again, the same rule should be applied to judgments of inferior courts as was applied to those of foreign courts. The latter, if erroneous on their face, would bo questioned. Messina v. Petrocoino, 41 L.J., B.C. 27. Lastly, in this case it was apparent on the face of the magistrate’s reasons for his judgment that the question of election was not properly decided. Mr. Smith, in reply, said Mr. Cook had confused questions raised in third replication with those pleaded in the rejoinders. The whole questions the Court was concerned with appeared in the third replication and in the second plea. As to questioning the magistrate’s judgment, that did not arise except in rejoinders. Mr. Justice Kichmond ■ I don’t see that the cases cited by Mr. Cook as to foreign judgments go so far as to say tbat wo can question the magistrate’s decision on the merits. In cases cited error was apparent on the face of the proceedings. Mr. Smith : Still, it may be important to look at the facts in their different aspects.^ Mr. Justice Kichmond : We are of opinion that the judgment itself is not impeachable on ground of error. Here there was no record. Mr. Smith : I shall then deal with the question of estoppel. Mr. Cook had stated six requisites, and we are quite willing to accept them. The object of the two actions need not be the same. The doctrine contendedj for could be summed up in the following proposition ;—“ Whenever a matter of fact had once been litigated between the.parties, and that fact was material to the action in winch it was litigated, then the decision or determination of that fact was an estoppel on the parties to the action and their privies.” The annotator in Smith’s Leading Cases had narrowed the doctrine of estoppel, and the quotation of the

Vice-Chancellor’s decision had raised a difficulty in applying the principle laid down by Lord Lyndhurst. The judgment of Lord Lyndhurst put tho doctrine on its proper footing. Mr. Justice Richmond ; The Lord Chancellor puts it that he is concluded by authority. Mr. Smith quoted Judge Chapman’s judgment in Court below. There the doctrine is still further limited. Broadly put, tho principle was, onco a fact is decided inter partes by litigation it is always decided. Mr. Justice Richmond : Is there any distinction between a judgment in rem and being also one of a court of exclusive jurisdiction ? Mr. Smith ; There is no such distinction if once tho fact is found. A judgment in rem was conclusive on strangers, but a fact decided in a judgment between parties was just as decisive as one determined by a court in passing a judgment in rem. Mr. Justice Richmond : Macintosh v. Smith, i Macq., cited in Bigelow, p. 91, seems to draw such a distinction. Mr. Smith : In Smith’s Leading Cases, pp. 663, 664, 665, no such distinction is drawn. The fact of the point having been decided by a court of exclusive jurisdiction is of no moment. That is plain by Barrs v. Jaokson. The point there decided and relied on as an estoppel might have been decided by the Court of Chancery as well as by the Ecclesiastical Court. So in Spencer v. Spencer and Williams, 4188 L. J., Prob. 8, p. 47. The test is, was the point material, and was it expressly decided by a court competent to decide it. Mr. Justice Gresson; You put it that all the points in the chain of facts leading np to the ultimate decision, if found, can be used as. an estoppel. Mr. Smith: Yes; if found ex necessitate for the final judgment. In the present case, the point, was neither collateral nor incidental ; it was in effect the only point in controversy. It was the whole prop on which the respondent rested his case. It was not even a cardinal fact, but the cardinal fact. Hobbs v. Henning corrects the expressions of the Vice-Chancellor in Barrs v. Jackson. So in Regina v. Hartiugton, the mere fact that settlement of children adjudged to be in Hartington Middle Quarter, drew along with it the facts that led to the estoppel in the second case. First, he settlement of the father; second, his lawful marriage; and third, the settlement of his wife. It was therefore a necessary inference rather than a fact found. Mr. Justice Chapman : Still it must be an inference that would lead to an irrefragable conclusion. It must be incapable of a contrary inference. Mr. Smith: I admit that, but if the decision of the Vice-Chancellor be taken without limitation, it would not lead to that conclusion. Mr. Justice Richmond mentioned Newells v. Eliott, 32 L, J. Exch. 620. Mr. Smith : A clear distinction between that case and present,-as there point not expressly found. Then as to jurisdiction. The findings of the Resident Magistrate could be proved orally. Taylor on Evidence, p. 1346. Brown v. White not in accord with English cases. There the claim originally within jurisdiction, and the raising of the defence did not necessarily oust the jurisdiction. In cases where a question of title raised, then as soon as that becomes a question in dispute no jurisdiction (see section 19). This case, however, does not come within that class of cases. If Legislature' had intended when questions of amount came collaterally in question, that there should be no jurisdiction, then it would have so enacted. If has made such a provision when questions of title, &c., are involved, and Expressio unites exclasio alterius. Besides; here the magistrate decided no amount. All that the magistrate’s decision predicates is that a certain defence is bad, not that any sum other than that claimed was due or might be due. Mr. Justice Richmond ; Did not magistrate necessarily decide a liability for a further amount ?

Mr. Smith : Not at all, as there was only one fact—that of election —found, and that fact we contend cannot be again litigated. Suppose a case of a lease for thirty years at a rent of £5 per year, and a surrender by operation of law be pleaded, could it be said a magistrate had no jurisdiction, because if he negatived this surrender the lessee might become liable for £l5O. Or take another illustration : A sues B for assault, claiming £5 damages, and B pleads son assault demesne, stating that he intends to sue in a superior courtjfor £2OOO damages, —could the magistrates not decide this trumpery action of assault ? 1 Would it avail for B to say—But if magistrate decides against me I will lose my claim for £2OOO. Mr. Justice Richmond : There the amount would be unliquidated. * Mr. Smith : The case cited, Moses v. Macfarlau, 2 Burr., 1009., has been overruled., Mr. Justice Richmond : Still the dictum of Lord Mansfield at page 1009 is good law. Mr. Smith : That dictum is not against appellants, as they have no transaction involving any amount. It is only the barest possibility that the estoppel may prevent the respondent getting rid of his liability. There may be other defences. Lastly, estoppel is of as much importance to Magistrates’ Courts as to Supreme Courts. Section 33 of the Resident Magistrates Act shows Legislature intended that Magistrates’ Courts, where amounts within jurisdiction, should have the same power of giving final judgments, and that their decrees should be as final and binding as the Supreme Court. The Court took time to consider its judgment, and adjourned till next day.