SUPREME COURT.

New Zealand Times, Volume XXX, Issue 4426, 27 May 1875, Page 3

SUPREME COURT.

IN BANCO.— Wednesday, May 2G. (Before Ilia Honor Mr. Justice Johnston.) His Honor took Ms seat on tho bench at 11 o'clock. EDUCATION BOARD V. HARRISON. This was a suit in which Mr. Buckley, acting for the trustees under the will of the late Dr. Kees, of Wanganui, applied to have the action dismissed for non-prosecution.

Tire action arose out of the following circumstances :— : The late Dr. Bees having bequeathed certain portions of his estate “to any educational establishment or hoard existing at the time of his death,” the property was claimed by the present Education Board, who brought an action to recover possession from the trustees—Mr. H. S. Harrison and another gentleman, since deceased. The surviving trustee put in certain pileadings, admitting the facts in plaintiffs declaration ; but averred that the property was also claimed by other persons, namely, the heir-at-law and the next of kin, whose names Were not disclosed. The action was begun on the 12th June, 1873, and the pleas were delivered on the 2nd September following. An order of the Court was then made, admitting the heir-at-law to he a defendant ( the trusts of the will were ordered to be established ; and the i-ights of all parties under the will were ordered to he ascertained and declared. No steps had been taken subsequently, either to make the heir-at-law a defendant, or to carry out the order of the Court.

Mr. Buckley, under these circumstances, applied to have the action dismissed in accordance with the terms of rule 108, which provides that a defendant may move to set aside an action unless the [plaintiff prosecutes his action within two months, or within such time as the Court may allow. Mr. Brandon, for the plaintiffs, explained that the special case, as required by the rules, was prepared and sent to the solicitor acting for the heir-at-law, who disputed some of the facts. He (Mr. Brandon) then pointed out that tho proper course would be for the solicitor for the heir-at-law to apply to the Court to rescind so much of the order as was objected to. Mr. Izard said he was acting for the heir-at-law, but the proper stops had not yet been taken to include him in the suit. Mr. Brandon said he had used every endeavor to push the case along, but bis efforts had been ineffectual. At the proper time he should move that the matter be referred to the Eemstrar, to ascertain who were the heir-at-law and the next of kin, for he confessed he had been unable to ascertain. His desire was to get a decree in tbe case. His Honor said Mr. Brandon could not get a decree until the heir-at-law and the next of kin were represented. Any decree which the Court issued under the present circumstances would he a decree saving the rights of tho heir and next of kin, and that, he presumed, was not quite the kind of thing Mr. Brandon required. Mr. Brandon : My sole object is to urge the case to a conclusion. His Honor : la there anything to prevent you putting the next of kin on the record ? Mr. Brandon : No, but it is for the next of kin to dispute the devise, and then he can be put on the record. . Mr. Buckley : But it is part of the order that there shall be two other parties to the suit besides the plaintiff.' Mr. Izard ; I have no locus standi until my friend makes me a party to the suit. • His Honor ; Just so. Tho order that it is for the plaintiff to make the heir-at-law a defendant.

Mr. Brandon : I maintain that wo have taken all tho necessary steps. Why should the solicitor for the heir-at-law say lie disputed the facts, unless he admitted himself to bo a defendant.

Mr. Izard; A special case was no doubt prepared, which was intended to ho a special case between the plaintiff in tho action and the heir-at-law ; but the facts could not ho agreed to, and it was pointed out that the next of kin were necessary as parties to the suit. Mr.. Buckley ; I know nothing whatever about tho special case, your Honor. It has never been shown to me.

His Honor ; That is changing your front altogether. Who was to state the special case ?

Mr- Buckley : I don’t know. Xam defendant. It is* not fox* me to state a special case. His Honor : Has no special case ever been submitted to you ? Mr. Buckley : Ho, your Honor. Mr. Brandon : The special case was submitted to the solicitor for the heir-at-law, and no sooner was it submitted than he said, “ Oh, we arc not going to admit these facts. Then I suggested that so much of the order should be repealed as referred to the facts objected to, so that we might get on. His Honor : What seems to me to be the net result of the whole thing is that in some shape or other the Court should order that a special case be stated by all parties interested ; failing such an agreement, that the action should be ordered to be proceeded with within a certain time, in accordance with the terms of rule 408.

Mr. Buckley : That will suit me, your Honor. It is in terms of that rule that I make my application. ' c Mr. Brandon : But we have got hold of defendants. The trustees are the defendants, and it is for them to find out who are the next of kin. . His Honor : Surely, in establishing a right against people interested in a matter like this you must sooner or later make every person a party to the suit against whose title you wish to be assured. Some further discussion ensued, upon the conclusion of which the Court granted a rule rescinding so much of the order of the 2nd of September, 1873, as ordered the preparation of a special case, and further ordered the heir-at-law do plead to the declaration within six weeks from this date ; in default of so doing, the plaintiff to be allowed to move for a decree against him, and that the action be dismissed if the plaintiff do not proceed further in the case within six weeks after such default or plea delivered by ,the heir-at-law. The costs of the application to be paid out of the estate.

Mr. Buckley considered that the costs of the motion should be paid by the plaintiffs, inasmuch as they had shown laches in not prosecuting the suit. His Honor was of opinion that the costs should come out ox the estate, and affirmed the order as made. GROVES V. SOMERVILLE. Mr. Travers applied for a rule nisi, calling upon the plaintiff to show cause why the appeal iu this case should not be dismissed, with costs, on the ground that no action had been taken to prosecute the ajipeal within the time stipulated by the rules. Eule nisi granted. IN THE MATTER OF THE CUSTODY OF RACHEL FOULKES AND JAMES FOULI^S. Mr. Travers moved for a wait of habeas corpus to be directed to Joseph Cross, of Wellington, builder, . and Mary Jane Foulkes, of Wellington, wife of Eobert Alfred Foulkes, calling upon them to bring up Eachael Halford Foulkes and James Foulkes, in order that they might be restored to the custody of. their father. Mr. Travers read an affidavit made by the father of the children, to the effect that he had endeavored to obtain possession of the children by peaceable means, but had failed in consequence of the threatened opposition and violence of Mrs. Foulkes and Cross. A case in 13 Common Bench, 680 (exparte Hiedrick Wietty),was quoted, to show the modern practice in such cases.

His Honor said he knew nothing at present as to the right of custody of -the children, except what was on the affidavit. Mr. Travers would, of course, at the proper time, fortify himself with authorities as to the right of the father to the custody of the children after great laches. The question might be raised whether the ordinary undoubted right of the father to the custody of his children after the iige of nurture would apply .in a case where a man had allowed his children for many years to be educated by the adulterer. He not mean to say that that would defeat his right, but as this was an application for a writ of habeas corpus , he must draw attention to this difficulty : that he would leave for Christchurch on Monday, and the Chief Justice would probably leave for Napier on Friday. Mr. Travers said there was no reason why the return should not take place to-morrow. Mr. Allan objected, that the parties should have time in such a case. It was by the merest accident that he knew anything of the present application, and he claimed that notice should be given. His Honor said it : was not likely a person would defeat his object by giving notice. Mr. Allan said there was, not the slightest reason to fear that the parties in this case would go away. Mr. Travers said it would probably be as well to issue the rule to show cause, and make it returnable on Friday. Mr. Allan said he should object to accept service, as he did not know where the parties lived,,and might have some difficulty in giving them timely notice. His Honor said the service must be personal. The Court had no power to substitute service in a case of this sort. ■, Mr. Travers said he did not think it was necessary to have personal service on a rule to show cause. His Honor said that if the habeas corpus required personal .service, he ; thought-service on the rule to show cause should also. The rule nisi was granted, cause to be shown on Saturday at eleven o’clock. V CALLAGHAN V. II'IIECKAN AND CO. Mr. Travers moved, with the consent of Mr. Izard (counsel for plaintiff), that the action be dismissed, plaintiff having failed to proceed within the period stipulated in the rules. Order made accordingly. Costs of the application to be defendants’ costs in the cause. WALKER V. THE GREYTOWN LOCAL BOARD. Mr. Allan applied that this case might be allowed to stand over, and intimated that the points involved were similar to those in Hawke v. Frethey, which had been decided by the Court of Appeal. Mr. Izard : Not entirely. Mr. Allan said he was not of course aware what point his learned friend intended to raise, but ho was not prepared to argue it, as the case was only set down three days ago. Mr. Izard said he desired that his Honor should hear the case if possible. A point would be raised which he must press upon the attention of the Court. His Honor said it was impossible that he could take the case, as if the point were at all an important one, he could not give judgment for a considerable time. He had looked through the case cursorily, and it struck him that it was disposed of by the argument before the Court of Appeal in Hawke v. Frethey. The case was ordered to stand over. DIVE V. E3PAONE. In this case his Honor said he had failed to perceive the point of the special cose submitted for the consideration of the Court, which he understood involved a question of law which the magistrate was unable to decide. He had transmitted the case'to the Resident Magistrate, to be informed what the point was that was reserved for the consideration of the Court, and was informed in reply that there was no law point reserved, His simple duty was therefore to dismiss the appeal, with costs. TRIBE V. WATT. His Honor, in delivering judgment in this case, said ; I somewhat regret that I acceded to the request of the parties in this case, and heard the argument in chambers a few days ago, because I think the law that is applicable to it, and the authorities quoted, are by no means clear in respect of their application to the pleadings and the findings. It may be a question whether it was a proper or an improper arrangement at the trial, that the only issues to be taken into consideration, and the only matters of fact to be determined upon by the jury, were those which are stated in what are called the amended issues and the answers to them. Tho first of them is—-“ Did the plaintiff enter into an agreement with tho defendant for his services on the newspaper, for which he was to receive a salary of £2OO per annum; and was it at the same time, or, if not, was it afterwards, agreed that in addition thereto ho should receive one-half of the net profits 1” The jury found that it' was so arn-eed, and that the agreement for the portion of the net profits was entered into at the same time as the other, The second question was—-

“If so, was the receipt, of the profits to depend upon the success of the paper ? To which the answer was—“ That the plaintiff was to receive half of any net The third question was—“ls there any evidence of such success?” The answer to that was—“ There is not sufficient evidence/’ Now, the matter was argued before me as if the only question which could be raised was, whether or not the facts so found constituted a partnership inter se between the plaintiff and the defendant, it being admitted by Mr. Travers that there might be sufficient to constitute a quasi partnership, or what is called a partnership as against third persons. But in attempting to apply the general rules and principles affecting partnerships of either kind, and to draw a distinction between partnerships where there is a stipulation for participation in gross profits and stipulations fornetprofits, I find that as this is a motion for a decree upon the record as it stands, I have to look to what extent the findings of the jury establish the case as alleged in the unamended declaration, and I cannot deal with this as upon a special case stated merely upon facts found by the jury ; but I must upon the whole look at the findings as' applied to the unamended pleadings, and then determine whether it is competent for me to give a decree in the exact terms of the prayer for relief, or in some alternative within its terms applicable to the facts as stated. Upon consideration of the pleadings, it seems to me that, in the first place, the alternative form of relief upon a count such as that mentioned iii the declaration could not be granted; for although it is competent under the general prayer for relief, or even under a specific prayer for relief, with a general alternative to give some kind of relief that is not expressly sought for, in all cases the relief ought to be such as can be given under the circumstances of the claim as made by the plaintiff in the declaration. It seems to me that the findings on the issues did not sufficiently correspond with the matters set up by the jdaintiff in his declaration, and negatived by the defendant, to enable me to grant a decree; and while it is admitted by Mr. Travers that an account ought to be given, upon the footing of the parties having made an agreement which might constitute them partners as regards third parties, yet he would not submit to a decree upon this declaration, framed as it is, based upon the findings of the jury; and I am obliged to come to the conclusion, looking at the averments in the declaration, that it is impossible for me to grant such a decree as would be consistent with that declaration, although I am not prepared to lay it down in point of law that there was not a partnersliip inter se under -the circumstances found by the jury. The declaration alleges that the plaintiff entered into partnership with the defendant in the business of printing and publishing of the Wanganui Chronicle newspaper, which also comprised the business of general printers and publishers, and the said business was and is still carried on upon the premises used for the printing and publishing of the said newspaper at Wanganui, iu the province of Wellington. That no deed or agreement in writing as to the terms of the said partnership was made ; but it was agreed between the parties “that each should be entitled to the co-partnership assets and the profits arising from the same, and should contribute to the losses thereof iu equal proportion.” That portion of the declaration is not established by the findings on the issues. The declaration proceeds : “ and that in addition to the participation in the profits, and subject to liability to losses, the plaintiff was to receive, in consideration of his services as editor and manager, the sum of £i per week out of the net profits, which said stipulation was to continue for three months.” Now, the finding of the jury -as to this portion of the agreement is certainly at variance with what is stated in the declaration. They found that the plaintiff was to receive a salary of £2OO a-year, and at the same time, in addition thereto, that he should receive half the net profits, and none other of the allegations respecting the partnership are established. It is not necessary, therefore, that I should go further into the statements in the declaration. I have come to the conclusion, upon the whole, that at all events without these pleadings being amended so as to make the .findings support the declaration, I cannot see my way to give the decree asked for, or any alternative relief based upon such a statement as that contained in the declaration.

. Decree refused; action dismissed, with costs. in the estate' of a. mcllins and son. Mr.' Travers moved, on behalf of the trustees, njion notice, for an order declaring the deed of assignment made on , the 19th April last to be an act of bankruptcy^ Mr. Buckley appeared to show cause. ■ His Houor held that inasmuch as it was a matter in bankruptcy) which should be dealt with under the ISth part of the Bankruptcy Act, the Court had no jurisdiction. The application would have to be made to the Court in its bankruptcy jurisdiction.

WHITLOOK V. PURCELL.

In this case Mr. Travers moved for a nonsuit and for a new trial upon certain grounds. His Honor said he only sat that day to clear off business remaining over from previous sittings, and to hear cases in which the Chief Justice had acted as counsel. He would therefore order the case to stand over. Mr. Travers said he had no intention of proceeding with the case. He only moved in accordance with the rule, this being the first practical sitting after the trial. GENERAL BUSINESS. The following cases were ordered to stand over: —McKenzie v. Hall and Hirst, Young v. Thomson, Rangitikei Highway Board v. Maunder, Millar v. the Corporation of Wanganui, Peat v. McKenzie, Hughes v. Ellis, Walker the Grey town Bocal Board, and Krull v. Knight. The Court then adjourned.