THE APPEAL COURT OF NEW ZEALAND.

New Zealand Times, Volume XXIX, Issue 4283, 11 December 1874, Page 2

THE APPEAL COURT OF NEW ZEALAND.

(Before their Honors Mr, Justice Johnston, Mr. Justice Richmond, and Mr. Justico Chapman). BOSTON AND OTHERS Y. HOWE AND OTHERS. In this case the Court ruled that it would be for the Court, considering the importance of the interests involved, to give judgment at present, and that except a special sittingwas fixed judgment could not be delivered until the Appeal Court met in May. Both sides consented to one Judge, should the others be absent, giving judgment in May for the, others. RECEIVER OP LAND REVENUE, * SOUTHLAND, APPELLANT, AND THE QUEEN (Ex parte BELL) RESPONDENT. lii this case judgment was given for the appellant ; the judgment in the Court below being reversed, with costs. Heave to appeal was given to the respondent. W© shall in a future issue publish the judgment. HOKITIKA AND GREYMOUTH TRAMWAY COMPANY, APPELLANTS AND THE COUNTY COUNCIL OF WESTLAND, RESPONDENTS. In tins case judgment was given for the respondents, with costs. The judgment will be published in a future issue. CASHMORE V. HANEY AND ANOTHER. In this case judgment was arrested, but .■without costs. The costa of the issues of fact only being allowed. RE DONOGHUE.

This was a special case, stated by Hia Honor Mr. Justice Chapman for the opinion of the Court of Appeal. Hr. Honoghue applied for a mandamus against the Governor to compel him to give his consent, under the second section of the Crown Redress Act, 1871, to his bringing an action for services rendered. The questions were whether a mandamus could issue against the Governor, and, second, whether, if it could, he could be compelled to give his consent under the Crown Redress Act, 1871, to the doctor -commencing an action against the Queen. No counsel were heard. Mr. Justice Johnston said he did not think the Court had any power to issue a mandamus against the Governor. It would be a mere hrutum ftdmen, as obedience to it could not bo compelled by attachment. Then, again, the section of the Act evidently contemplated a discretion being exercised. His Honor commented on various cases referred to in the case, and said that the rule was properly refused. Mr. Justice Richmond concurred. Mr. Justice Chapman, after referring to Mortyn v. Rabrigues, and other cases, said that on both grounds he was of opinion that no mandamus could be issued. The Court then adjourned sine die. The following are among the judgments delivered by the Court. We may state that though Mr. Justice Johnston was present at the delivery of these judgments he was not a party to them, having been sitting in the ViceAdmiralty Court. Tiie judgments are those of Mr. Justice Gresson, Mr. Justice Richmond, and Mr. Justice Chapman. OTAGO AND SOUTHLAND INVESTMENT COMPANY (LIMITED), APPELLANTS, AND ARTHUR JOHN BURNS, RESPONDENT. —JUDGMENT. This is an action for interest, for three quarters of a year ending September 30,1872, on a sum of £3OOO, lent by the appellants (plaintiffs below) to the respondent. The respondent relics on the defence, that the agreement under which interest was payable was determined by the refusal of the appellants to accept certain mortgage security offered by him to them in pursuance of the agreement sued upon. This defence is set up by the 2nd pica, and with a slight variation, by the 3rd plea also. Its sufficiency in law has not been questioned. But the appellants by their 3rd and 6th replications set forth, os matter of estoppel, by reason whereof the respondent ought not to be admitted to plead the defence in question, that the same identical defence was ineffectually set up by the respondent to an action by the appellants in the Court of the Resident Magistrate; in which action the appellants recovered the interest for one quarter ending Slst December, 1871, accruing under the agreement now sued upon. The main question for our decision is, whether the Resident Magistrate’s determination of the first action, involving, as it actually did, the rejection of the same defence as is now pleaded, is conclusive between the parties to this appeal of the matter of fact in dispute, viz., the refusal by the appellants of the offered security. In deciding this question in the Supreme Court, the learned Judge relied upon the distinction between matters incidentally decided by the magistrate “ on his road towards his final decision,” and the proper purpose and final object of that decision ; holding the latter only to bo conclusive in another suit between the same parties.

Xlic case lias been elaborately argued before us r but it may be disposed of upon a very Simula and obvious ground. The jurisdiction of the Resident Magistrate s Court is limited to claims of £IOO • whilst the amount demanded in the present action is £225. Every argument which tends to show that the judgment of the Resident Magistrate’s Court if supposed to be valid, would be, directly or indirectly conclusive of the present litigation in the Supreme Court, Is, at the same time, an argument against the jurisdiction of the magistrate in the former action The argument for the estoppel is rcductio ad absurdain of the argument for the jurisdiction ; and vice versit The dilemma, which was pointed out by the learned Judge below, is perfect. Admit that there may be an estoppel, and it follows that the magistrate has probably—or, it is enough to say, possibly—decided on the defendant’s liability to an extent exceeding the extreme limit of his jurisdiction. The 3rd and Gth replications are therefore, on this supposition, bad. On the other hand, to deny the estoppel is of course equally fatal. It is in vain that the appellants attempt to escape from this difficulty by the argument that the Resident Magistrate’s decision has only estopped the defendant from setting up one particular defence. The answer is, that this defence may be the sole defence—the matter on which the whole controversy hinges. It is not requisite to show that the decision must of necessity involve the whole question of the defendant's liability under the agreement. To oust the jurisdicdiction, it is enough that it may do so. Such being, in our opinion, the condition of the appellants’ argument, it is, strictly, unnecessary for this Court to give any opinion on the question of estoppel apart from the question of jurisdiction. The appellants, to succeed, must establish both jurisdiction and estoppel; and these things are, in our judgment, incompatible. We think it, however, as well to state that, quite apart from any question of the limitation of the Resident Magistrate’s jurisdiction, the argument on behalf of the appellants has, in our opinion, failed to establish the existence of an estoppel. The superior Oowrto can talro nnf.ice Of nothing which has occurred in the course of litigation in me Reeident Magistrate’s Court but the actual judgment. This is, simply, the final, formal, decision of the Court, unexplained by the reasons of the Judge, that the appellants should recover the sum mentioned in their particulars of demand. To hold that parol evidence may be adduced to show that this or the other question has been incidentally raised and decided, would be to alter fundamentally the doctrine of estoppel by matter of record, and would open the way to doubtful controversies as to what may have occurred in the course of the vague and irregular proceedings of inferior courts. Of the final, formal decision itself, we do not doubt that the Court might receive, if necessary, parol evidence, in accordance with the case cited to us of Dyson v. Wood 3, B and C. 449. But that case is no authority for the admission of parol evidence as to the questions incidentallyraised in the inferior court, or as to the opinion formed upon such questions by the Judge. The judgment alone can be looked at; nor can anything be ground of estoppel which is mere matter of inference from it, and not strictly involved in it. Co. Litt. S2sb; Newall v. Elliott, 1 H. and C. 797; Regina v. Hartington, Middle Quarter, 4 Eli. and B. 7SO; Hewlett v. Tarte, 10 C. B. (n.s.), 813. The effect of a decision of the Resident Magistrate’s Court can be no greater in any case than that of a judgment by default in a superior court. Upon such a judgment, there is no foundation for an estoppel, as against the defendant, beyond the fact that the allegations of the declaration were unanswered, and that the plaintiff was allowed, without opposition, to recover his demand. .Accordingly, it has been expressly decided, in the case of Hewlett v. Tarte, just cited, that the estoppel in. the case of a judgment recovered by default in one of the superior Courts of Common Law, in an action upon a contract, does not extend beyond traversable matter contained in the declaration, and that a defendant is not, by the prior judgment, estopped from pleading matter in confession and avoidance. Now the pleas which it is here sought to shut out are in confession and avoidance; and, therefore, upon the authority of Hewlett v. Tarte are pleadable, notwithstanding the previous recovery upon the same contract. In Hewlett v. Tarte it was assumed, though not directly decided, that the defendant would be estopped by the previous recovery against him on the same contract from denying the original validity of the contract. The distinction is between matters of fact, the determination of which, or the assumption of which as true, must, ex necessitate rci, have been the basis of the former judgment, and matters of fact not necessarily involved in the decision, however material they may be in the actual course of litigation. The factum of the contract recovered upon belongs to the former class. The existence of a release, or other matter of discharge, such as is here pleaded, is a fact of the latter class. In the particular case before the magistrate it was, we assume, necessary to determine the alleged fact of the appellants’ refusal of the security so soon as that question was raised by an affirmative plea. But the fact was not necessarily in issue. The negation of the proposition was (as the appellants themselves contend) no essential part of the cause of action. The judgment, therefore, per sc, docs not Import that the question was raised and decided in the plaintiffs’ favor. It was, as held by the learned Judge below, a mere incidental question decided by the magistrate on bis way to the determination of the plaint, but not an essential part of that determination.

The dicta in Hewlett v. Tarte, we may add, though apparently warranted by Lord Coke’s authority, carry the law in favor of estoppel in such cases, at least as far as it ought to go. There is obvious danger in allowing the mere silence and inaction of a defendant to conclude him to such an extent; and the remarks of V. C. AVood on this subject, in Goucher v. Clayton, 34 L. J., Ch. 239, seem well worthy of consideration. All the cases relied upon by the appellants are distinguishable. In Outram v. Morcwood, 3 East 340, the defendants (husband and wife; the husband claiming Jure uo;or£«) were held to be estopped from again placing upon the record, as their defence, matter which had been already pleaded by the wife in a previous action between the same parties respecting the same property, and upon issue joined, solemnly found against her. All turned upon the conclusive effect of what Lord'Ellenborough called “a precise allegation, made in pleading on record, and tried and found between the parties.” Regina v. Hartington, 4 Ellis and Blackburn, 780, proceeded on the principle stated by the Court, “ that orders of removal, unappealed against, or confirmed on appeal, are conclusive evidence, not merely of the fact directly decided, but of those facts also which are mentioned in them, and necessary steps to the decision.” In the present case the judgment of the Resident Magistrate’s Court, as we can recognise it, is, as we have already said, simply an adjudication that the appellants should recover the sum mentioned in their particulars of demand. It can be evidence of no other fact than this ; or, at the utmost, of such facts as every judgment for the plaintiff of absolute necessity involves. Nor was the incidental question decided a necessary step to the decision, in the sense in which the Court of Queen’s Bench uses the term in the passage just cited. Barrs v. Jackson, before L. C. Lyndhurst, 1 Phillips 552, was decided purely upon the authority of Boucluer v. Taylor ; and alUrms no general principle inconsistent with the judgment in the Court below of V. C. Knight Bruce. In conjunction with the case of Spencer v. Spencer— (Law Rep. 2. Pro. and Mat. 230) — it establishes that there subsists a peculiar relation between the Courts of Chancery and Probate in regard to certain cognate subjects of their respective jurisdiction ; making their solemnly recorded determinations of such questions of consanguinity as arise in the exercise of these branches of jurisdiction mutually binding. AVith respect to the American authorities cited from the treatise of Mr. Bigelow on the Law of Estoppel, it is enough to observe, that the American Courts themselves are far from agreeing upon the principles of estoppel by matter of record, or quasi record. See the case King v. Chase, 15 N.H. 9, and other cases cited by Mr. Bigelow at page 94 of his work (edition of 1572). So fur as American cases diverge from English decisions, we are of course bound not to follow them. The comments of Mr. Bigelow himself on the case of King v. Chase (at p. 95) are inconsistent with English decisions. AVe remark that the judgment of A r .C. Knight Bruce in Barrs v. Jackson is not noticed by Mr. Bigelow; nor is that case even cited in his book. The conditions of an estoppel by adjudication in a former suit may be somewhat less strict, according to the law of England, than those laid down by the jurists cited by the learned Vice-Chancellor; but those conditions have never in England been relaxed to the extent authorised by some of the American decisions, and advocated by Mr. Bigelow. In other words, the re-agitation of a question, which has been raised and decided in a former action, appears to be more easily admitted in England than in America. The case of successive ejectments for the same estate, to try the same question, is a familiar instance of the extent to which the English law tolerates re-iterated litigation of the same matter, in cases where no specific decision appears on the record. In the lead ing case of the Earl of Bath v. Sherwin, 4 Brown’s P.C. 373, the single question of the legitimacy of the Duke of Albemarle was tried over and over again between the same parties in actions of ejectment for different parts of the same estate ; and the only remedy against this vexatious litigation was in chancery. 'Wo have not to choose between the merits of the English and American law ; but we would observe that there is a danger of too hastily concluding parties by the result of a single action, which is to be avoided equally with the danger of excessive litigation. The 3rd and sth replications being bad, the respondent (defendant below) must have Judgment on the demurrers to the 3rd, 4th, sth, 6th, Bth, 9th, 10th, and 11th reminders, being the rejoinders to two above mentioned replications. This decision disposes of the action ; all the issues of fact, except those raised on the allegations of the 3rd and sth replications, being found for the respondent. As to the cross rules nisi of the 11th March, 1874, and 25th March, 1874, disregarding for a moment the former part of the rule nisi of 11th March, they amount in substance to cross applications for leave to enter judgment upon the findings of the jury—these last being, as they always are in civil causes in this colony, equivalent to a special verdict. The rule of 14th May, 1874, makes absolute the respondent’s rule nisi for a new trial. This rule must be varied, and judgment be entered for the defendant below, with costs of the action, less such costs as the appellants may be entitled to upon the issues of fact found in their favor. As regards the rule of 4th November, 1874, discharging the appellants' rule nisi of 25th March, 1874, the appeal is dismissed. The respondent’s rule nisi of 11th March, 1574, was altogether misconceived in form ; and as to so much of it as asks for a rescission of the judge’s order of 10th October, 1873, wrong in substance, and not capable of being supported. The oases cited ou behalf the respondent, as to the rescission, proceed upon the ground that orders which are in the nature of a contract cannot bo rescinded without the consent of both parties. But the order of 13th Slay, 1873, was clearly not of this character. The consent of the respondent was not necessary to enable It to made ; nor did he give up anything. Though purporting to bo drawn iip by consent, that meant nothing more than that the application to withdraw the replications was unopposed. Not one of the non-suit points raised can, as such, be maintained; and there was no ground for a new* trial. Seeing that the respondent has asked for so much that he was not entitled to, we shall give no costs of that rule. Although the appeal against the judgment of the Supreme Court on the demurrers to the above mentioned rejoinders is dismissed, we are of opinion that

the costs of the sth, 6th, 10th, and 11th rejoinders ought to be disallowed. It was an abuse of the forms of the Court to put such pleadings on the record. As the respondent substantially succeeds, he must have the costs of the appeal —'disallowing all costs occasioned by the rejoinders just mentioned.

DODSON V. MACANDREW.—JUDGMENT, In this case wc are of opinion, on the 6th, 9th, and 12th grounds stated in the former part of the rule ■kw* obtained by the defendant, that a verdict must be entered for the defendant, or, to use language more in accordance with the rules of procedure, that, on these three grounds, the finding on the 4th issue must be entered in the negative. The like alteration must be made in the findings on the sth. 6th, 7th and Bth issues. Tins will, of course, entitle the defendant to judgment. , . , • . The Superintendent cannot have acquired an interest in the railway and its appurtenances otherwise than under the provisions of The Immigration and Public Works Act. 1572. It has been contended that a oiifisi leasehold interest has been created, which is “property belonging to the province/’ within the meaning of The Provincial Lawsuits Act, ISSS. But upon the largest interpretation in favor of claimants upon the provincial treasuries which can be given to that vague enactment, this case does not seem to us to come within it. There has, as yet, been no legal transfer to the Superintendent even of any power of management, much less of any estate and interest. The receipt of the rent of the refreshment room into the provincial treasury has been relied upon as creating a tenancy between the parties to this suit. We are of opinion that it cannot so operate, even by way of estoppel. It is fallacious to treat the Superintendent as capable of binding, in any way, the revenues of. the province by acts for which there is no legal warrant. Thera must be a rule absolute to enter the findings as above expressed ; and the defendant must have the costs of the rule.