COURT OF APPEAL.

New Zealand Times, Volume XXXI, Issue 4885, 17 November 1876, Page 3

COURT OF APPEAL.

Thobkdat, Novembee 16,

j.avaautt* , *'' , - Before their Honors the: Chief Justice, Mr. Justice Johnston, Mr. Justice Williams, and Mr. Justice Gillies.) .. SHAW V. II'PHEESON AND ANOTHER. The Court sat at 11 o’clock, and proceeded •with the further consideration of the above case. . - . Mr. Macassey and Mr. Mouat appeared for the plaintiff in error, and Mr. Stewart for the defendants. 1 „ . , , Mr. Stewart addressed the. .Court onhehalf of the defendants in error, and submitted, in answer to Mr. Macassey’s moments, jl) that there was no proper record before the. Court upon which judgment in error could be given ; (21 that the Court could not consider any ground of error not specifically alleged m the memorandum of error ; (3) that no error .could be: shown in the record before the Courtand (4> that the proceedings in error were contrary to good faith. In support orhis last objection he proposed, under seotion4B of the Court of Appeal Act, to use an affidavit filed in the Court below on an application to stay the proceedings in error on the ground that they were not being prosecuted in good faith. As to the first ground there was really nothing at all before the Court; and, as illustrating this, he would, compare the repealed rule on the subject with the present one. The result of this comparison was evidently that the making up of the.record in error, as at common law, was contemplated. •His Honor Mr. Justice Johnston intimated that he did not think it was necessary that the record shotdd be made up as at common law, the rule making it optional for either party to have it so made up if they should think fit. • , His Honor the Chief Justice thought that “ as at common law” was used as a term of art, and was meant to make the. new rule more specific than the old one. • ~ . Mr! Stewart then proceeded, and said that the difference between the record for trial and the record of the action was that in the latter the issues and findings thereon and the judgment were added. Marshall v. Fleming and Jones v. Orval were both cases in error before the Court of Appeal illustrating this theory. In answer to the Bench, Mr. Macassey said that the form used corresponded almost entirely: with the posted used in England. Mr. Stewart then submitted that the record was quite incomplete, as it did not satisfy the requirements of the rules. As to his second ground, that the plaintiff in error was bound to confine himself to the matters stated in the memorandum of error, he would refer to section 40 of the Court of Appeal Act, under which the plaintiff was bound to deliver to the Registrar, a memorandum stating the grounds of error intended to be relied on. He would submit that the object ef this memoranduin was that the defendant might come to a determination whether or not he would go on with the proceedings. ' . ' , , His Honor Mr. Justice Gillies pointed out that Mr. Stewart was confusing the right of the plaintiff to raise a question outside the memorandum, and the right of the Court tp consider any question which might arise, whether in the memorandum or not. Section 4? distinctly provided that the Court should review the whole of the proceedings, and give judgment as it should be advised thereon; and section 48, in addition, made provision that judgment should be delivered without regard to the party alleging error. • Mr. Stewart then referred to rule 209, and to the case Cole y. Wise, L. Rep. 1 ,Q.B. 717, which was an appeal in the question before the Court. From “Chittys Archbold,”: 11th edit., p. 557, it would be seen that there should be-a statement of all the grounds of error intended to be argued. He apprehended, however, that it would be sufficient if some substantial ground of error was Mr. Macassey said that he would like to quote a case, as if he did no after his learned friend had finished he understpod it would give a right' of reply. In Clapham v. Atkinson, 4; B. and S., 830, objection was taken that the ground of error relied upon was; not alleged, but the objection was'jaot sustained,, the Court holding’that the counsel for the plaintiff in error might, as amicus curia, call attention to grounds of error not included in the memorandom, Thomdon ,v.. Blair, .which was tried in the Court of Appeal, also bore out the same principles. Mr. Stewart then proceeded to argue as to the point.whether.or not there was error, in the .'record. . Such .'error might: arise: on two grounds, (1), . error in the pleadings; or, (2),.* erkn .m the issues finding, or judgment. 'Under the rules of Court there were three species of actions,- viz., actions for Tnoney, actions; for specific,’’relief, and actions to recover specific lands or- chattels. He would point out that 5 the only difference in the two counts of the declaration was the difference in the dates, and that the present action was clearly an action for money. It had been argued by Mr. Macassey that a nolle prosequi should have _ been entered as to the dates of alleged trespass, upon which there was no finding. He would refer to “Bullen arid Leake,” p. 420, and submit that the payment into Court was quite proper, and that bhere was no necessity for the withdrawal of pleas, as suggested by Mr. Macassey.; Ou page 656 of the same work there was additional authority on the matter. In the case of payment into Court in England, the defendant leaving the pleas on the record affecting such payment into Court, the defendant would have to pay the costa arising out of the issues raised by such pleas. The only pleadings of consequence in the present action "were the declaration,; the sth plea, the, rejoinder, and the surrejoinder. By leaving his pleas, in,; after payment into Court, the defendant in the Court below bad to run the risk of whatever judgment was signed. In the notes to “ Saunders's Reports,” :p. 61* new edition, it was laid down that „ the defendant could pot plead double pleas. (Hence on payment into Court, ttie pleas relating thereto being left standing, each plea must be tried as a distinct iasne. In wise of non-acceptance by the plaintiff, the money paid into Court only amounted to a standing tender. Reference had been made to there being no distinction In judgments between debt and damages., It should be remembered, hdwever, that judgment came after the pleadings ’ The real distinction in the matter had been nointed out the day before, and, was that the payment into Court left the whole matter at large, consequently after the surrejoinder there was no inconsistency oh the record. It was laid down in “ Grey on Costs,” p. 813, that inconsistency of the pleas oh the record was no ground of error, and this was supported by the decision in Dneer v. Trebuer, 3 Dowling 133. As to the issues, the sth was the only one bearing On the action, and the findings of the jury on the other Issues were quite immaterial. The fact of the remittiter as to £3 showed that the plaintiffs below waived all rights except on the finding oh issue 5.. There, was, [ however, . nothing ■ in issue;. 2 or 3 to entitle the defendant below to a judgment : thereon,. as all; the facts not abandoned by the payment‘into Court were, found for ithe plaintiffs below. The, case of Drury v, Roberts, before referred to, illustrated this. / Under . the rules, issues were distinct from pleadings, and in 1854,, in the case of Goldie V. Mumford, Mr, Justice Richmond had hfeld that the New Zealand practice of making up,; issues.' differed from that in ' England. As : to the alleged grounds of errors in the judgment, he would : first deal with the question‘of the certificate for costs. His first contention rwas that there was no need for a certificate at all The plea of the defendant Cdhrt.below amounted to not possessed, or'perhaps' oven to liberum tentmenimi. This; raised a dispute. as to title, which ousted the jurisdiction of the inferior tribunals, and rendered a certificate unnecessary. Timothy, v. Farmer, 7 Com. Bench, 814, was a case in point, and. supported his. theory. Supposing that the certificate for costs had been refused to ttfe plaintiffs in the Court below, they could have entered a suggestion on the record, of trespass after notice, and this would have been quite sufficient, 'He would also contend that, under the District Courts Ante, and Resident Magistrates Acts, in the present case a certjfinecessary." From- the ■ practiceunder the Statute, of Elizabeth, as mentioned inChittys Archbold,” p. 475. it appeared that the Judge bad to certify. In caw* wider AQb:

to deprive of costs, but where the title to land came Into questio'n'the Judge couldnot certify: at all The Court also could not take notice of these particular Courts, aa they only came into existence in' certain districts by the proclamation of the Governor. He would submit, in any case,, that the certificate actually granted would be good for all purposes. The next matter was as tb the form of the judgment, under which two points suggested themselves, viz., should a nolle prosequi have been entered ? and should judgment have been signed for the full amount, or ought the moneypaidinto Court tohavebeendeducted? He would submit that the plaintiffs in the Court below did not become entitled to the money in Court until after judgment. The verdict of the jury was : a mere step towards, the right to be acquired. The words “shall recover” in the rules’ meant shall recover 'by judgment. , All the proceedings in an action for damages up to and including judgment, assumed that there was nothing in Court. . j His Honor the: Chief Justice asked if Mr. Stewart had anything to say as to Wallace v. ■ Goddard. . ; s Mr. Stewart submitted that that case was distinguishable from the present, inasmuch as it was on contract for a debt. In such a case, on payment into Court a .plaintiff became absolutely entitled to the money, whereas in, the present action the plaintiffs in. the Court below did not become entitled until after judgment. There should also have been a more complete record. All the Court had was the, .findings of the jury on .the issue signed by the Registrar. • ■ = , . ~ , ; His Honor Mr. Justice Johnston pointed out that judgment was signed upon the record, and not upon the issues.' ’ His Honor the Chief Justice asked was it from the Court or the plaintiff’s attorney, that the judgment emanated ? 1 ' ‘ ' _ i His Honor Mr. Justice Gillies remarked that the practice in the North was for the Judge to state at the trial a general verdict for plaintiff or defendant, or t 6 leave it to the parties to move in banco. . Mr Macassey said that the practice in Dunedin was for the plaintiff or defendant to sign judgment if there was no motion within the prescribed fourteen days., ■ . , , . Mr. Stewart then proceeded, and said that the judgment was simply on the issues, but what the plaintiff in error wanted was that the judgment should also be founded on what was not found by the jury. He would contend that the damages were for a series of consecutive wrongs, and the findings should not be separated. The case Apothecaries Co. v. Harrison, 12 A. and E. 42, dealt with the question of bonafides in proceedings in error, and the proper time to take the objection on this ground was On the argument on the memorandum.- There were no recent cases on the subject, but it appeared from Day’s Common Daw Procedure Acts that he was right in taking the objection at the present time. He contended that there had been a.breach of faith in that the issues had been agreed to by both parties, and the plaintiff in error should not now turn round and take objection to what he had agreed to. He had no further remarks to offer, and would leave his case in the hands of the Court.

Mr, Macassey then replied for the plaintiff in error, and said that as to the proceedings in error being quashed on the ground of bad faith, the application to quash should have been by motion and rule. Theobjeotion couldnot beraised during the present argument, as the jurisdiction had been admitted. He thought it was unnecessary to make any further remarks as to the bona fides alleged. As to the want of jurisdiction on account of there being no record before the Court, he would submit that the defendants-in error having concurred in stating the case could not now raise the objection. The only fault in the record arose from the fault of the plaintiffs below. The 155th section of the Common Law Procedure Act, 1852, entirely corresponded with the New Zealand practice. It was only when necessary that the plaintiff in error brought down the more formal record. It was a mere matter of procedure,' and ’in Paton v. Murray the decision fully justified his view. , The record objected to was the only foundation for the judgment signed by the plaintiffs below, and that judgment was now before the Court; As illustrating his argument, he would refer to the proceedings in Ewing’s case, which-was'a criminal-one,'and came before the Court in error The rule of 1871 should not be read literally, as his learned friend had suggested, and as every condition of the Court of Appeal Act had been complied with, he would submit that the judgment was correct. -The'proper course for the 1 defendants in errorto have adopted would have been to have moved for a rule tO, quash. He' would. not deal with the question ,of the right of the plaintiff in .error to go outside the memo;' rahdum, as their lordships seemed to think it was merely a question of costs, but simply refer to the case Carlyle v. "Whaley, L. Rep, 2 ,H. of Lds., 391. As to the nolle prosequi, he wauld submit as. before that the plea of judgment recovered was affected. The case of Lane v. Dixon, 3 Com. Bench, 776, arose on this proposition. As to the payment into Court, and the contention that it was a mere judicial tender, he would put a supposititious case.'! Supposing the only plea had been payment into Court, the payment into Court admitted a cause of action, and in Moorhouse y. Moore it was held that every plea must be specific;. In Foreman v. Dyer, which was tried in the Court of Appeal, it was decided that after judgment all difference between debt and damages ceased. The judgment, in either case w.is ; enforced in exactly”, thesame way... Reference should have been made ; in the judgment to the money in Court, and the amount recovered , should have been/set off by the sura paid into Court. Heffers v. Allen, L. Rep. 2 Excheq, distinguished between payments before and payments after judgment, and bore out his argument. The verdict; of the jury in an action for damages practically decided the ownership of the money in Court., He did not think that the question of . the certificate for costa called for further comment; and he would leave the; case in the hands'of the Court. • • • ,- j ■ • ■ . -

-The Court then adjourned till 11 o’clock next day., ~ . .. - , ' .