SUPREME COURT.

Press, Volume XVI, Issue 2159, 19 March 1870, Page 3

SUPREME COURT.

Friday, March 18. [Before Mr Justice Qresson.] In Banco. chapman v tooth. His Honor gave judgment in this case as follows:—This was an action to recover damages for beach of a covenant contained in a deed of 9th December, 1864, by which the defendant covenanted with the plaintiff that a certain flock of sheep expressed to be thereby assigned to the plaintiff by the defendant was then depasturing upon a certain ran of one Alexander Lean. The case was tried before mc at the December session, when there was a verdict for plaintiff for £3072 3s. The defendant obtained a new trial upon several grounds—lst, That the verdict is against the evidence and the weight of evidence. Under the fifth issue the jury found that none of Hie cheep assigned or purported to be assigned by the deed of 7th December, 1864, were at :he time of making the said deed, or at any ;ime thereafter depasturing upon the said •un. The burden of proof of this fact of sourse lay upon the plaintiff, but the evidence m the point is to my mind far from conclusive. Mr Sladden, plaintiff's witness, saye ie was under the impression there were sheep •f defendant's on the station ; that he can't ecollect whether in September, 1868, but >robably not till afterwards. True it is that te also says, that there were no sheep on the un except branded AL (conjoined) from the ime he entered (September, 1863) untiJ jean's failure (August, 1865) and that he told 'ereday (September, 1865) that there rere no sheep branded TO ; that there

were no sheep specifically appropriated to defendant in the books to his knowledge. But this evidence is not inconsistent with the defendant's case that there were sheep of the defendant's on the run which bad been put on prior to March, 1863, which, had they borne at one time the brand TO, as there was evidence that some of them at least had, would have ceased to bear it after the subsequent shearing unless Lean had renewed it, as it wae his duty to do. Lean, plaintiff's witness, says that there were sheep of defendant's on his run in December, 1864— that they were never removed off the run to his knowledge. Hassell, plaintiff's witness, says there wersa sheep put by defendant on Lean's run j that Parkinson was Lean's agent for receiving defendant's sheep delivered to him for Lean, who paid wool money for them to defendant up to the date previous to the sale by defendant to plaintiff; and that

the agreement of 4th June, 1864, out of which this action arises, was intended to refer to

those ehe&p, and was fin alteration of an original agreement. Carter, defendant's witness, who was manager on Lean's run from 1861

to 1863, says that he received the sheep from Parkinson, in one flock, in January or February,

1862, about 2800—some of them branded TO, and that he branded them AL (conjoined). Then there is the deed of October, 1865, by which plaintiff transfers to Aynesley for £2750 his interest in the flock purchased from defendant, and assigned by the deed of 9th December, 1864. I am aware that in cases where the verdict has turned upon a question of fact, which ha* been submitted to a jury, and that the verdict is objected to as against the weight of evidence, the general rule is in favor of the verdict, and the setting it aside is the exception ; but this rule, which is founded partly on the fact that the Court in banco has had no opportunity of judging of the demeanour of the witnesses at the trial, is subject to exceptions frequently where the judge who presided at the trial reports that he is not satisfied with the verdict. Another ground relied on in the rule nisi ie, that the jury were directed unless they were satisfied that a specific flock of sheep of the number, ages, and sexes specified in the Ist schedule to the deed of 4th June, 1864, branded TO at the time of delivery, or at any time thereafter, was delivered by the defendant to Alexander Lean, they were not justified in assuming that any of the sheep upon the station on the 9th December, 1864, were the property of defendant within the provisions of the deed of 4th June, 1864. This direction was given at the instance of plaintiff's counsel after the jury had retired to consider their verdict upon their returning to ask a question of the Court. Upon further consideration, I am of opinion that it was erroneous, and calculated to prejudice the defendant's case, inasmuch as it tended to shift the burden of proof from the plaintiff to the defendant, and to lead the jury to suppose that the plaintiff rather than the defendant was to profit by the general vagnenese of the evidence submitted to them. A third ground relied on was tbe omission to direct the jury as to the construction to be put upon the deed of June, 1864, as to the number of sheep, with their increase, belonging to the defendant, that ought, pursuant to the provisions of the said deed, to have been depasturing on the run on the 9th December, 1864. It was clearly the duty of the judge to inform the jury as to the true measure of damages, and I think that in this respect the direction was defective. It is unnecessary for mc to go through the several other grounds in the rule, as I am of opinion that on each of those mentioned, as well as upon three other grounds specified, viz., the 3rd, 6th, and 9th, the rule must be made absolute. Rule absolute for new trial — new trial without costs. BE THE OOODS OF PATBICK MACOY, DECEASED— INTESTATE. Mr CbttreU, for Mr Wynn Williams, obtained letters of administration to Lawrence Mackey, brother and next of kin. BHODBS AiSTD ANOTHSB V. BHODBS. This was a suit for dissolution of partnership and* taking accounts. W. B. Rhodes and R. H. Rhodes were plaintiffs, and R. H. Rhodes, executor of George Rhodes, defendant. The case had been adjourned for the purpose of ascertaining whether authorities could be shown to allow the same person to be plaintiff and defendant in the same case. Mr Nottidge appeared for Mr W B Rhodes,

and submitted that, although at law the same party could not appear on both eidea of the record, yet that in equity such might be allowed, and he quoted from Mr Justice Storie in support. Mr Hanmer, who appeared for defendant - , said that Mr R. H. Rhodes would hare been very glad to have diveeted himself of his office of executor if he had the power to do so ; but having once acted, he could not divest himself of the office. His Honor said that the difficulty in hie mind was one of principle. Mr R. H. Rhodes was filling two conflic'ing characters. He would look into the case, but could make no order at present. GBAHAM V PEPPEBELL. Mr Garrick applied to amend the record in this case, which was tried at the last sittings in nisi prius. The parcel of land which formed the subject of the action had through a clerical error been wrongfully deeoribed in the declaration. It was intended to have made the alteration at the trial, but that was inadvertently omitted to be done, and he now applied to his Honor as a Judge at nisi prius in Chambers to make the order to amend nuncpro tune. His Honor intimated that he felt inclined to accede to the application, but he should take time to consider. In Bankruptcy. BE TIIOMAS PEIMEOSE BABEB. Dr Foster obtained an order, declaring deed of arrangement completely executed. BE THE BANK OS NEW SOUTH WALES AND BE EDWAED WATSON. In this case a conditional order of adjudication had been obtained on petition of the Bank of New South Wales against Edward Watson. Mr Slater now showed cause and contended that creditor had not a sufficient debt at the time of the act of bankruptcy. The petitioning creditor's debt must be a debt upon which he could legally sue. Now, on 24th February, the petitioner could not sue on the debtor's bill, because it was not then due, neither was it a good petitioning creditor's debt, because if at the time of the petition a rebate of interest had been allowed it would not amount to £50. For these reasons he would submit that the order should be discharged. Mr Garrick, for petitioning creditor, pointed out that under the 71st section the Court had power, supposing the adjudication to be had, though a petitioning creditor be doubtful, to substitute one creditor for another, and thus cure the defect. He argued that whether a debt was at maturity or not it was a proveable debt, and it was only when not at maturity that a rebate was allowed ; but in the present case even if that were done then the bill would' be a sufficient creditor's debt, unless the debtor had a eufficient defence either at law or in equity. . ", His Honor eaid that he was clearly of opinion under the 59th, 60th, and 185 th section of the New Zealand Act, that it was a good petitioning creditor's debt, as it appeared to be deiitum in preesenti although solvendum in futuro. The order of adjudication would therefore be made absolute. Meeting of creditors to take place on 28th March at eleven a.m. Bankrupt to surrender at the same time and place. BE W. BLUNT, W. BEYANT, AND J. BBADLEY. In this case Dr Foster obtained an order directing the Trustee to withdraw notice to Post Office authorities to retain certain monies in the Pout Office Savings' Bank which belonged to the children of one of the bankrupts, and were their earnings. BE JOHN HENBY NODING-. Dr Foster have established a prima facie case of bankruptcy, obtained a conditional order of adjudication in this case; order not to issue until 27th April. BE GKEOBGE CLIFF. Mr Cottrell obtained an order confirming the choice of trustee, and fixing date for final examination on 7th April pro forma. BE HOBACE SIMPSON BBQWN. Mr Cottrell obtained a like order in this case. The Court then rose.