SUPREME COURT.—IN BANCO.

Southland Times, Issue 1295, 19 August 1870, Page 3

SUPREME COURT.— IN BANCO.

' . » Dukbdik, WaomsSDAY, Axrav&v 10th. (Before his Honor Mr Justice Chapman.) O/Hiba. v. The Bakk of Otaso. — Mr Macav | gey appeared for the appellant!, who were the defendants in the Court below ; and Mr Stewart for the respondent, who was the plaintiff in the acMon. This was an appeal against a decision given m the Resident Magistrate's Court at Invereargill. The action was one for damages, raised by Cornelius O'Hara against the Bank of Otago. The declaration and pleadings showed that on the 9th March last the defendants commenced an action against the plaintiff in the Supreme Court, under the Summary Procedure on Bills Act, 1862, to recover tho sum of £37 13s Id, on a hill of exchange accepted by tlie plaintiff, together with £4 12» costs. On the 15t.h March, and before judgment was signed, O'Hara called upon the Bank's solicitor, Mr Harrey, and told the latter that he had come to pay the bill, bat would not pay the costs of the suit. Mr Harrey refuted the offer, and O'Hara then offered to pay half the costs, bat this was likewise refused. O'Hara, it appears, held the money in his hand, but did not show it to Mr Harrey. On the 25th March; Judgment was signed by defendants for £42 Ss Id, which included the £4 12s costs, O'Hara not having applied for leave to defend. A writ of fieri facuu was issued, and a lory made, whereupon O'Hara paid the debt and costs, but the latter, which then amounted to £10 9s, under protest. O'Hara then brought an action in the Resident Magistrate's Court to recover the amount so paid under protest, together with £85 damages. The Besident Magistrate, ia giving his decision, said the grounds of defence relied upon seemed to be— lst, that there was no legal tender erer made by O'Hara; and, 2nd, that the 28th clause of the Besident Magistrate's Act, 1867, does not apply to summary procedure on bills under the Act of 1862. The Magistrate decided that the 28th clause was so applicable. He had felt some doubt whether it applied to independent actions on bills, and the two Acts did appear to conflict, but in such a case the Sum* mary Procedure on Bills Act must prevail ; ani consequently held that in this case the .Bank was not entitled to any. costs, and that the tender of the amount of the bill without the costs was ■■ a . legal tender. Judgment was given for the plaintiff for the £10 9a costs paid under protest; £35, damages ; and £4 Is, costs of the suit ; altogether, £49 10s. The questions for the opinion of this Court were— lst, Was there a legal tender ? 2nd, Does the 28th clause of the Besident Magistrates Act, 1867, apply to actions under £100 under the Summary Procedure on Bills Act, 1862, whether defended or not ? 3rd, Was the Besident Magistrate's decision right, or if wrong, in what respect ? Sis Honor said it appeared to him that the action was defective on two grounds — that the first judgment was an estoppal, and must be got rid of before the aggrieved party could come to this Court} and secondly, that. the Magistrate had exceeded his jurisdiction. Mr Stewart said that he did not feel justified in arguing the question of estoppal. His Honor, in giving judgment, said he did not think that, upon the face of these proceedings, he was called upon to decide the question whether a good and sufficient tender had been made, or whether the 28th clause did or did not apply, to actions under £100, under the Summary Procedure on Bills Act, 1862, because he thought the judgment erroneous on two grounds. In the first place, the judgment of the Supreme Court, bo long as it remained unrepealed by the judgment of a Court of Error, or by the same Court upon motion, was an estoppal between the parties, and being so, he did cot think an action would lie on the ' subject matter in that Court ; and if it would not lie in that Court, & fortiori, it would not lie in an inferior Court; otherwise, it would be submitting the judgment of a superior Court to an inferior one. In the.second place, he thought the Magistrate had no jurisdiction. First of. all, there was .'the judgment of the Supreme . Court, If, upon the question of costs, the defendant had been dissatisfied with the entry of the judgment, he could have moved that the judgment should be set aside as to the question of costs, on the ground that there was no certificate of the judge to allow these costs, and that the Summary Procedure Act of 1862 was controlled, so far as costs were concerned, by the 28th section of the | Besident Magistrates Act of 1867 ; or, he apprehended that tho defendant might, if judgment had been signed, have proceeded by error ; or, if he had had time before judgment was signed, hare raised the question of costs in the Supreme Court by a rule calling upon the taxing officer and the other party to show cause why the allocation as to costs should not be reviewed. No coarse of the kind was taken, and the judgment remained } but the defendant, under the impression that he had been wronged as to costs, made what might be called for the present purpose, a tender of the amount of the debt without costs- That being refused, he proceeded to bring an action in the Besident Magistrate's Court for damages. Very properly a writ of execution had followed the judgment, and a levy had been made. If the judgment was right, the execution and levy were likewise proper ; and not within the jurisdiction of the Besident Magistrate to question. It was true the Magistrate did not formally review the judgment and set it aside ; but in giving the defendant the amount of the costs and damages, he did virtually set aside, or what amounted to the same thing, he ignored the judgment of that_ Courts JEhia__h<»— wao— uot—xwoiperanfTS"" So. Appeal allowed, with costs.