COURT OF APPEAL.

New Zealand Times, Volume XXXI, Issue 4884, 16 November 1876, Page 4

COURT OF APPEAL.

Wednesday, November 15,

(Before their Honors the Chief Justice, Mr. Justice Johnston, Mr. Justice Williams, and Mr. Justice Gillies.) SHAW V. M'PHEESON AND, ANOTHER.

The Court of Appeal sat at 11 o'clock and at once proceeded to the consideration of the above case, which was an appeal, in error, from a judgment of the Otago and Southland district of the Supreme Court, the verdict having been for the plaintiffs, the Messrs. McPherson.

Mr. Macassey and Mr. Mouat appeared for Shaw, the plaintiff in error, and Mr. Stewart for McPhersons, the defendants in error. His Honor Mr. Justice Johnston explained before the case was gone into, that after spending a great deal of time in looking over the printed statement of the case prepared for the Court, he could make nothing of it, consisting as it did of a series of blunders.

Mr. Stewart explained that the statement had been prepared by the plaintiff in error, and he noticed that the words “ by consent” had been taken out.

Mr. Macassey then stated the case, explaining that the defendant in the Court below was now the plaintiff in error. The action had been brought against his client on the following grounds—lst, A personal trespass on the land of the plaintiffs from the Ist August, 1871, to the 7th October, 1874; and 2nd, trespass by cattle on the plaintiffs' land from the 7th October to the 13th November, 1874. The defendant pleaded to this—lst, That there was no trespass; 2nd, that the land did not belong to the plaintiffs; 3rd, that as to the personal trespass the land was the defendant’s own freehold ; 4th, that the defendant had the plaintiffs' permission; and sth, that the plaintiffs were not entitled to claim the land, for the following reasons : ( a ) That the land was marked out and included in defendant s Crown grant before the plaintiffs' .was so marked out; (b) that the defendant purchased part of the land from the plaintiff, and the plaintiffs showed the defendant the boundary which he now claimed as the proper boundary; (c) that the plaintiffs erected a fence on that boundary, and swore in Court that it was the true boundary, and recovered judgment; (d) that the block boundary line between the plaintiffs and the defendant was a straight line, and the plaintiffs had on several occasions joined with the defendant in erecting boundary fences along that straight line ; and («) that the trespasses the plaintiffs spoke of were merely the erection of boundary fences on the proper boundary. The replication of the plaintiffs to the defendant’s pleas was in

effect shortly as foliowsj—lst. a direct traverse;, * and 2nd, that .what-the defendant said was.', true, but that in July, 1870, he agreed to alter < the boundary; and moreover;that the plaintiffs, ‘ claimed for trespasses beyond the boundary., r The defendant rejoined by an admission of the -' new assignment of trespass beyond the. boundary line, and by payment of £ls- into Courttherefor. . The surrejoinder of the-plaintiffs was a refusal of £ls as insufficient. There were twenty-seven issues, which appeared im ■ the printed statement, but these were ■ abandoned for the five which immediately fdllowed, and were, with the findings of the jury,, as follows—(1) Was the land south of the line of the gorse fence, and north of the line of the old fence, part, of section 30 of block •VII, Clarendon district, when sold by the Crown to the plaintiffs? No. (2) Were the plaintiffs in actual and exclusive occupation, of the said land during the period commencing from January 1, 1872, to October 7, 18741. Yes., (3) Were the plaintiffs in actual and exclusive occupation of the! said last mentioned, land during the period from 1 October 7,' 1874, to November 13, 1874? Yes. (4) What damages (if any) are the plaintiffs entitled-to-recover for trespasses on land between the lines of the gorse fence and the old fence? £3 ; and (5) What damages (if. any) are the plaintiffs entitled to recover for trespasses other than personal trespasses on land of the plaintiffs south of the line of the old fence ? That is to-say—How much for such trespasses . before October 7 ? £SO? How much for such trespasses after October 7, 1874? £lO. Ver-, diet for the plaintiffs. Damages, £63. C. H. Mottram, Associate C.J. . His Honor Mr. Justice Johnston pointed out that a matter suggested. itself to him, as worthy of consideration, viz., that the record’ was not perfect;. The rules required that the Registrar or Deputy-Registrar, should enter the issues and the findings of the jury thereon. , on the record, and the record with such entries . should be the record of the trial. Either-" party might require a more formal record; but in the present case, this had not been required;, and it appeared that instead of the signature ; of the Registrar or his deputy, there, was that of a person calling.himself Associate, and the , rules had not consequently been complied’ with.

His Honor Mr. Justice Williams explained that if Mr. Justice Johnston’s view was thecorrect one, then there was no record in any action which had been tried in the Otago and Southland district for the last six or seven years. Mr. Macassey then proceeded to argue thatit was the duty of the plaintiffs in the Courtbelow, to see that the conditionsof the rules! were complied with, before signing judgment. It was quite sufficient that they had a judgment duly signed, and under ’ the seal of the Court, for the plaintiff in error to makeuse of the objection ■ pointed out by Mr. Justice Johnston. He would quote the' case Cole v. Wise, L. Hep., 1 Q. 8., as showingthat the plaintiff in error might make use of the objection. As further illustrating the principle, He would cite a new Zealand cas.e, Millar v. Wanganui Town. Board, where the judgment had been given on grounds not' taken by counsel, or included ,in the grounds on which error was brought. He submitted' that the proceedings of the plaintiff in error had been in accordance with the rules. His Honor Mr. Justice Johnson .intimated that the Eegistrar had signed the judgment, although not the record. Mr. Macassey ■ said that the grounds oferror were (1) that the issues . were not sc* framed as to be conclusive pi the matter in controversy between the partie's ; (2) that the issues and findings therein were irrelevant to the pleadings, and so vague and contradictory that n® conclusive judgment could be entered upon them; and (8) that the jury appeared to have awarded damages on the sth issue for sums assessed severally in respect of both, counts in the plaintiff’s declaration, while it ap-. peaied by the record that the damages on the sth issue should have bsen assessed in respect of the damages claimed in the second count only. Judge Chapman had held that no posted was ordinarily necessary in error, and he would submit that the record alone was what was required for the purpose of the present proceedings. The plaintiff below having signed judgment, had to take the risk of the informality. The question now, arose, was the case properly before the Court of Appeal. His grounds of error were matters which did not arise at the trial, and the findings on the issues were immaterial to him, . His Honor the Chief Justice pointed out that defective findings were a ground for a new trial.

Mr. Macassey suggested that a new trial was virtually the same in effect as a venire de_ novo. He would ref er to “ Bacon’s Abridgement’ Title Error, 2 A., p. 69, as showing that error lies in final judgment. He relied upon error in law, and upon the findings.: He would first of all contend that the re joinder was bad. Mr. Stewart objected to Mr. Macassey going beyond the grounds stated in the memorandum of error, but the learned Judges _ruled' that Mr. Macassey was entitled to proceed, making a note, however, of Mr. Stewart’s objection. Mr. Macassey then quoted from “ Bullen and Leake,” p. 556, as showing that there should be a relinquishment of pleas on payment into Court as to a cause of action newly assigned. His Honor the Chief Justice pointed out that there could not be two sets of pleas. Mr. Macassey then proceeded to argue that the finding on the issue left a period as to the trespasses unaccounted for, viz., between Ist August, 1871, and Ist January, 1872. As to this period, trespass was raised on the pleadings, and there was actually no finding. As to the trespass on which there was no finding, a nolle prosequi should have been entered, as, in the event of another action being brought, the plea of judgment recovered would be affected. Roberts v. Drury, p. 210, vol. 2, Ct. of Appeal Cases, was an authority that defective issues were not a ground for an arrest of judgment.

His Honor the Chief Justice said that Blackstone held that if: there was no ground' for arrest of judgment there was ho ground for error. The jurisdiction of the Court as to error was the same as that which existed in England previous to 1816. ' Mr. Macassey pointed out that there was a difference between issues formally defective and those defective in substance.

His Honor the Chief Justice said that in the latter case it would be a ground for arrest of judgment under the rule of Court. Mr. Macassey then resumed his argument, stating that he would next proceed to the judgment. The first point was, that when a sum of money was paid into Court and not accepted, the whole matter was at large. The plaintiff in signing judgment : should have taken care that the sum of money in Court was deducted from the amount of the judgment. A question might arise, in the event of the bankruptcy of either of the parties, as to whom the money in Court belonged. As illustrating this principle he would cite Wallace v. Goddard, 2 M. and G. 912, where judgment had been signed without taking into account money paid into Court, and'the plaintiff had only been allowed to amend the postea on payment of the costs of the writ of error which had been brought. His Honor the Chief Juctioe pointed out that there was a difference between the New Zealand and English law in this respect, in England no distinction being made between debt and damages. Mr. Macassey then quoted rules 294 and 295, arguing that the recovery therein mentioned did not refer to judgment, and that under the circumstances the case cited would apply. There should have been a remittiter of the sum paid into Court. His Honor Mr. Justice Johnston thought that the recovery was evidently the judgment. Mr. Macassey then argued that on the signing of judgment the distinction between debt and. damages ceased. Another point was that there should have been two certificates for costs, (I.) to satisfy - the requirements of ; the District Court Act, 1858, and (2.) to satisfy the requirements of the Resident Magistrates Act, 1867. The case of Marshall v. Fleming, reporthd in the Court of Appeal Oases bore "out this theory, and the matter was also discussed in “Grey on Costs,” 163. Longuet v. Kingswell, “ N.Z. Juriat,” 188, was also an authority on the, subject. There was clearly a difference in the-

two statutes referred to, and he would submit that two certificates were required, His Honor the Chief Justice pointed out that the pleadings showed a dispute as to title which Rousted the'jurisdiction of the inferior tribunals. .

Mr. Maoassey submitted that a mere assertion of title would not oust their jurisdiction, and quoted Austin v. Dowling, L. Hep. 5, C.P. 534. I In answer to his Honor the Chief Justice, Mr. Macassey said he did not know whether the certificates formed part of the judgment in England 4' but the case of Marshall v. Fleming, before referred to, bore on-the matter. In that case the inferior Court would not have had jurisdiction ; but it shouW be remembered that being an action for malicious prosecution, the plaintiff would not be entitled to costs, .unless express malice had been found, by the jury. Mr." Mouat then , addressed the Court, explaining the interpretation which might be put upon the issues, and the findings of the jury. His : Honor Mr. Justice Gillies suggested that Mr. Mouat and Mr. Stewart should come to some arrangement as to the boundaries, &c.; but Mr. Mouat expressed an opinion that this would be impossible. Mr. Mouat concluded his argument by commenting on the fact that the damages on the fifth issue should have been assessed in respect of the damages claimed in the second count only.

The Court adjourned a little after 4 o’clock until 11 o’clock next day, when Mr. Stewart will reply on behalf of the defendant in error.