SUPREME COURT.

Tuapeka Times, Volume VII, Issue 357, 20 May 1874, Page 3

SUPREME COURT.

T-i'uUSDAY, Mat 14. [Before his Honor Mr. Justice CHAPMAN.]

WHITE V. M'KELLAH.

Mr. Barton morecl for a rale staying all actions a'ud proceedings. The terms of settlement were as follow : — lTiat defendants pay to pontiffs £5,000, with all costs incurred and to be incurved by plaintiffs in the several actions aud proceeding i'rom tbe commencement of tbe fivst action in 1856 to tbe present time, between attorney and client, and upon the deCcadants signing all documents necessary to plaint' Sis obtaining a lease of the run ; also that plaintiffs migbt lake all necessary orders from, tbe Court regarding the several taxations. Mr. Maca»sey, on behalf of defendants, consented. Rule granted. PRODUCTION OF TELEGRAMS. Mr. Haggitt said he was instructed to move for a ru'c nisi. His Honor : I would rather not have your application now. I have appointed to-day f o hear a particular motion. Mr. Smith explained that in regard to the order made by his Honor on March 13 to enable the plaintiff in Macassey v. Bell to inspect certain telegrams, and which ovder he appeared, with Mr. Stout, to move should be rescinded, he had learned from Mr. Haggitt that no cause would be shown. His Honor : I have been looking over the case, and I am convinced that the order granted by me on the 13th March was granted improvide. I ought not to have granted it on an ex parte motion. The order was itself too large, aud I have no hesitation in making Ibe rule absolute. Mr. Smith produced tbe affidavit of service of rule on plaintiff's solicitor, and also affidavit of special appointment by his Honor to hear arguments that day. Ho supposed the rule would be granted with costs. Mi*. Haggitt said the rule did not ask for costs. His Honor : I do not think I should givo costs, because I think the fault was mine. The order was granted in the hurry of business, and I ought to have considered the matter more carefully. LABNACK V. ELLIS. Mi-. Barton, with whom Mr. Smith appeared, moved absolute a rule nisi upon affidavit of service. Tbe defendant is Rceiver of Land Revenue, Southland ; and the rule was foi* a maadamus compel'iog h'Ti to receive cc: iaiu moneys, namely, 20s. per ac"e for cevij'u Oown lands purchased in Southland, j and to issue a ceri ideate showing that the laud had been disposed oi\ No cause was shown. Rule absolute. THE OTAG-0 AND SOUTHLAND INVESTMENT COMPANY V. BUBSS. His Honor then proceeded to deliver the j following judgment : — Tbis is a rule calling oa the plaintiffs to show cause why the iDplic:woii of judgment lecoverod in she Resident Itagisc tide's Com-i, at X>unedi», «'<h>pH huu Lv struck out, anil why tae orcier of tae 10th of Ocloljcv (allowing such replication to bo pleaded) should not be resciaded, ou the following grouads : — 1. Because the Judge h.id no jurisdiction to make the order without the couseut ol tbe defendant, inasmuch as it practically jesc'iKied a previous order of the 13oi Hay, 187IJ, under which the saoic replication had been struck oat. by consent. 2. Tuat tUe obiniiiiing of t,he said order of the 10th of OCbO'ocv, whe'-eby the said replication was restored w.i=, after fie previons ordef by consent, against good faiuh. Or, faill'i.; the above, then to show cause— Why Vie defendant should not be at liberty to enter a nonsuu, on the foPowing grouads :— 1. I'h-it this action was brought without the authority of the plaintiffs. 2. That the former action in the Resident Magistrate's Court (on the judgment in which actiou the replication by way on estoppsl is founded) -was also prosecuted without the authority of the plaintiffs. 3. That the alleged judgment i l the Resident Magistrate's Court does not amount to au estoppel. Or, failing tbe above, why there should not be a new tr'al on the question of estoppsl ; or why the verdict should not be entered for the defendant on the ground of misdirection in tel Hug the jury tha^ tae judgment of the Resident Mngi&rote amounted lo an estoppel. I shali hrot consver the question of estoppel. The action in the Resident Magistrate's Court was to recover ■£<">, being one quarter's interest on a loan of £3,000 at the rate of 10 per cent, per aimnm. To decide whether £75 wat, or w.js not duo was wi- in tbe e:cteuded ju.iisdici.iou of the Coort, although in deciding the Resident Ma^strate ha-i to look to i <s contract for £:i,0l)0. and satisfy 'oimseli of its validity. But a special defence was set up. By ill- .ivms of the conf tract fo> - the loan of £:!,000. ■'j.s co ap.aiy were to be ' satisfied w^cli Lhe seenrier, u^d, if disbatiblietl. they held as collateral security a-i endorsed promissory note or b'll of exchange fc r /.3,000. The defence set i;p was that vie com r?Ef, through tiieir the)i mana/er, were dissatisfied, and had elected not to .iccopb the niortgt.ae security. Oa tbis Ihere was conflicting evidence, and the 3i«^istrabe was of opiivou t'_at fie plaintiffs lad not so e^cted, and they had judgment for the amount claimed. That the judgment is an estoppel as to any future actiou for the same £75 is not disputed, and is of course beyond all question. But the plaintiffs now seek to treat as iin estoppel every preliminary proposition accidentally deckied upon by the Resident Magistrate, and which he had to take into consideration on his road towards his final decision ; and especially the validity and continuing force of the original contract for the loan of £:t,OOO, and whether the plea was or was not established by tbe ev.dcuce. Virtually, no doubt, he decided these facts ; and this he was necessarily compelled to do before he could say that the plaintiffs were entitled to recover one quarter's interest i'rom the defendant.

Iv the course of the argument I threw out a suggestion that the proposition insisted upon by the plaintiffs' counsel involved a dilemma. If the K.M. rlecided finally and judicially upon the validity of the contract, aud the suflieiuncy and insufficiency of the defence set up, he exceeded his jurisdiction, and there is no estoppel, whereas, if he only decided that one quarter's interest was due, then there is no estoppel beyond tbe various lhnits of the judgment. Tbe question whether any matter incidentally decided, though it lies within the jurisdiction, is matter of estoppel, was discussed in Barns v. Jack»on, 1, Y. and Coll., Ch. C, 685, and an appeal, 1, Phil.. 082; and although the judgment of Vice-Chancellor Knight Brncc was reversed by Lord Cuancdlor Lyndhurst, "the principles laid down in the judgment of VicjCbancellor .Knight Bruce," as Mr. Smith well observes in his note to Doe v. Oliver, '■ arc wholly untouched by the reversal." Of late years, the tendency of the decisions has bceu rather to limit thau extend the operation of estoppels. " They were," says Mr. Smith, " once tortured into a variety of absurd refinement*," and writing more than thirty-five years ago, he was only able to say " they aie now almost reduced to consonancy with the rules of common sense and justice." Vice-Chancellor Knight Bruce, after reviewing the leading English authorities, says, " Generally the judgment neither of a concurrent nor of an exclusive jurisdiction is (whether reversible or not reversible) conclusive evidence of any matter which came collaterally in question before in, or of any matter incidentally cognisable though within the jurisdiction, or of any matter to be inferred by argument from the judgment ; and that a judgment is final only for its proper purpose and object." And the principle as thus laid down is cited with approval by Lord Chief Justice Erie in lvs judgment in Hobbs v. Htnning (17, C.8., N.S., p 791. ; 13, "W. Bep. 481). Now, it will be observed, in examining these two cases, that the question of jurisdiction did not arise. In the former case the Ecclesiastical Court, in the latter the Foreign Prize Court, had exclusive jurisdiction over the subject matter of the suits respectively before them. When the matter decided is not within the jurisdiction of the Court, that affords an additional reason against the estoppel. In stating the rule as to estoppels the element of • jmisdiction k usually expressly iucluded or implied. Thus, in the case of Hobbs v. Henning, Chief Justice Erie stated the rule as relied upon by counsel thus : " Sentences of Foreign Courts, deeding questions of prize, are to be received as conclusive evidence in actions or policies, on every subject immediately and properly within the jurisdiction of the Court, and which it has professed to d-cide judicially." And as to the ground on which the Court had professed to decide, there seems to be no doubt or ambiguity. In Daljrleish v. Hodgson, 7, Bing., 4!)5, T indall, C. J., laid down this rule. " The sentence of a prize Court " — his Lordship says — " is not conclusive as to tho ground of condemnation if there be any ambiguity as to what the ground is ; it must not be left to uncertainty whether the ship was condemned upon one ground which would be a just ground of condemnation by the law of nations, or on another ground which would be only a breach of the municipal law of the condemning country." And it seems, from the judgment of two out of the three Judges in Hobbs v. Henning, that to enable the Court of Common Law to decide upon the estoppel the ground of condemnation should appear in the formal judgment, sentence, or decree.

I think that the judgment of the Resident Wagis* trate is prevented from being pleaded as an estoppel on both grounds, either of which is sufficient. In the first place, the consideration of the contracts and defence set up- was merely collateral and incidental to his judgment in the cause of action before him. He dealt with "that fact of the case only as preliminary and auxiliary •to his final judgment. Bveu if such matters so incidentally decided had been wholly within his jurisdiction, they were merely incidental, and so come within the principle enunciated by "V.C. Knight Bruce. | But, further, if it be assumed that the Resident Magistrate did decide them otherwise than collaterally and incidentally, then hia decision went beyond his jurisdiction. All that he " prolessed judicially to decide " —all that he did decide— was that the sum sued for was~due. The distinction is, I think, clearly kept in view in the two cases decided in Victoria— Brown v "SVhite, 2, Ans.. Jus. 119; Paiker v. Wood 2 Ans' Jus. 53. In Brown v. "White, the action in the County Court was to recover damages for breach of) a contract for the sale of 4,fino sheep, and that contract was for more than £200, the limit of the inriuiin.

short delivery were only £7G, but the County Cmrc Jud.'e nonsuited the plaintiff, on the ground that he !ia I no jurisdiction in the action on the contract. Tiiis decision was upheld on appeal. In the course of the irvjumoncs the case of Park t v. Wood v>\Ui cited in favour of the jurisdiction : but Barry, J., distinguished the cases, and. I think, on very intell'gible giounds. "The case of P.nker v. Wood," he said, "was totally d.fferout. Tnere four persons entered into an agreement to indemnify the plaintiff. . . . The plaintiff sued one on his promise to pay his share. >m nou a^sumo it pleaded the only issue on the record was the defendant's promise to pay. It became necessary to inquire, as a matter of evidence, whether the original agreement for contribution, &c, had been made ; but although tbat incidental inquiry was introduced, it was for the purpose of ascertaining the amount of damage-, consequent upon the breach of promise of the defendant to pay " It may bo proper that I should state that I decide ajjaiust the estoppel on the grounds which I have stated only. Ido not think that any difference of procedure between the lower Court aud this Court would have stood in the way of the estoppel, had it been otherwise sustainable. Keither the absence .of a jury, uor the greatcv latitude in the admission of evidence not admissible iv this Court, would have such effect. Ecclesiastical Com ts have no jury, and yet their decrees operate as estoppels on any question which they profess to decide, and which is within their jurisdiction. Foreign Prize Coi 1 ' ts have a procedure differing entirely from that of our English Courts, and yet their decrees may ■bs successfully relied on by way of estoppel. 1 As to the objections raised on behalf of the defendant, that the plaintiffs' attorney had no authority to sell, and that I had no jurisdiction to make the order of the 10th of October, I do not think them sustainable; but as my judgment is iv favour of the defendant Oil tde question of tue estoppel, it is unnecessary that I should discuss those objections.

There is, however, a difficulty arising out of the form of the rule nisi. The rule asks for a new trial, or that the verdict should bo entered for the defendant, on the grouud of misdirection. As to the latter alteration, 1 can.iot change the finding of the issues by the juiy. What is asked is something analogous to judgment non obstante vcredicto. But this is never allowed to a defendant on an insufficient replication ; it is the plaintiff's remedy on an insufficient plea. The defendant's proper motion upon an insufficient rephca'.ion is to arrest the judgment. In Hand v. Viiugunn, 1, 8.X.C., 7(>7 (I believe a solitary case on the point), there was a rule for judgment von obstaute on uclialE of the defendant on an insufficient replication ; but Tind-.ill, C.J., said :— "The motion wonld perhaps have been more correct in point of form if it had been a motion to arrest the judgment for the plaintiff, . . for we are not aware that any instauce can be found where a deCendant. after an issue has been found against him, has been allowed to have judsjineut in his. favour non obstante." So that even if the motion to eutcr the verdict conld be interpreted as a motion to enter judgment, it could not be granted. To stale the matter briefly : the rulefor judgment von obstante is a plaintiff's rule, that to arrest the judgment is a defendant's rule ; and Ido not think that the power of the Court to amend or remodel its own rules extends to what would be, in effect, the substitution of one rule for another — and that, too. after argumentjin the course of which the poiut was not raised. Where a rule nisi has been granted tho Court will often vary its terms before it has been drawn np and served, or will allow an additional affidavit to be filed and the rule nisi to be drawn up on reading such affidavit, provided the application be not ' oo late ; but that is, in fact, granting a new and original rule, the first not haviug been acted upon. If the same question as to the estoppel had been before me on the demurrer, the judgment vpou .• uch demurrer wonld have been simply and unconditionally for the defendant with costs ; but upon this rule I can ouly order that the rule for a new trial of the issues as to estoppel issues framed upon the replications be made absolute, the costs to abide the event.

Bule accordingly. The Court then adjourned.