NELSON BREACH OF PROMISE CASE

Nelson Evening Mail, Volume LXVI, 5 October 1931, Page 3

NELSON BREACH OF PROMISE CASE

TO BE HEARD BY JUDGE ALONE

Attention was drawn by his Honour, Mr Justice MacGregor, in a judgment delivered in the Supreme Court at Wellington, (o the difficulty of obtaining an entirely impartial jury in a small town where one of (lie parlies in an action is well known. The judgment was one in which he dismissed the motion by the plaintiff in an action for breach of promise of marriage that the case should he tried by a jury (reports the “Dominion”). Plaintiff was Ellen Veronica Bose Bell, of Nelson, and defendant was William Robert Millier of Dannevirko. At tlie bearing of the motion for trial by jury Air Scott appeared for plaintiff and Mr O. C. Mazengarb for defendant.

His Honour said that counsel for plaintiff had suggested that lie should follow the decision in a case in 1920 in which Air Justice Stringer had ordered trial by jury. On examining the report of that ease be did not think Air Justice Stringer bad even professed to lay down a general rule that actions for breach of promise of marriage should be tried before a jury.

On the contrary, bis Honour said, Air Justice Stringer's judgment commenced thus; “This is a motion on behalf of the plaintiff for an order that the action, which is one for breach of promise of marriage, should be tried before a jury. The action, being founded on contract, must according to the rules be tried by a judge alone, unless it is made to appear (the onus being upon tile party applying) that in the words of Rule 257 it can be more conveniently tried before a jury. Whether or not an order foi trial by jury should be made is in the discretion of the judge, and must be decided according to the circumstances of the particular case.” His Honour agreed with this statement of the law, and said that in the present case the one question for his determination was whether it had been shown that it could be more conviently tried before a jury than before a judge alone. In this connection the word “conveniently’’ should apparently be read so to include the term “justly”. His Honour said lie had not been satisfied by plaintiff that the present action could be more conveniently tried before n jury.

The action was at present set down for trial at Nelson, where plaintiff resided, and where her counsel quite legitimately insisted on its being tried. The defendant apparently resided in Daimevirke. What might happen in a ease of the kind had been forcibly pointed out by Air Justice Edwards, who, when referring to the possible inconvenience or injustice in certain cases of trial before a jury, had said: —“When the trial is fixed to be held in a small town, where one of the parties is locally well known, it is common knowledge that in such a case it is exceedingly difficult to obtain an entirely impartial jury.” “This difficulty might easily arise in the circumstances of the present ease, and should, if possible, be avoided in (lie interests o! justice,” liis Honour said. “The obvious way of avoiding it is to allow the general rule in such cases lo operate here, and to refuse (lie present application for exceptional treatment on the,broad ground Unit it lias not been made to appear that this particular case can be more conveniently tried before a jury.” In my opinion this action should be tried at Nelson by a judge without a jury.”