AN IMPORTANT DECISION.

Westport Times, Volume V, Issue 843, 29 July 1871, Page 2

AN IMPORTANT DECISION.

(From the "Otago Daily Times.")

An important decision was lately delivered in chambers by his Honou? Mr Justice Chapiiian; da a point which affects a practice" in force id some of the Resident Magistrate's Courts. It has been usiial in several of these courts to allow a plaintiff irt an action to withdraw it at any timd previous to the case being called on for hearing. Such a course not urn frequently necessitates the defendant bringing another action against thd plaintiff for the recovery of the expenses to which the former had been put in employing professional assist ance, subpoenaing witnesses; «Stii The circumstances which called fdrth the present decision are as follow : On the 3rd April last, Mr Tyson suetf Mr J. F. Herbert in the Resident Magistrate's Court at Lawrence, f6i fifty pounds alleged to be due. The 1 summons: was duly served; and - the bearing fixed for the 6th of the samd month. On the 4th, however, Tyson; through his solicitor, delivered to the clerk of the coburt, and also served on Herbert, a notice of withdrawal of the case. The latter disregarded the intii mation, and attended with his solicitor before the Magistrate at the time ap*' pointed for disposing of the suit; but neither the plaintiff nor" his solicitor appeared. The defendant's solicitor claimed judgment for his Client's costs, and contended that the alleged teN mination of the action could not affect these. The Magistrate adjourned the hearing for a short time, and gave the plaintiff notice of the j application for costs. Both steps, j however, were unnecessary. Ulti. j mately judgment was given in favour of j the defendant for two guineas. Exe- j cution was afterwards issued against the goods of the defendant, but after seizure' he paid the amount under protest, and instituted an action in the Supreme Court against the Magistrate for damages, alleged to hare been sustained through the latter having acted without jurisdiction, and for committing an alleged trespass in causing Tyson's goods to be seized. The Magistrate applied, under the 1 Justices Protection Act, 1866, to his Honour to have the action stayed, on the ground that he (the Magistrate) had.acted in a matter in which he had by law a discretion.- Against thiswiSj cited "Arundel v. "White," 14th, Earf/S 21G. His Honour held that after <B plaintiff has issued a summons outfl/*Hj Resident Magistrate's Court, and&t'M caused the defendant to be served ■ with a copy thereof, he (the plaintiff) fl has no power to withdraw fh"e actitinH until he has satisfied the defendant's 9 claim for all costs to which he may beSj entitled, and that notwithstanding ■ any attempt to sooner put an end to ■ the suit, the Magistrate may g* vd H judgment in favour of the defendantaj for his costs—if' any: The actionaj against the Magistrate was accordingl/pj ordered to be stayed. 1 A lecturer on the "moral senti-H ments " in Philadelphia remarked thatM the "dearest ship in the world va WM friendship," whereupon a young mals |H rose from among the congregatior«H and stated that he knew another-HBB dearer ship still—and that was COU "JH ship. The young man had once beeajß] a defendant in a claim for breach GSB promise of marriage. ij9