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1 correction by doug.butler - Show corrections


? STIPEEME COUKT.-IlfrSANCO. ; /s!,-,L.-.TU^]DAT,.DECi3rBER:12. . ;iW' ,,jBef.oire ^he Ml Cpurtl .,;,?; .CpiaPOBA'noN Acx, JS61. ' lritinMTiA rnnponATIOIf.

,Mr. Palmer moved, on behalf of the Mayor ana Councillors of the Corporation of Kapunda, that the rule granted on the 27th September be made absolute. ,; .... ? ..__. . r_ ? „ ' .

Mr. Stow, with wnom appeared air. cajsoi, i jhowed cause against the rule, which called upon William Oldham to show cause, why the order made, by Mr. Justice Boothliy on the 25th October should not be set aside,, and thq writ of prohibi tion issued thereunder.or purporting to be issued thereunder, should not be quashed, and the service of the writ be set aside upon the groumls that the order was irregular because obtained cxparte; that the writ was not in terms of the order; that the writ wasirrcgularly issued and tested; that the writ was served irretrularly; and that a. writ of prohibition will not lie against, a Corporation for merely ministerial acts. With regard to the first point, Mr. Stow argued that the Court had the powerlto grant a writ of prohibition exparlCy and that a prohibition did not finally determine the rights' of the parties, because -the Court could award'a consultation, at which the matter could be arjmed. '-? (He ? quoted 'Bacon's Abridgment,' p. 579; prohibition, E, toshow thata writ of prohi bition could be grauted exparte. and also 'Brougham's County. Court Practice.' He also submitted that the; matter .had beea broujht forward improperly. The proper course was not an interlocutory application of this port to seek to have it set aside, but to;award a consulta tion inorder that the question might be Boleimily decided and the proceedings appear on record, so that a person might not be deprived of his right to ha,ve thematter argued. ; After briefly arguing the second and third points, he proceeded to argue principally upon the point that a writ of prohibi tion will not lie for merely ministerial nets. He quoted a case to show that a prohibition would lie to restrain a public -nuisance.; and assuming the Corporation were acting illegally in the matter of the assessment, it was a nuisance wluch could be prohibited. .He also cited authorities to show that a. writ of prohibition was hot confined1 to cases against Courts .where judicial power was exercised,

but in some cases where persons acted ministerially it would be. The' Municipal Council was const i-. tuted a.Cpurt (clause 51) for the purpose of revising the citizens' list, and in respect of making an assessment upon the town it was something pre paratory to a judicial, proceeding; In making; an assessment they were, to-.a.-'.,certain-;extenti exer-, cising judicial powers, they, having; to exercise their discretion in allowing or disallowing^.the assessmemV which had to pe.confirmeu;by them. After some further argument by Sir. Stow, ., , . , Mr. Palmer replied. ; ?-??-. ' ,,-.-:. ,, :. Mr. Justice.Gwynne wascf- the opinion .that a prohibition would uot lie in this cas& . '. ?? ;r . Mr., Justice Bpothby held.aprohibition would, he against a. pody i of persons, it was not cqnnned simply to a Court, and if i- writ. of, prohibition j wpuJ4lie to a (^urt'% exceeding- its jurisdiction,. ; surely it would lie fo. a body which haiino jurisdie tio'n at all. Undoubtedly it ?wonjd .be a:prpperj course to pursue to have thequestipn iaisedupon record, there. being.Iufge interests, at, Stake, ;m erdprithat either, party nilght have [the opportunity | ..The .Chief Justice, thought the rule should, be made absolute. ... . , JBulo absolute with costs. ' OHAliBERLAItf V. COCK. . , ',, Mr. .Andrews, Q.C., asked when the Court would be prepared to deliver judgment m this; case. . ?'-,? -'.i ?',.!?'? ? ? ? ? The Chief Justice. said that in consequence- of the Civil and Criminal Sittings, the Court had been ' unable to give, judgment, and could fix no. par? ? ucular'tujie. '.'.., -' ' t -. . , ? I-'.--' -.: . . COFELANDV. WENTZOi. ,Mr..,StowrQ.C., moved that the. rule granted herein he-maue absolute-, Mr. Andrews. Q.C., appeared against; the rule, which callud, upon., the defendant to show cause why the ripnsuif pbtalried in.this cause should hot be set aside, and a now trial granted on the grounds, first, tnat the learned' Judge,! who trieVl the cause directed a aonsuit, although the pjaintin' appeared aniT olijecied to be nonsuited;, second, Uiatthe pTaintiQ' was . .nopsuitcd after the; defendant s .case had been heard; amUhird. that there was evidence to no:t6,the Jury. in support oftne-plaintifTs case. V After hearing tlis. arguments of . the -learned counsel,.- ???'? '??'.'?? ? - ? ^. TIij Chief Justice said the Court would consider their decision.

IN THE MATTER OF G. H. GILES       Mr. Way moved that the rule made November 25, striking George Hartley Giles, a practitioner of the Supreme Court, off the rolls of the Court, be reopened. He read ihe affidavits of G. H. Giles,   showing that in consequence of the length of distance he was away from the Supreme Court, and being without means to enable him to come to Adelaide, and not being supplied with copies of     the affidavits, he could not attend and show cause; that reasonable time was not allowed him to enable him to do so : and that he had an answer against the rule.. The learned gentleman stated that he believed Mr. Palmer did not object to the rule being reopened, but wanted security for costs. Mr. Pahrier- said there was no answer to, the substantial merits of the case in the affidavit, and he imagined security would be granted. The. Chief Justice— He does not deny a single fact stated, Mr Way. Mr. Way— But he says he has an answer, your Honor. The Chief Justice enquired whether it was the practice to serve copies of affidavits. Mr. Way said it was only fair to an attorney who lived a considerable distance away from Adelaide to serve him with copies of the affidavit, Mr. Palmer submitted that the application was   irregular. The name of George Hartley Giles had been erased from the rolls of the Court, and if he wished to be restored an application based .upon proper grounds ought to be made to that effect.

After a pause.       The Chief Justice said the Court could not reopen the rule without some grounds for doing so; but that if an affidavit be brought before them showing the grounds upon which Mr. Giles consi- dered he ought to be restored, they would hear it and consider the matter. Equity,     walsh v. fothehixgham. Mr. Stow, Q.C., in the matter of a petition for the payment of money, was about to move herein when Mr. Way, who appeared on behalf of James Fotheringham, took a preliminary objection that the cause was wrongly entitled, there being no such case in Court. To stand over, with costs. STEWAUT V. LAKE. Mr. Palmer, on behalf of the claimant, moved for a rule to show cause why the role absolute of the 4th!August, discharging a rule absolute, should not beset aside, and also for a Stay of proceedings in thematter. ? ? ' The Court, after some consideration, ruled that they could not open the matter again. Mr.. Palmer then asked to have the rule rescinded. ? The chief Justice told Mr. Palmer he must make a specific motion to alter the rule of the 8th March.. . , Practice of the Court. The Chief Justice intimated, during the course of some remarks in the last cose, that, as Mr. Palmer had stated that he had been unable on several occasions to .make an application to the Court, they thought it would he wise to lay down as a rule that whenever the Court rosebefPrea counsel had been able to move, if he handed in to the Master a note of his case; the Court would take it before any other matter on the rlext Bitting of the Court; so that junior counsel would not be compelled to attend time after time for nothing. ' floucAur y. oliveb. Mr. Cooper moved that the rule granted herein be made absolute. Mr. Robinson showed' cause, and in the first in stance took some preliminary objections upon' technical grounds to the granting of the rule, 'viz., that the affidavit of .Air. Cooper did not show 'suffi- cient material upon which to ground the rule, that: ;tlm certificate of -the Local Court Clerk that the j caiie Iia4 been tried had not been had: and the non- : produoioB of the Judge's notes: ? t The Court thought the objections held goooV but . determined this time to enlarge the rule. Mr. Kobinsop then proceeded to argue upon .the question of set-off, and that there could not be a- -nonsuit because leave was wt reserved to the Supreme Court. ? ' ' ? . ? . Kulc absolute for new trial; costs to abide the event. ? ? ? ????TV RB J. HOnSNELL. ; Mr. Baker moved for a rule nisi for icerliorari .to bring up the proceedings of the East Torrens District Council in the matter of a proposed road through the applicant's garden. Having read the affidavit of John Horsncll, he stated that the! grounds upon which he relied fortho rulewere-^i first, that notice had not been given as required by i the Act No. 17 of 1861; second, that the road was through a garden; and third, that the notice and' the order which' appeared in the Government] Oasetle di&Bot agree. ' ' i '. 'Rule nisi granted.'. ? ? - ;, .-.? i :-.-.?? l ?BREW8TERV. (J'BBIEK. ? ?? ? , i .Mr. Palmer moved that the rule granted herein be m^de absolute. '.???'??? No one appeared to show cause. , . i Mr. Palmerproduced an affidavit of service. ' Kule absolute. ' The Court adjourned usfil Tuesday next.