SUPREME COURT—IN BANCO.

New Zealand Times, Volume XXXIII, Issue 5347, 17 May 1878, Page 3

SUPREME COURT—IN BANCO.

Thursday, May 18. (Before their Honors'the Chief Justice and Mr. Justice Williams.) PETERS V, JOSEPH AND ANOTHER. The Court delivered judgment herein, making the rule absolute for the amendment of the order by the addition of the following .terms :—“ If the plaintiff shall take out of Court tho sum paid in satisfaction of tho claim in respect of which it is paid, ho shall bo entitled to such costs, up to the time of payment into Court, as he would have been entitled to if tho cause of action in respect to which the money was paid into Court were one not within the jurisdiction of tho Resident Mogiatrate’s Court.” Each,party to pay hia own co,sts of tho rule. Mr. Barton: I understand that the order is not amended except In this way: that if my client chooses to take £lO in full satisfaction of bis claim he is in the same position as if the Resident Magistrates Aot did not apply. Judge Williams: As if tho Resident'Magistrates Aot did not apply. Mr, Barton: Precisely. Of course, your Honor, the result will be this : if he gives up all claim be has upon the present defenddfits ha would get the costs in this action set off against the costs,of the other action. . 1 l s The Chief „ Justice : If you. wish to apply •to.the Court for/anything say so, but do not ‘state matters which' I say are controvertible altogether,—entirely controvertible, . . r Mr. Barton: I do not see how they can be. .' The'Ghief Justice : This has nothing to do with us.’ There is nothing at all. under our consideration now. | ‘"'Mr. ’ Barton ; 'Your Honor brought in a; matter of evidence at tho first trial as to which

I wish to say to your Honor you are entirely mistaken.

The Chief Justice : This is irregular. If you have any application to make for leave to appeal or anything else Mr. Barton: I am not going to trouble the Court of Appeal, with three Judges out of five against me. The Chief Justioe : Mr. Barton, you must not be irregular. If you have any desire to make a proper application for leave to appeal, or with reference to the terms of the rule, you can do so. Mr. Barton : I am not going to trouble your Honor about an appeal. Ido not wish to ask the two remaining Judges to upset the decision of three. The Chief Justice : We do not wish to hear your reasons, Mr. Barton. Mr. Barton : Instead of making this rule, compelling the plaintiff to make such a choice as this, would you allow the plaintiff to discontinue this action altogether, without costs against him ? If your Honor cannot do what I ask at the present time, grant me a rule nisi to show cause why the present action should not be discontinued without prejudice to the plaintiff’s right to a new action, and without costs, and why the costs of the first trial should not be awarded to him. That would settle the whole question. I cannot say he,will accept £lO in lieu of a claim he considers an honest one of £I2OO. The Chief Justice : That is a matter entirely , between the plaintiff and the defendant. £lO may be a very insufficient sum, but wo cannot say anything at all about it. , Mr., Barton : Or else there should be leave given to the plaintiff to amend his declaration by adding another count. ... The Chief Justice ; There is no doubt that an application may be made to amend the declaration. There is not the slightest difficulty about that. Mr. Barton : I submit that the Court having possession of the full material-, there would be no necessity for any motion in Chambers about it. Your Honor might make it part of the rule, and add a clause to the declaration “ for selling the goods under value.” The Chief Justice : I do not see my way to it at all. Ido not understand it at all. It is an unheard of application. I am * not refusing leave to amend ; I: am refusing leave to amend upon this application. It should bo made at a proper time and place. Mr. Barton : If I make an application in Chambers, it means more costs, more expense, more delay. Judge Williams :It is very simple. You can take out a summons to amend in Chambers, and specify exactly the amendment you wish to make. Mr. Barton ; I say it is for a sale for under value. As Judge Richmond has decided that such a count is necessary, I would put it in. ; The Chief Justice: This is not the time oi the occasion to make such an application. As to the other ' case,- Joseph and another v. 1 Peters, it is impossible for me to say when Judge Richmond will be here to take it. Mr. Barton : It is impossible for me to get to trial next sittings. The Chief Justice : I do not think you have any reason to’assume that at all. Judge Richmond is in Grey mouth, and the vessel cannot get out of the harbor. The Court then adjourned.