SUPREME COURT—IN BANCO.

New Zealand Times, Volume XXXIII, Issue 5257, 29 January 1878, Page 2

SUPREME COURT—IN BANCO.

Monday, January 28. (Before his Honor Chief Justice Prendergast and Mr. Justice Richmond.) WALLACE V. CRAWFORD. Mr. J. H. Wallace appeared before the Court on his own behalf and applied that a certificate of costs be granted him in the action recently tried in this Court. He proceeded to read a documentary statement in support of his application. Mi. Justice Richmond expressed his opinion than the Court in banco had nothing to do with the matter. The general rale was that the Court in banco had no jurisdiction to review the decisions of the Judge of Circuit Court. There was a preliminary difficulty. The Chief Justice expressed a similar opinion, Mr. Wallace : It is the construction which can be put upon the Act that affords me reason to appear before your Honors now to ask for this rale. The Chief Justice : It is not incumbent to apply immediately after the trial. You can apply at any time after. Mr. Justice Richmond ; You must show that the Court has some power in the matter. Mr. Wallace : Will you allow me to proceed with my argument ? I think I can convince your honors. Mr. Justice Richmond : A preliminary difficulty stands in the way. We cannot go into the case until satisfied that the Court has jurisdiction. The Court in banco cannot certify. The case might be re-argued before the Chief Justice upon fresh material, but I do not think the Judge should let the matter he argued before him on the same material. Mr. Wallace submitted th as he was not allowed to have the case tried in the Resident Magistrate’s Court he was entitled to costs. Mr. Justice Richmond : We are now refusing your rale. Mr. Wallace : But your honors are refusing my rule without having heard my argument. Am I to understand from your honors that I cannot proceed with this argument ? Mr. Justice Richmond : The Court is clearly of opinion that it cannot adjudicate. Mr. Barton asked to be allowed to point out to their honors, as amicus curice, that they not only had jurisdiction but ought to hear the application. The Court decided that it had no jurisdiction. Mr. Wallace : Can I reserve my right ? Mr. Justice Richmond : Any rights you possess as a British subject you sit down preserving them intact. Mr. Wallace then withdrew. GILLON V. MACDONALD AND OTHERS. Mr. Barton, on behalf of plaintiff in this case, applied for an injunction to restrain the defendants from interfering with ■ plaintiff in the exercise, of his rights in the sale of the plant and goodwill of the Evening Argus newspaper. He moved for the injunction on the finding of a jury. An affidavit was filed verifying the declaration. There was also an affidavit showing that Mr. Gillon had been violently refused his rights. Mr. Ollivier, who appeared for the defendants, took a preliminary objection to the lastmentioned affidavit, on the grounds that the rules of the Court, which required it to he made in the first person, had been transgressed, the affidavit having been made in the third person. Mr. Barton characterised it as disgraceful that such ridiculous points should be raised. It was making crochets with a vengeance. Mr. Ollivier agreed to withdraw the objection. Mr. Barton said there had never been a dissolution of the Argus partnership, and Gillon had been kept out of all share in the management, and he had suffered a great loss in consequence. He (Mr. Barton) had applied ex parte to the Chief Justice for au injunction, and it had been refused. He could not get his application heard. The Chief Justice said he was very grossly in error, or was making mis-statements. Mr. Ollivier said the relief sought for was entirely of a subsidiary character. The Chief Justice inquired if there was no course by which the parties could come to au arrangement ? Mr. Ollivier said he would be prepared to show that plaintiff was not entitled to any relief at all. The position, he submitted, must be that the hill be dismissed, with costs. They (defendants) would be prepared afterwards to come to an arrangement with the adverse party, hut would prevent the plaintiff getting the bill first and then coming to au arrangement. He did not see any reasons for coming to an amicable settlement, but there were strong reasons why the rule should not be granted. If he meant to exercise his rights as a partner all the others would work against him. If he wrote a leader, the printer, who was a partner, would exercise his right and keep it out. Plaintiff was only editor subject to tile approval of the other partners, and as to being responsible editor, that merely meant that he was responsible to the others. If Gillon resumed the editorship, the Argus would again change its front in public affairs, and all these repeated changes tended to depreciate its value as a paying concern. Counsel further submitted that plaintiff was not engaged for five years, and he had himself admitted 0 that he could be dismissed at any moment. By the writing of a libel he had inju ed the other co partners, aud they were asked to put him in a position in which he might write any number of libels immediately. Assuming that plaintiff was a man of straw, he need not fear any civil prosecution. Mid might seriously damage the paper and his copartners by manufacturing libels. His conduct since his claim was heard before a jury bristled with impropriety. He had gone vi et armis to the newspaper office, in the middle of litigation, and conducted himself in a most improper manner. Mr. Ollivier went on to argue whether he had not parted with his rights in this suit by the document which he had executed with McKirdy. Plaintiff’s claim was merely for an interim injunction. It was only relief, which was purely subsidiary to the main relief sought by the cause. It was quite clear that all the partneis must he joined if there was to he a dissolution of partnership aud decree for a sale, and Mr. Joseph Saunders, one of the partners, was not joined. Mr. Barton submitted that the question whether Mr. Joseph Saunders was a partner formed the substance of one of the issues put to the jury when the case was tried before, aud that issue was struck out on the pleadings by the consent of both sides. If he was to be defeated on such a point as that ho would at once walk out of Court. , The Chief Justice ; Will you ait down, Mr. Barton. Mr. Barton; Not till I have done your Honor. The Chief Justice : You are interfering with the proceedings of the Court ; will you sit down ? Mr. Barton said he would sit down if his Honor would be good enough to hear him. He asked that the question he decided by referring to his Honor's notes as to whether it

was not admitted on the former trial by both aides that Joseph Saunders was a partner. If his learned friend were now allowed to argue that point, he (Mr. Barton) would give up the whole matter, and he respectfully submitted that he would do it. He declined to fight the case of a client any longer while such a thing was allowed. He would not condescend to argue the case on such terms, but would let Mr. Gillon get on as best he could. Mr. Barton then gathered his papers together and left the Court. Mr. Ollivier went on to contend that his objection was absolutely fatal to plaintiff’s .case, which would have to be dismissed for want of parties. In support of his argument he cited the case of Hill and Nash, mentioned in Phillips’s Reperts. He further argued that it had not been alleged that the partnership concerned could not be just as well managed in its present bonds until a final decree was sought, therefore it might be left to the defendants to continue to manage the concern until the time fixed by the Court for a dissolution aud sale. At the conclusion of Mr. Ollivier’s argument the case was adjourned until Wednesday morning. The Court rose at five o’clock.