Supreme Court.

Bruce Herald, Volume VIII, Issue 798, 28 April 1876, Page 6

Supreme Court.

*™_ Tn the Supreme Court, in- Banco, on Tuesday, his Honor Mr Justice AVilliams delivered judgment the case Macpheraon and Another v. Shaw. He said : — This was a rule to set aside the judgment signed by the plaintiffs in this action, and also to set a^ide a writ of fi.fa. issued on the judgment. The first jrroi\nd for setting aside the judgment -\ya.s, the -Judgment was entered up for .he plaintiffs, whereas the (jaffstutani succeeded on the first issue. \ cannot see-^ taking the verdict as it stands, how judgment could have been entered up in aDy other way than it has been. The seoond ground was, that the fourth issue teas erroneous, on account of its giving theplaintiff damages in respect of land iowid by the first issue to have been the^ property of. and in the possession c£. »hs. defendant at thetime of the co^nu>sipn of the alleged trespass, j,sid thfllj the judgment signed by the; | plaintiff was erroneous, so far as it included 1 • these damages, It was contended, on behalr, of the defendant, that a remittitur damna* be not entered as to the damages given liira on the fourth issue. The case of tb,& Commercial Bank of New Zealand y> ffutchisoit decides that a remittitur fipftfia, should be entered when either I|he. yerclict of the Jury gives mora \hj^ the pleadings show to be claimed by the. plaintiff, or when the judgment fargoes part of the verdict of the jury ; and that, if in these, f^aes a remittitur damna be not enters^, '(he judgment will be set aside 3,9, irregular. I presume that the En^Hsh, eases were fully discussed in the argument of the above ease, but I confess thafe ; they appear to me to show that the negleefc to enter a remittitur damna is a ground of ewoar, and not a mere irregularity, $wr which a judgment will be set aside p& %oiion. Be this as it may, the rn^senjj 'case- is not governed by the ' Qfrfigwr.cifiV Bank of New Zealand v. \Mktchisoi),, as the judgment agrees with the- ' YvWot» *$& & c Yerd^ot does not give grease?

damages than the declaration claims. Thei objection is, that the findings of the verdict are inconsistent with each other, and are hot supported by the pleadings. This is clearly a ground of error, and to allow a judgment in such a case to be set aside for irregularity, would,- in effect, be deciding generally that •where there is error parties need not proceed in error, but may have the judgment reversed on motion. This conclusion may possibly be a desirable one, but it would nevertheless abrogate the rule of law that an erroneous judgment, given in a Court ot ■'. Kecord, can only be reversed by error — BaCOnV Abridgment, title, irrror.— Marshall v. Fleming, 1, _*. Z. App. Cases. The third ground taken is that the judgment is erroneous in giving the plaintiff all the costs of the action without any allowance to the defendant of the costs, of the issues on which he succeeded. Obviously, this is a question of reviewing the taxation, which should have been raised before judgment was entered up. The objection taken to the writ of fi.fa. is that it directs the Sheriff to levy the whole amount of the judgment, although the' defendant had paid £15 into Court. j , . . i I do not think the writ itselt is irregular, as it strictly pursues the judgment. An endorsement under rule 189 should aye been made on it directing the Sheriff to levy the amount, less what was paid into Court. The defendant has clearly a right to come to the Court, before the Sheriff levies, and to insist on such an endorsement being made. The Court has power, under rule 495, to mould the rule absolute to effect this object, and the rule will accordingly be that an endorsement be made on the writ of Ji. ja. directing the Sheriff to levy the sum ot M,IBB 10s 6d, with interest from the date mentioned in the writ, instead of the sum of £203 10s 6d, and interest. The rule will thus far only be made absolute. There will be no costs.