SUPREME COURT. TURNER V. TIVER. COMMON LAW. Court. The objection was upheld, and the case struck out, but the Magistrates declined to make any order as to costs. Way, in support of the application. The general jurisdiction. of the Local Courts in this colony is only limited by the objection of the defendant that the action is not brought in the nearest Court. The Magistrates also have power to consider their jurisdiction, and proceed if they think plaintiff had reasonable ground to suppose that it is the nearest Court. Palmer, for plaintiff.-The right of the defendant to object to the jurisdiction of the Court does not raise an issue. Where a Court has no jurisdiction it has no power to give costs, but can only declare its own incompetency Lawford v. Partridge, 1 H. & N., 621. Way, in reply. The defendant is bound to enter an appearance before he can take the objection as to the Court not being the nearest, and as in the case of a special summons he cannot enter such appearance without an affidavit that he has a good defence on the merits, he would be bound to appear on affidavit of that fact, and the jurisdiction of the Court would then be enquired into. By the Colonial Act costs are to abide the event of the proceedings in the action, not the event of the action Hill v. Swift, 24 L.J., Ex., 137 The Kate, 33 L.J., Adm., 122 Regina v. Padwick, 8 El. & Bl., 704. (HANSON, C.J.-It seems to me that if costs are to abide the event of the action, the action is not concluded; if they are to abide the event of proceedings, that the proceedings are at an end. The Magistrate has no jurisdiction to decide the action, and it appears to me that he has no jurisdiction to give costs. The question is whether the Magistrates not having given costs this Court can be called on to compel them to do so. We will think the matter over.) The event of an action is quite different from the event of the cause of action; the action is at an end as far as regards the Local Court. Cur. ad. vult. SUPREME COURT. MORGAN V. DARWENT. COMMON LAW. 24 November HANSON, C.J., delivered judgment as follows:-This was a summons referred to the Court by His Honor Mr. Justice WEARING, and the question is whether the plaintiff is liable to pay to the defendant the costs of appearing to object to the jurisdiction of the Local Court, out of which the summons was issued, on the ground that it was not the nearest Court to his residence. And we are of opinion that he is so liable. The question is not free from doubt, but we think that the language of sec. 202 of the Local Court Act, 1861, is wide enough to include the present case, and that inasmuch as the Court may, notwithstanding the defendant's objection, enquire into the case, and even hear and determine the action, it is only just that the defendant should have his costs of attendance. If in any case grounds are shown, which in the opinion of the Local Court justify the plaintiff in issuing his summons out of it, such Court may refuse to give costs against him, but when the Court has not thought fit to exercise this discretion, we think that this must be taken to be a proceeding the costs of which abide the event. That would have been in favour of the defendant, and he therefore is entitled to his costs. The defendant, therefore, will have his rule, but there will be no costs of this proceeding. A took a bill of exchange to a Bank for discount, drawn by himself and endorsed by an accommodation endorser. The Bank refusing to discount, A then applied to B to assist him with his endorsement, which B for a consideration agreed to do. The Bank then discounted the bill, which being dishonoured at maturity was paid by B, who then sued the prior endorser. The defendant pleaded as an equitable plea that B and himself were co-sureties for A, and therefore liable only to contribute equally. On the trial A stated SUPREME COURT. MORGAN V. DARWENT. COMMON LAW. and B denied that on the endorsement by B it had been agreed between himself and ▲ that he (B) should become party to the bill as co-surety with A. Held, per GWYNNE and WEARING, J.J.—That there was no evidence to go to the Jury under the equitable plea. Per HANSON, C.J.—That there was such evidence, but that any verdict different from that given would have been against the weight of evidence. THE plaintiff endorsed a bill drawn by Mr. Howes on C. T. Childs, of Providence, United States, for the sum of £2,000, such bill having been previously endorsed by the defendant and Howes. Prior to the defendant's endorsement the Bank of Adelaide, to whom Howes took the bill for discount, refused to discount without some other endorsement to their satisfaction. Howes therefore applied to the plaintiff, and he consented to and did endorse the bill in consideration of £50 then paid him by Howes. It was stated by Howes, but denied by the plaintiff, that at the time of endorsement it was agreed between them that the plaintiff should become a party to the bill as co-surety. The bill was dishonoured, and the Bank claimed the amount from plaintiff and defendant, who each paid £1,000; whereupon the plaintiff brought an action against the defendant for the amount so paid, and on the trial GWYNNE J. ruled that the statement of Howes before set out was no evidence to sustain an equitable plea set up by the defendant, that plaintiff was co-surety with him for the whole amount. Defendant's counsel obtained a rule calling on the plaintiff to show cause why a new trial should not be had on the ground of misdirection. Stow, Q.C., showed cause.-In this case the contract did not exist between the sureties, but between the plaintiff, the last surety, and the person for whom the security was given, and it was open to the plaintiff to show that the first surety stood to him in the relation of a principal Manley v. Boycot, 2 El. & Bl., 46 Taylor v. Burgess, 5 H. & N., 1 Greenough v. M'Cleland, 30 L.J., Q.B., 15. The defendant endorsed the bill, and held himself out to the world SUPREME COURT. MORGAN V. DARWENT. COMMON LAW. as being willing to be liable for the full amount; there was nothing to prevent Howes from making any subsequent arrangement to carry out the object of the bill; the plaintiff became collateral security to the Bank only for the payment of the bill by Howes and Darwent, and Darwent was in no way prejudiced thereby— Craythorne v. Swinburne, 14 Ves., 170. Morgan was surety for the surety, and the verbal evidence was confirmatory of this position. Ingleby followed on the same side.—The bill before it was brought to plaintiff was a perfect document, and had in fact been partially negotiated by the Bank, who, as shown by Mr. Souttar's evidence, had made an advance or had a lien on it. It was therefore clearly as collateral security for Darwent and Howes as principals that the plaintiff endorsed it; as far as the Bank only was concerned was he a co-security. The document shows that all previous endorsees are security to the last endorsee— Willders v. Stevens, 15 L.J., Ex., 108. (HANSON, C.J.-The order of endorsement on a bill shows primâ facie the liability of the parties; it must then be shown by evidence that one endorsee is not liable as a surety.) (GWYNNE, J.-Suppose the Bank had given Morgan notice of dishonour and not Darwent, could Morgan then have sued Darwent ?) Admitting the fact of their being co-sureties, they would then both be discharged. Way and Barlow contrà.-The English cases show that where there is no evidence to go to the jury, the Judge must nonsuit, or direct a verdict, as the case may be; but that where there is any evidence, the measure or quality of that evidence is for the jury to decide. Were it otherwise a jury would be utterly unnecessary, except for the purpose of assessing damages. In the absence of Mr. Morgan's evidence the defendant would have been entitled to a verdict, and the conflict of evidence between Morgan and Howes was a question for the jury to decide; and no evidence having been allowed to go to the jury a new trial must be granted. The case turned on the credibility of Morgan and Howes, and the learned Judge should not have withdrawn from the jury the con L SUPREME COURT. MORGAN V. DARWENT. COMMON LAW. sideration of that question as bearing on the defendant's equitable plea. The bill was not endorsed by plaintiff for the accommodation of Darwent, but for the accommodation of Howes, which established the presumption of a co-surety. The case of Reynolds v. Wheeler, 30 L.J., C.P., 359, shows that the form of the instrument may be disregarded and intentions and equities taken into consideration. Cur. ad. vult. 24 November— HANSON, C.J., now delivered judgment:-In this case the question is whether it was the duty of the Judge to submit to the jury the evidence of the defendant in support of his plea. I confess that I should have been better satisfied if the evidence had been so submitted; but if the jury upon that evidence had found for the defendant I conceive that the plaintiff would have been entitled to a new. trial, on the ground that the verdict was 'against the weight of evidence. This being the case, I do not dissent from the view of my learned colleagues that the learned Judge who tried the cause was right in his direction, and the rule will accordingly be discharged. Rule discharged. |