CHAMBERLAIN v. HUNT.

Wairarapa Daily Times, Volume 6, Issue 1728, 5 July 1884, Page 2

CHAMBERLAIN v. HUNT.

We copy the following case from theN.Z, Times, which is of local interest, Messrs Beard & Gray being the solicitors acting for kx Hunt, and Mr Bunny for Mr Chamberlain : IN BANCO, InonsDAT, July 3. (More His Honor Mr Justice Richmond.) lIDNT V. HABDCASTLK AND CHAMBERLAIN.

This was an action for prohibition brought by Hunt (the defendant in the lower Court) against the District Judge, claiming to restrain the proceedings m an action, in which Mr Chamberlain was the plaintiff and Mr Hunt the defendant. The action had been one for tresspass. Both parties word adjoining owners of lands held under Crown grants, which desoribod the land as bounded by the Mild Miki stream. It was alleged that the stream had altered its course since the date of the plaintiff's Crown grant, and that as it then existed, it was not the true boundary. The defendant in the Court below had pleaded that the Court had no jurisdiction, as a question of title to land wis involved, but the Pistrict Judge proceeded with the ease, and gave judgment in favor of the plaintiff in the Court below, Mr Bell, for the plaintiff: The question of fact, as to where the boundary line is, is a question of title to land. Jones v Eudman (N.Z.L.R., 2 S.O, 221), Lewell v Jones (19 L.J., Q.B. 372). Mr Bell was stopped by the Court. Mr Gully, for the defendant: The only question of fact before the District Judge was, where the locus in quo was with relation to the deviation shown in the plan, (Mr Justice Eichmond: Is not that a question as to whether the land in dispute belonged to the plaintiff or defendant?) No, because admitting the position of tj)e boundary, it, is still a question pf fact,' as to which side ofthe boundary tlm loop in quo is.' The prohibition must be refused on throe grounds. First, the application is too late after the question of title has been raised in the Court below, and judgment has been given. The plaintiff should have moved for prohibition, instead of pleading denying the title. The District Court is in a different position to that of Comity Courts in England, The defect of jurisdiction does not appear on the face of the proceedings. Pitt-Lewis' County Court Practice (2nd Edit. 1C8) Full v Hutchens (Cowp. 422), Marsdcn v Wardale (3 El rod 81. 695), Mayor of London v. Cox (L.R., 2 H.S. 239, opinion of WillesJ., at p. 282). Secondly, There is no evidence before the District Court to raise a reasonable question of title. Thirdly. The District Court Judge having decided a question of jurisdiction depending entirely upon contested fact, his decision upon the fact is conclusive, and oannol be enquired into in this Court, Joseph v. Henry (19 L.J., Q. B. 369); Brown v. Cooking (LB,;, 3 Q B. 672). Mr Justice Uiohmond: I must say that, after attentively hearing Mr Gully's argument, I am of the opinion I was when I stopped Mr Bell, that it is a very clear case for the issue of the writ, tho action hi the Court below was an action of tresp'ass, The statement of defence raised a question of jurisdiction to j;ry and deal with the 'matter 1 alleged jn the plaintiffs particulars of claim, and further, gave notice that the soil and freehold of the defendant. The District : Court Judge determined the plea, if I may so call it, of jurisdiction agajnet the defendant, and went intp the second question as to whether the soil trespassed on was the property of the defendant, and determined that against him also. If that js not a determination pf a question of tjtlo I don't know what is. Several objections were raised tp tjio issue of the writ. The first was that the appljcatipij js too late, as it is made after the judgement. Now, as to that I think that ut passage from the very learned Willes, J., in the Case Mayor of London v Cox is absolutely conclusive against the defendant (His Honor here pjted the report). It is quite plain that that passage applies to the present case, where the defendant has to the jurisdiction and has had it decided against him. It might be said that the defect in jurisdiction is apparent on the face of the proceedings, but it is not necessary to say that, It is enough to bring the case within the authority of this judgement to say that the question of jurisdiction was raised by the plea and was not entertained. I think therefore that the objection must be over ruled. I think the second objection, that,

no sufficiont ovidenco of the dofendants title was given in the Court Mow, '8 wholly irrelevant. In order to oust the jurisdiction I it is only necessary to show that a question j of title is bcna fide raised not that it is supported' by sufficient evidence'. The business of the District Judge is not with the evidence at all. On the third point, that the decision of the District Judge is conclusive on a question of jurisdiction depending entirely upon contested facts, the case of Thompson v Nyham (17 L.J.Q.8.) is a ruling authority. The determination of the Judge on such a question is not conclusive. The fallacy of Mr Gully's argument is apparent when the inquiry is made, on what question in this case does the jurisdiction depend I Now it depends on the fact that the title to real property is not in question, but that is the question the District Judge has determined, that the titlo to the freehold is not in question; and that determination is clearly wrong, This: is shown by the cases of Joseph v Henry and Brown v Cocking. In both these cases the jurisdictions depend on disputable questions of fact in which there, was conflicting evidence, and the Court would not interfere with the decisions of the inferior judges. But here the question was not a disputable one, it is whether the title to the land is in question, and that is not disputable but must be decided in the affirmative. Mr Gully put it that the question was whether or not there was a deviation in the conrse of the stream but that is not the question on which the jurisdiction depended, but the question on which the title depended. The quostion as to whether a trespass had or had not been committed was a question as to whether the land belonged to the plaintiff or not. I think therefore the writ must go with costs in the lowest scale, Mr Bell asked that the case might be remitted back to the District Court, to exercise his discretion as to whether he would award costs under section 6 of the District Courts' Act, 1880, _ His Honor did not think he had jurisdiction to do so.