APPEAL COURT.

New Zealand Times, Volume XXXIII, Issue 5354, 25 May 1878, Page 3

APPEAL COURT.

Thursday, Mat 23. (Before their Honors the Chief Justice, Mr. Justice Richmond, Mr. Justice Gillies, and Mr. Justice Williams). GALLOWAY V. GALLOWAY^ The Attorney-General (Mr. Stout) asked the direction of the Court under the following circumstances :—Galloway v. Galloway came before the Court of Appeal at the last sittings, and was dismissed, with costs. Application was made tie the Registrar hero to tax the costs, but he' declined to do so, alleging that the Court had ordered the Registrar at Dunedin to tax. Application was made to the Registrar in Dunedin, but he said he had no order of the Court, and declined to tax, as the other aide objected. Consequently up to the present time the respondent had been unable to have the coats taxed at all. Counsel had been instructed by the solicitors for the respondent to bring the matter before the Court of Appeal. (An affidavit set out the facts). The question was really one of practice; and the Registrars of both Courts having practically declined to tax the costs, he brought the matter before the Court. ■ , It appeared that no order had been made that the Registrar at Dunedin should tax the costs, but the Registrar here-stated that it Had been so agreed. ; The Chief Justice said : The Court is of opinion that it is the duty of the officer of this Court to tax the coats in this case, i (Mr. Justice Williams left the bench.) BARTON V. • ALLAN. ■ An appeal from a judgment of Mr. Justioe William?, Dunedin. . The Attorney-General for the appellant said the case was an appeal from the Supreme Court, and the more important point to be decided was whether a Resident Magistrate had power to nonsuit for part of a claim. There was a suit in the Magistrate's Court, Dunedin, on. practically, two bills of costs. There was a bill for £2O 18s. 10d., costs of proceedings up to a certain date ; and there was a' second amount, £6l 55., being the total costs of the proceedings ; the latter bill including the amount of the previous one, but the larger bill was unsigned by the solicitor. The magistrate gave judgment for £2O 18s. 10d., the amount of the signed bill, and nonsuited the plaintiff as to the rest of his claim. The amount of the judgment was paid by the respondent in December, 1876, andin January the balance was sued for. The respondent’s solicitor objected that the matter was res judicata, and that a magistrate could not nonsuit as to part of a claim. An appeal was made to Judge Williams, who decided that the plaintiff having taken judgment for part he could not sue for the balance. The Attorney- General submitted there were two points in the case, first as to splitting a demand, and the second as to the power of a Resident Magistrate to nonsuit. During argument learned counsel cited the following cases Homing v. Wilton, 50. and p. 54 ; Ellis v. Fleming, It. R., 1 C. P. Div. 237 ; Vines v, Arnold, 0. B. 632 ; Btancliffe v. Clarke, 21 It. J., Ex. 129 ; Davis' County Court Pr., p.p. 30 and 32, Judgment was reserved. The Court adjourned to Tuesday, at 11 o'clock. SPENCE V. PEABSON. CALDEK V. DUPE. It was agreed to take argument in these cases together. The Attorney-General for the appellant and Mr. Izard for -the respondent in each case. Both, matters had been removed to the Court of Appeal from the Supreme Court. In Spence v. Pearson, application had been made to the Supreme Court for leave to appeal to the ..Privy Council, and also for leave to plead. The Supreme Court ; Judges at Dunedin, in chambers, held that they had no jurisdiction to grant leave to appeal to the Priyy Council, as the matter had-been before the Court of Appeal for the colony. Tn Caldef v. Duff, an application had been made by summons to the Supreme Court for a stay of proceedings in order, to allow an appeal to the Privy Council. It came on for argument before Mr. Justice Johnston and Mr. Justice Williams, who decided that they could not stay proceedings ; that they had only a ministerial function to perform, namely, to carry out the: judgment of the Appeal Court. In Spence v. Pearson, a like summons was taken out, but was) adjourned,'and, never came on for argument. Application was now made to the Court of Appeal for a stay of proceedings. The Attorney-General submitted that this being the Court that pronounced judgment from which an appeal was to bo made , to the Appellate Court, it, was the Court that ought to stay further proceedings until the appellant had time to apply 1 to the Appellate Court by petition for : leave to appeal. He also submitted that ’Oalder r. Duff was a case in which a stay of proceedings would be granted. In Spence v. Pearson the same arguments applied. Further, as there was only ‘an interlocutory order, it might be distinguishable from Oalder y. Duff, in which there was a final 1 decree. It was under the provisions’of sections 18, 19, 20, and 21’ of the Court of . Appeal' Act that these cases were removed into the Court of Appeal. A case being removed into the Court of Apposd under section 21, the Court was practically. seized of it,, and if there was an appeal against its, decision to the Appellate Court at Home, that Court would certify its decision to the Appeal, Court. That ; showed that the Court of Appeal was the Court that at present had the disposal of the ease, Judge Gillies :, Was not. the whole case sent back to the Supreme Court to deal with in accordance with the decision of this Court? This Court had given its certificate, and was no longer seized of the case. The Attorney-General: If the.PrivylCouncil gave leave to appeal it would at once send its decision , to ,the Appeal,.Court here. The proper interpretation of section 21 was that wherever aa appeal was pending the Appeal

Court was seized of the case until the appellate tribunal had been exhausted. If there was an appeal direct from the Supreme Court to the Privy Council it would be different. Judge Gillies : If the Court of Appeal had given leave to appeal to the Privy Council, it would stay proceedings and would not issue a certificate to the Supremo Court. The Attorney-Goneral ; The practice was to give the certificate, because the party who got leave to appeal might not avail himself of it. Judge Richmond : After the Appeal Court had certified its decision to the Supreme Court, where must the next step in the proceedings be taken ? The Attorney-General : The case being finally disposed of by the tribunals of this colony, and there being no appeal to a higher appellate Court, the Supreme Court must then act. Judge Eichmond : As soon as a certificate was issued by the Court of Appeal the Supremo Court was re-seized, and it would therefore be the proper Court for a person to ask to stay proceedings. The Attorney-General: If there was no appeal. Yes. Judge Eichmond : The question arose whether, this stay of proceedings being with a view to an appeal, it made any difference. In Spence v. Pearson no judgment was given by the Court of Appeal, but a mere expression of opinion. Any parties desiring to prevent judgment being entered up ought, he thought, have applied to the Supreme Court. The Attorney-General: Suppose a party chose not to take further proceedings here, but went, to the Privy Council by petition, and obtained leave to appeal, and that the opinion of the Appeal Court was upset, to whom would' the Registrar of the Privy Council send its opinion ?—To the Registrar of this Court. Judge Richmond : If the Registrar sent his opinion to the Court of Appeal it would of course be instantly transmitted to the Supreme Court. The Attorney-General: Another point was that a certificate of the Court of Appeal was not in the nature of a judgment—it was only a method of informing the inferior tribunal of the opinion of the Appeal Court. Judge Richmond: The next step sought to bo prevented was entering up judgment in the Supreme Court. The Attorney-General; That was so. Judge Richmond: It was an anomalous thing at first sight that the Supreme Court should as it were be allowing an appeal from the Court of Appeal. The anomaly existed in virtue of the peculiar language of section 21.' The peculiarity of these cases was that the statute said that, the decision should be quasi the decision of the Supreme Court. No doubt what counsel contended for was the normal state of things. When a superior Court became seized of a matter, it was the proper tribunal to apply to for a stay of proceedings. The Attorney-General cited- Burdick v. Garrett, 39, L.J.n.s., Oh. 621. The case of Galloway v. Mayor and Citizens of Loudon, 11 Jurist, N.s., 137, quoted by the other side, did not apply. As to these, being propercases for an appeal to the Erivy Council learned counsel cited Tulch v. Metropolitan Railway and Warehouse Company, 40, L.J., Ch. 498. The Chief Justice: We all think, Mr. At-torney-General, that each case is a fit one for air appeal. The Attorney-General would sajr nothing further upon that point, - He submitted-that this must be held to be the Court seized of the case, and that was the proper interpretation to place upon the Court of Appeal Act, and of the last Order in Council which contemplated appeals from the Court of Appeal. There were two Orders in Council—one of 1860 and one of 1871. The former was prior to the Appeal Court Act beiug passed, and gave leave to appeal direct to her Majesty ; that order had ceased to be operative, but the order of 1871 was still in force. Counsel cited Williams’ case, 37, L.T., 173. He finally übmitted that a stay of proceedings should he ordered in each case, and that coats should be costs in the cause., \ Mr. Izard said there were two points necessary for discussion: The first was, whether the Court had jurisdiction in the matter ; and, secondly, whether, if the Court had jurisdiction, these were cases in which it would order a stay of proceedings. He submitted that the Court of Appeal had ceased to be seized of the cases. The provisions of the Court of Appeal Act, section 21, clearly put the other side out of Court. They ought to have gone to the Supreme Court, but they chose to come to the Court, of nntod-H bo o^cr-' cisewhat he might term an original jurisdiction. If they had met with a refusal in the Supreme Court, they might then have come to the Court of Appeal. It was clear, from. section 21, that the other side could not get the remedy now sought to bo obtained from the Court of Appeal His friend had contended that the Court of Appeal would have jurisdiction, because any order of the Privy Council would be made to the Court of Appeal, and not to the Supreme Court ; but in such a case the functions of the Appeal Court would be merely ministerial, and not of a judicial character. When this Court had once given its decision it had exercised all the judicial functions vested in it, which ceased when the case left the Court. He contended that Murdiok v. Garrett did not apply, as it was not parallel to the cases before the Court. Counsel then cited Wilburn v. Ingleby, X M. and K., 83. The authorities showed that if a party wanted to stay proceedings the time to. apply for such relief was when leave to appeal was asked. The application could not now be made in this Court, andi,whether it could be made somewhere else was not at present material. The Court reserved its judgment.