COURT OF APPEAL.

New Zealand Times, Volume XXIX, Issue 4266, 21 November 1874, Page 2

COURT OF APPEAL.

Friday, November 20. (Before Sir G. A. Amey, Chief Justice ; Mr. Justice Johnston, Mr. Justice Richmond, Mr. Justice Gresson, and Mr. Justice Chapman.) BURNS V. THE OTAGO AND SOUTHLAND INVESTMENT COMPANY. Mr. George Cook appeared for the appellant; Mr. James Smith and Mr. Stout for the respondents. Their Honors took their seats on the bench at eleven o’clock, when The Chief Justice said the Court were of opinion that it would be unnecessary on the part of Mr. Smith to continue his argument, but that he and his brother Judges desired to hear Mr. Cook in reply to what had been said by Mr. Smith. Hr. Cook proceeded to comment upon Mr. Smith’s argument, stating that the fact of an action at law having been commenced in the case Small against Currie was of no moment, as being a surety he was entitled to have his obligation given up on payment of the money. Other parts in Mr. Smith’s argument were referred to. The Chief Justice, in delivering judgment, said that the judgment of the Court below was so elaborate, and had dealt so elaborately with the whole case, that he did not think it necessary to add anything to it, as the Court intended to uphold that judgment. It seemed to the Court that the respondents’ counsel had virtually to concede that the only relief to which he was entitled was to have the words “ without recourse,” or some other similar words written on the bilk The Court was of opinion that under the Supreme Court rules of pleading this ought not to bo granted, under the prayer for “ further or other relief,” as it was a relief wholly distinct from that prayed in the declaration. If the contrary practice were allowed parties might, at the last moment after long litigation, vary their prayer for relief, and thus cause unnecessary litigation and expense to the defendant. The appeal would therefore be dismissed with costs. Mr. Cook applied for leave to appeal to the Privy Council or other appellate Court in England. Mr. Justice Johnston said it was difficult to state to what Court appeal could be had. A long discussion took place upon the Order in Council granting leave to appeal to the Privy Council, and as to whether the Court of Appeal had any discretion whatever in granting the appeal Mr. Justice Richmond said the first part of the Order in Council would imply that they had no discretion, but must grant leave to appeal. The Chief Justice said the Court would consider the matter, and state on Monday what its decision was. Mr. Justice Johnston tod he did not know whether they should encourage delay in coming to the Appeal Court, because no doubt liti-

mints were desirous of having their cases decided as soon ns possible, and perhaps m some of the Otago cases a long time had not elapsed from the giving of the judgment appealed against to the sitting of the Court. The Chief Justice then stated that the Court would at its rising adjourn tiU Monday, m order to give, time to prepare judgments m the cases already heard. He took the opportunity of impressing upon the Bar the extreme inconvenience caused by the late penod at which many of the appeals had been sent up. He was under the impression when he left Auckland that there would be little business for the Court to transact, under which impression he made important engagements to be fulfilled toward the end of the month. Upon arrival in Wellington he found the list to be heavier than any yet presented to the Court, the disadvantages of which were twofold. In the the first place, it; compelled one of the Judges either to vacate his seat at the Court or to absent himself from other business of great importance, and then, again, it added greatly to the labor of the Judges in framing their judgments. Little time was available for examination of the facts of cases before hearing the argument of counsel, and the result was that the strain upon their minds was very severe. The Judges had literally worked night and day, and even then it was almost impossible to overtake the work. He hoped the Bar would keep this in mind in future. The advantage of an appeal being heard as soon as possible after the trial of the case was no doubt great, and this possibly led to the cases being sent up late, but he trusted the practice would be avoided wherever possible. The Court then adjourned.