SUPREME COURT.

Daily Southern Cross, Volume XII, Issue 835, 29 June 1855, Page 3

SUPREME COURT.

Tip Court opened at 10 o'elnck on Tu3«day last; and his Honor the Chief Jubtice delivered judgment on the following applications : — Kklly v. Coyle. This is a motion for a Rule Am for leave to enter a nonsuit, on the giound of the insufficiency of the notice of dishonour. It is admitted that the notice was given in due time, and that it was given by an agent of the holder. The objection now made is confined to the terms of the notice. The notice was in the lolloping form : — "No. 139. '•Union Bank of Australia. "Auckland, New Zealand, 31st March, 185-5. ' " Sir, — Take notice that a promissiry note, d.ited the 27th day of December, a. n., 1854, diawn by George McKinly in favour of j'oursclf for the sum of £60, payable in 3 months after date and which bears your indorsement, and that the saine has been debited to John Kelly's Ac. with this Bank. " Yours obediently, "Fjiascis STrwAUT, " Pio. Manager." " To Mr. Patrick Coyle, Auckland." To this notice it is objected, tiist, that it did not expressly inform the defendant that the plaintift looked to him for payment : and becondly, that it even conveyed to him an intimation to the, contrary. As to the first point, the law appears to be now settled by two decisions of the Com t of Queen's B neh, (Furze v. Sharwood, in 1 8 1 ' , rcpoi ted in 2 Q 15, oob, and King v. Bicklcy, decided in 1842, Ibid, 419). In the former of these cases, Loul Denman sa d — " No one disputes that the fact must be stated—the notice of dishonour plainly given. But if this be done, we may now enquire where is the authority establishing the position that the notice must also tell the party addressed that he looks to him for payment ? If not, why send the notice ? True, he may have some other reason for informing the party addressed of the dishonour, while looking elsewhere for hid money. But unless he tells him this, the receher of such a notice cannot but be certain that the sender means to call upon him for payment." — " Where notice has* been gr\en by another person than the holder, there may be good sense in requiring that it shall be accompanied by a direct demand of payment, or a statement that it will be required of the party addressed : but in no case has the absence of such information been held to vitiate a notice m otlier respects complete, and which has come direct from the holder." In the latter of these cases, Loid Denman delivered the judgment of the Court in the following words :—: — " On the point in this case as to notice of dishonom, we have conferred with the other judges, and aie of opinion that it is not necessary in express terms to inform the party whom it is intended to chaige, that he will be looked to for payment. We think that the send - ing notice of dishonour is in itself sufficient for that puipose." These decisions have been followed by the Court of Exchequer, in Miers v. Brown, (11 M. & W. 375), and in a later case in the Common Pleas, in 1849, Count v. Thomps >n, (7 C B. 400). In this last c ise, Chief Ban n Pollock says, after refening to the caselha\e lcntioned, — " In substance, these cases seem to establish, that in order to make a prior holder le-ponsible he must deme iiom some person entitled to cull lor payment information that the bill has been dishonoured, and that the party is in a condition to t,uc him, irom which he may infer that he will be held rcsr-o.isiole. In Miers v. Brown, Baion Anderson describes what is needful in the^e terms :--" Knowledge of the dishonour obtained from a communication by the holder of the bill, amounts to notice." As to the second objection, I do not see how the dafendant, w lien he received notice that the note had been dishonoured and that the bank had paid themselves out of the plaintiff 's funds, could reasonably inter that he was not therefore held liable; when the fact of notice be- ! ing given furnished ground for so obi ious an inference the other way. Did it not rather show (to follow the words of Chief Baron Pollock) that the plaintiff was in a condilion to sue him, fiom which he might infer that he would bo held responsible. I think thero ought not to be any Rule. S.VOWDEN V. BtJRBT. In this case the pl-umiff obtained * verdict. The defendant now mo\ es in airest of judgtment, on the ground ; that the declaration contains two counts— that the for- j mei of the two is good in, law, but the latter bad — and

tVu the civ a » - hui,- -', i ',r% -i' - 1 <^'' '.n-t.-utn' t Ivm,.. dc^,,-,! c . , Ilk - ;, „I C. 'i,i\> C ri. <)"f; l T tn aircat 'ho ii | ul»->m nt. Vh • ohi t.-i : ' u > i fl i'-.j ••„-. .tlk\. socond count is the wan" ot the wonl.. "maliciously, and without probable cause " before the words "prefeiml a Bill of Indictment," &c. , , According to the rules of this Court (confirmed by Ordinance, Sess 4. No. 1.) all pleadings are required] to b« specific. The duty is laid on the J idge m each ■ distric of the rVirt of obtaining from the p-.rtics orthose who appeal oi their b?half, statemonts of the material facts of their case, and so ascertaining, before the trial, what facts are really in issue. These elements are sometimes reduced to wiiting by the Judge himselt ; but m cases of greater nicity, statements drawn by or b_h\lf of the parties are sometinms avlopted Vy the Judge. These specific st.itenvnts of the material tacts. a\ erred or denied are the pleadings. As to the pLiintin the facts thus stated, accord-ng to his own boliet, ?re therefore stated in that one form which he believes to be true; anv variance at the trial between the case so stated and the evidence being L'ft to be romedicd by amendment if necessary. If out of the whole statement, taken together, a good cause of action is established, the plaintiff recovers in respect thereof. In this way, the object which was aimed at by the English rules of 4, W. 4, has T think, been attained ; namel y« that several counts should not be used except for the purpose of setting for the distinct causes of action. _ In thi* particular case, the plaintiff's ca«-e was put in writing by the Judge in the usual manner. The defendant's pleas were drawn by himself. Now, in putting this declaration in writing, I certainly did not conceive that it consisted of more cou»ts than one ; nor do I find any words which have the appearance of introducing a second count ; nor in the pleas drawn by the defendant is there any reference to any distinction of counts. Both the first plea a> d the further plea are pleaded generally. Nor during the course of the trial was there any indication of its being supposed by either party that there were more counts than one in the declaration And I expressly put it to the jurv, as one point in issue, whether the defendant instituted the proceedings against the plaintiff without probable cause and maliciously. The notion of there being two counts in this declaration appears to me to be feuggeatnd now for the first time, and is, I think, without any foundation. It is unnecessary therefore to consider the case of Holt v. Scholefield. cited by the defendant's counsel, or the alteiation which later decisions have made in ihe xule there laid down. There can bo no rule.

The Buckingham F\mily. —We invit a attention to thi* family concert, which will take place, at the o<ld Fellow*s Hall, this cloning, weather permitting. They have issued a very inviting programme, which appeal* in our advertising columns . from the g neral satisfaction gnen on the last occasion, may he anticipated a more th-m onhnary tre.it, we lec-oui'aeml those who ha\e not heard them to judge for themselves.