SUPREME COURT—IN BANCO.

Otago Daily Times, Issue 2118, 18 November 1868, Page 2

SUPREME COURT—IN BANCO.

Tuesday, November 17th.

(Before His Honour Mr Justice Ward.) the water works company and their

contractor.

Mr Jamea Smith applied that an order of reference in the case of Proudfoot v. the Dunedin Water Works Company, might be made a rule of Court with the view of enforcing the award.

The order was granted. STAMPS ANO BILLS OK EXCHANGE.

This case came before the Court as ani' argument on a bill of exceptions to the ruling of Mr Justice Chapman, at; thetrial of the cause. Mr James Smith appeared for the plaintiffs, the Bank of Otago, and Mr Macassey, with Mr .Haggitt, for the defendants, Royse and Others. The action was originally instituted to recover the amount of'a series of bills of exchange, L9OOO, and the plaintiffs obtained a verdict for. that sum. The bill of exceptions involved the correctness of the Judge's summing up at the trial on certain questions raised under the Stamp Act. The case was part argued after the trial before Mr Justice Chapman, bnt inasmuch as he -was about to leave for England, it was agreed that the matter shonld stand over for argument until the Court of Appeal had given its decision on. a similar question*, in thb case of the Bank of Australasia r. Iteid and

Others. Tho judgment of tho Court of Appeal in that caso having been to thet effect that i ills could be 3tampod br the holder after they wero made, Mr "Macassey stated yesterday that iio scarcelysaw how iho presont caso could bo substantially distinguished from tho Bank of Australasia v. Reid. After somo argument, Mr Macassey seemed to think it was useless discussing the question further, intimating that the caso of tho Bank of Australasia v. Roid was likely to undergo revision before another tribunal. Another question aro3o on this bill of exceptions, which was not touched by the Court of Appeal—a question under which the defendants wero entitled to tho judgment of tho Court. The fifth pica of the plaintiffs should not have been found in their favour. The ."fudge had previously directed tho jury to find issues on that plea in favour of the plaintiffs. He (Mr Macassey) contended that the facts stated in tho bill of exceptions clearly showed whether tho plea wat good or bad; that tho issues raisod on tbe plea ought to have been found in favour of the defendants ; even assuming tho plea was bad, and assuming that it was even in favour of the defendants, the plaintiffs could subsequently movo to enter up judgment non obstante veredicto. The question was merely one of costs, bufc if the facts alleged in tho plea wore duly supported by the evidence, thero was no reason why tho plea should not have been found in favour of tho defendants. His Honour hero pointed out that tho finding of the jury was inconsistent with tha facts stated in the bill of exceptions. The bill of exceptions stated that tho bills sited upon had been drawn, accepted, and endorsed without being stamped, whereas the jury thought thoy wero stamped ; and, thorefore, whatever remedy the defendants might hive on tho application for a\ new trial, ho scarcely saw how ho could niw discuss the question raised on a bill of exceptions containing theso conflicting materials. Mr Macassey suggested that the argument on the bill of exceptions should Btand over until ho could apply for a new trial. Mr Smith referred to the proposal as being unprecedented. Mr Macassey again urged that he might be allowed to waive tlie point regarding the Mil of exceptions, and to make an ex parte. application for a rule nisi for a new trial, on the ground that tho issues on tho fifth plea should havo beon found for the defendant. Whero the plaintiff, instead o£ objecting to the defendants' plea on demurrer wont to trial on it, tho dofondant, although his plea was bad, was nevertheless entitled to havo the questions raised tried, in order that ho might get costs, and tho expenses of tho witnesses who--wero brought to support it. Whatever tho legal effect of tho plea, it was practically and substantially proved, and forthe mere purpose of costs, however insignificant a question, the defendant was entitled to have a verdict entered up on the issues in his favour. Mr Smi h suggested that it was not competent for his learned friend to do what ho now proposed. Notice should havo been given to the opposite side. His Honour asked if Mr Smith could show that Mr Macassey was not entitled to waive his bill of exceptions afc any time. Mr Smith replied that having brought the plaintiffs there to argue the matter, they wero in tho samo position as if issue were joined on demurrer, and the party who raised it had intimated an intention to withdraw. By withdrawing tho bill of exceptions tho plaintiffs wero. put in a very unfair position. His Honourcould not see how tlio plaintiffs could be placed in an unfair position if entitled to costs. If so, thoy would be allowed them as a matter of course. Mr Smith replied that it could only bo dono by an order of the Court. There must be some authority for demanding costs from the opposite sido, under a rule of practico which waa expressed—and there was none such ; or, an order of tho Court might be given in a particular manner, and thafc was what was required in tho present case. How such an order could bo made, if the proposal from tho other sido were agreed to, ho could not see. His learned, friend having entered upon his argument, it was not competent for him to say he now withdrew tho bill of exceptions. His Honour considered that Mr Macassey might, if ho chose, waive tho bill of exceptions. Probably it would be aa well to allow the consideration of tho question of costs raised to stand over until the next sittings of the Court. It was pointed out that if tho plaintiffs would consent to a verdict on the issues being entered up in favour of tho defendants, the necessity of a new trial might be dispensed with ; but that that would be a matter for argument on tho discussion of the rule hereafter. His Honour then intimated thafc tho question of tho defendants' liability to pay costs of the bill of exceptions would stand over until next Tuesday,, when the question would be discussed, whether or not the defendants were liable to pay the costs of tho plea to waive the bill of exceptions. A BILL CASE. Argument for rule nisi and now trial in the matter of Bank of Otago (Limited) a. CampbelL Mr James Smith, with Mr Howorth, appeared to movo tho rule absolute ; and Mr Barton, with Mr Stewart, shewed cause. The case was tried before His Honour Mr Justice Chapman, in September last. The plaintiffs then sought to recover LIGO ICU lOd, tho amount of a bill of exchange, which was drawn by Walter Bell and Co., accepted by the defendant, and endorsed to the Bank. The defendant pleaded-that the bill was given for timber bought of Walter Bell and Co. j. that there had been no consideration except as to timber to tho value of L 33 14s; that the Bank were tho principals of Walter Bell and Co. in the transaction-, or that they were pnrtners, and L3£10s lOd was paid into Court. Mr Barton explained that the hearing of the case in September, resulted in a verdict being given for the defendant. Upon that verdict his learned friend, Air Smith, who then appeared for tho plaintiffs, moved for, and obtained a rule ntii, which was in the following terms :—lt is ordered that tho defendant, upon notice of this rule, &c, show cause why tho verdict obtained should not be set aside, and a new trial granted upon the following grounds:—l. That the learned Judge misdirected the jury on the trial of thin cause in instructing them that tbere was som&evidence from which they might infer that Walter Bell and Co. were agents for aud on behalf of the plaintiffs^ as alleged in the first plea of the defendant. 2. That' such verdict was against the weight of evidence. As hi* Honour was not tho presiding Jud^e when the case was tried in September, it, would be necessary for him (Mr Barton) in opening the pleadings, to Btate the nature of the evidence given on that occasion. There might be objections raised, in respect to it., by the other side; and unfortunately, in consequence of the extreme length of the trial, the vast amount of argument, interruption, and objections ■ taken, the Judge's notes were particularly meagre, although there was a full report published in the newspapers. His Honour having intimated that thei notes of th* Judge at the trial must be taken* the learned counsel explained tho natnr*

of the declaration mado by the p. .in'ilfs on that occasion, and read the evidence then adduced. That of the defendant was to the effect that he went to Oimaru on the morning after purchasing tin* timber. Bell gave hitn a bill of parcels for tho timber which was delivered to him, its totfil cost being L33 14s. He saw in the yard, after he returned from Oarnaru, timber which ho had bought and set aside. About the time that the bill became due ho went to tho Bank and offered to pay Mr Larnach the L 33 14s, but ho refused to tako it. Amongst the timber not delivered was about 800 ft. of skirting boards. He went several times for tho tirn'er, but wan told that the Bank had taken over the yard. Thero was never nny consideration for the bill fiven except tho timber he received. Ir Barton said that the first plea was simply a plea of agency as between tho plaintiffs and Walter Bell and Co. Tho eighth issue was as follows : —Was the bill of exchange sued on in this action drawn by Walter Bell and Co. on behalf of, and as agents for tho plaintiffs, as in tho first pica mentioned 1 — Answer : Yes. So that the wholo question in dispute wm as to whether there was any question of agency ; and all the other matters as regarded the delivery of the timber, Ac. wero not now involved. Tbe learned counsel then read several bills of sale which had passed between the parties concerned in tlio case, and contended that Bell and Co. wero tlio agents of tho plaintifts. He cited the following cases:--Burnwick v. Tho English Joint Stock Bank, 30, L.J., ex. 147 ; Hickman v. Cox, 27, L.J., Common Pleas, 129, and 3, Queen's Bench, N.S. 523 ; Same case in the House of Lords, 30, L.J. Common Pleas, 130; Bullen i». Sharp, 34, L.J. 175; Sam* caso in Court of Error 1, Law Reports, Common Pleas ; Redpath v. Wigg, 1, L.R., Common Pleas; and upon these he contended that, although the relations between the Bank of Otago and W. 801 l and Co. were simply that of mortgagor and mortgagee, and so intended between the parties themselves, that notwithstanding tho circumstances of the case amounted in law to a carrying on of the business by the bank, who used W. Bull and Co., as a conduct pipe to receive payment of their dot, and that tho jury we ro entitled, if they concluded that the defence was bcinj£ carried on solely for that purpose to find that tho Bank were the real principals, and that the defence was carried on solely for tlieir benefit. Mr Stewart, on behalf of tho defendant, submitted that if tho plaintiffs wero substantially interested in the matter entered into at length by his learned friend Mr Barton, they wore to all intents and purpoHcs principals, and that there was sufficient evidence advanced at the trial, to justify thorn returning the verdict recorded. It had been contended by Mr Barton, that the firm of Bell and Co., when they commenced business were not possessed'of funds ; tliat the capital which they used belonged to the Bank ; and that thoir business -*'as entirely under the supervision of tho Bank ; and that they had really no interest in the business, further than acting as managers on behalf of tho Bank. The facts on which ho relied as constituting an agency on tho part of Hell and Co. were—first, that one of the bills of sale transferred tho property to the Bank, and that tho Bank allowed a third party to treat them as owners. If the owner of property allowed :i third person to take possession of and to deal with ifc as that person's property, the real owner was thereby precluded from stepping forward and injuring the third party. Taking into consideration sill tlie circumstances of tho caso, ho thought there was sufficient evidence to justify the statement that an agency had been established.

At this stage of tho proceedings, His Honour intimated his intention to adjourn until the next day, whereupon Mr Smith said that several of the counsel retained in other cases to bo disposed of would havo to attend on the next day at the Resident Magistrate's Court, in connection with cases in which they wero engaged, and that ho therefore wished to ask His Honour if there would be anyobjection to an adjournment of tho Bane • Sittings until Thursday.

Mr Barton intimated tha' he had similar reasons for hoping that such au arrangement would be made.

His Honour replied that at the request of the counsel engaged, there would bo no difficulty in adjourning the case then before the Court, but there wero four other cases on the list. Mr Howorth remarked that M'Liskey ii. Carey was an undefended case, and that ho was'retained with Mr Smith iv the case of Harris v. Shanley. In tho matter of Jones v. Orbell, the counsel wero Mr Macassey and Mr Smythies. lt. was thon agreed to postpone tho hearing'of the cases M'Liskey v. Carey, and Harris v. Shanley, until Thursday, and to take the case of Jones 0. Orbell, to-day.