SUPREME COURT—IN BANCO.
Saturday, May 25. (Before their Honors the Chief Justice and Mr. Justice Richmond.) JOSEPH AND ANOTHER V. PETERS. In this case a rule nisi in arrest of judgment had been granted on the 29th March. Mr. Travers for plaintiffs; no appearance for the defendant. Mr. Travers submitted that it would be necessary for the other side to move the rule absolute, and he apprehended he was not called npon to show cause until that was done. It was an important point of practice whether the non-appearance of a person to support a rule, there being counsel to oppose it, was not practically a waiver of the rule or an abandonment of it.
Judge Richmond : The practice was for counsel who obtained the rule to rise and move it absolute, and the counsel on the other ride addressed the Court. Mr. Travers submitted that counsel could not ho called upon to oppose a rule if there was uo one present to sxxpport it. The mover of a rule must be in Court, and move it absolute, before cause was shown. As thei-e was no one present to support the rule, he had a right to ask that it be discharged. Judge Richmond said it would bo very xxnratisfactory to himself, independent of the question of practice, to make the rule absolute, without fxirther aud better reasons for doing so than ho had heard. He had felt it, as a Judge ‘.(ten did, his duty to grant the rule nisi, but it would be very unsatisfactory, looking at the substance of the matter, that the rule should lie made absolute without further argument in support of it. The only chance would be if he heard coxxnsel’s argument against it, the Court might get some reason for. sxxpporting it. That sometimes happened. Mr Travers ; Jxxst so, your Honor. The Chief Justice : "What do you contend for ?
Mr Travers : As there is no one to move the rule absolute it must be discharged. The Chief Justice : We think it must be so. Rifle discharged. CIUOX T. MACDONALD AND OTHERS.
The Chief Justice : In this case it is Mr. Barton's application on behalf of the plaintiff. Mr. 01Uvier,who appeared for the defendant, t-aid—l feel bound to state to the Court, that Mr. Barton intimated to me, some two or three days ago, that he would probably be leaving 'fur Napier before this motion could come on, and he also intimated that he would give me notice before bringing the motion on ; he apparently being xmder the impression that it rested witn him to move at any convenient sitting day. I have since heard that Mr. Barton has gone to Napier. The Chief Justice.: Do I understand that under the circumstances you do not make any objection to the case standing over ? Mr. OUivier : No, your Honor. I make no objection. I received an intimation from one i f the officers of the Court that the motion ivould come .on .for hearing, and of course I attended.
The Chief Justice: The day was fixed by 'Mr. Barton’s desire ; not a special day, but the earliest day. Judge Richmond; It will stand thus : there will be no order made, and Mr. Barton will give yon fresh notice. Mr. OUivier: If the Court thought fit it could strike the matter out of the list, leaving it to the parties to give fresh notice. Ido not ask for anything, but leave it your Honors to deal with the matter as you thiuk fit. The Chief Justice; You do not suggest any time. lor brother Kichmond will have to go to Napier, and the other to Blenheim. Mr. Ollivier ; I would naturally prefer that ihe Court should strike it out of the list, as it would relieve me from a pending motion, but 1 do not ask for anything under the circumvtanoes.
The Chief Justice ; Court will sit again on Tuesday week. , The case was adjourned to 4th: Jupe, and lire Court then adjourned.
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New Zealand Times, Volume XXXIII, Issue 5355, 27 May 1878, Page 3
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667SUPREME COURT—IN BANCO. New Zealand Times, Volume XXXIII, Issue 5355, 27 May 1878, Page 3
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