SUPREME COURT.—IN BANCO.

Otago Daily Times, Issue 5324, 13 March 1879, Page 3

SUPREME COURT.—IN BANCO.

Wednesday, 12th Maech. (Before his Honor Mr Justice Williami) Sjurt v. Broodbs and Sons.

Motion for leave to reduce damages, or for a new trt-1.

Mr James Smith, on behalf of the defendants, moved for a rale nisi. (1.) On leave restrsrod to strike nut the replication to the first pl«a, 01 the ground that it wai impropirly allowed at the trial, and to reduca damages under the first couns bj the amount foi.i d by the Jury ia excels of th-t paid iato Court. (2 ) Or faili ltr dunagea being to reduced, fora new trial oa the following ground* :—That the damages under the first count are excessively great. Seconlly. th« the learned Judtte mia lir.cttd the Jury in refu ing t> direct thorn that, exce t an r.-gndi 'he sum of £50 2i, t-iere was no evidence ol any amount due t > the plaintiff under the firf-t coui.t. Mr Smith asked also for a. new tial on the ground that the verdict on the Beeond ccu'it was agunst the Weight cf evidence, beciuse although A. J. Smyth vihs proved to be the agent of the defendants to tindtherain contracts, thc-ro was no evidence t) prove that lie wa3 authore Ito bud them by his tortuous acts; and secondly, that it was proved that A. iitiWurtw.is tie plaiuufl'a pirtnor in the woods and chattels, the subject of tho second couiit; and thirdly, it was proved t!»t the plki'itlff was a consenting jnrty to the rale of the said gjods and chattels which constituted tho alleged tort His Honor, in giving Judgment said :I do not Ihink the rule ought, to go on the fir-t ground. I think that the replication was properly added - that the parties were bound to the issue?, they I eing the questions the parties had com* to try, ami I whs otligod by stat-ts to make such amendment, as thß issues showed that the que>tion of dam»ges was one point of the trial. Tho rule ought not to go on that g ound, but you can take a rule for a new trial uuuer the grounds you have already given, viz. : that tie dimitres were excessivtly gre*t; Ihit th.re was tnisdiieclion ; that on the second count the verdict was ag iust tho weiuht o( evilence; th t. althaugh Mr Smyth was proved to be >n ageut for iho defendants to bir,d them by his contract), ha was n>t authorised to bind them by the tott complained of; and also upon the ground of the puroner&hip yuu havo mentioned. Rule nisi granted fur a new trial. IK UE , A SOLICITOR. Mr James Smith appliea for a rulo nisi, calling upon —, a solicitor, to answer coitiin affidavits, to pay the amounts in question, and tho costs of the rule. His Honor granted tho rule npplied for. RK THE BKNDIOO DKKP LEVEL Q-ARTZ-MININa COMPANY, LISUIBD. Mr James Smith moved for and obtained an order making a call if 3d ptr share on the cont Ibutoriea of the Bsndigo Deep Level Qu«tz mining Company. IIBSZIE3 V. ANDERSON. Motion for rule nisi lor a new trial. Mr Haggitt, fir tho plaintiff moved for a new trial of the above causa, on the following grounds:—l. That the learned Judge erroneously admitted evidence of a previous license to uildct tho express terms of lease i elled on by tho p'aintiff. 2. Tl at the findings of the Jury are bo defect vo thic the Court cannot give any judgment upon them. 3. Tint the damages aie excessively great. , His Honor, after hearing Mr Haggitt in suppcrt of his motion, faid : 1 have already disposed of the first ground in iho courte of Vie aigunoent. Ido not see how under the circumstances Ji could have avoided adml f.rg tie evldei.ee. As ti the other points, it Is not clear ihat the trjspast-es were confined to a small piece of the ground in di-pute. lam entitled to refer to my own knowledge of what took place at the trial, and notwithstanding the findings may bear the interpretation sought to be placed upon them, It is perfectly clear to metha1; the Jury d dm. an to give damogrfs i r trespasses over the entire run, and not to coutine them to the t mall piece of count-y in dispute. Had I thought otherwise, I should certainly have considered fie damage excessive, and should have granted the rula. As it 1», the ru'o must be refused. .Rule refused. MORRISON V. II'MKIL Motion for a rule nisi to enter the verdici for the plaintiff, pursuant to leave n served, fur the diff;rence between ihe amount duo under ■he eecurty and the value of the «ouds sold, or for a new trial. Mr M-cassey appeared to move for the rule and entrjd at length lijta tho fae s a->d law of thoiao. The case was tried at the last s tt ng but one, of the bup'eine Court, and aro.-e out of the failure of Stewart and Urittor, <>f lial' lutha. When on the eve of bankruptcy, the fi m gave a bill of s-le over their st:>ck-in rude, book debts, &c ,to &lei>n Dunne on 1 M'Neil, and tnis Iran a tion va.% impearhed lytho trustee in t)v> e<tate, on the ground that it wus a Iriudulent prefereiice. Din Honor granted the rule applied for. IiURKK V TUB COLONIAL IIA.NK OV NEW ZEALAND. M t mi f r rule nisi for a i.o suit. Mr Macaauey in tUn c se moved, iv purauanc: of

leave restrved at the trial, for a rula nisi cilling upon the plaintiff to i-how cinse why he should not be nonsuited on the ground that his account was not in funds when the cheque was dishonoured. Hia Honor, utter argument, gi anted the rule. CRBDITORB" TKUBIBB V I. N. WATT. Kule nisi to s» t aside the vi rdict of the Jury. Mr W. D Stewart, in the case of the Creditors1 Trustee of James Biack (debtor) v. I. N- Wait, moved for a rule nisi, culling opon the p'aintiff to fchow caaEe why the vrJict of the Jury should not be stt aßide, and a nonsuit entered. His Honor granted the rule. SMART V. BROGDKN AND SOSB. Application for a rule nisi to rescind a Judges order. MrW. D. Stewart, lor the plaintiff, moved fir a rule calling upon the defendants to show cause why the order of the Juige,obtained expartetor extendirg the time for the defendants to make application for a new trial, should not be rescinded. The grounds of the rule wera, that the order shoull not have been made ex parte, it aimuch ai it prejudiced the plaintiff by conbtitutinjj the a tlon ; and that the order had not been servea until nftir the time allowed for making an application for a new trial had expirjd. His Honor granted the rule nisi. The Court rjso at 5 30 p m.