SUPREME COURT.—IN BANCO.

Otago Witness, Issue 712, 21 July 1865, Page 14

SUPREME COURT.— IN BANCO.

Wednesday, July 19th.

(Before their Honors, Mr Justice Richmond

and Mr Justice Chapman.)

Heymanson v. CiiEVE. — In this case, the Court gave judgment, discharging the rule nisi for a new trial.

Kirby v. Harris —Mr Main moved for leave to discontinue this action without ■costs. Leave wav refused ; and it was ordered that the action be dismissed, the costs of motion, less costs of the respondent's affidavit, being allowed to the defendant.

Cornish v. Form an, — In this case, a rule nisi in arrest of judgment had been obtained on the grounds — 1. That the plaintiff was not damnified by any alleged overcharge, as fees, by the Sheriff.— 2. That the Sheriff was not bound to show to the plaintiff an inventory, or to furnish a .copy of such a document. Mr Barton showed cause, and Mr Gillies and Mr James Smith were heard in support of the rule. The Court took time to consider its judgment. TIEBNAN AND PARTY V. WHEELER AND Party. — The question for the Court herein was, whether a decision by Mr Warden Hickson was supported by the evidence. The plaintiffs summoned the defendants before the Warden, for having, at Dunetan Creek, on the 29th May, unlawfully damaged a registered tail-race, by water flowing from their (the defendants') head Tace, whereby the plaintiffs lost gold and siffered damage to the amount of L3O. The case was tried before four assessors, and the Warden gave judgment for the plaintiffs, damages, L2O. Mr Barton appeared for the appellants (the defendants below), the respondents not being represented. Mr Justice Chapman said that there was a very important preliminary question, and one which had been raised in Victoria. Did the case come before the Court as a Court sitting in Banco, to say whether or not the matter had been properly decided below, upon the evidence ; or did it come in the nature of a new trial, the Court sitting to determine matters of fact as Well as matters of law ? In Victoria, it had been decided that when the decision of a Warden was carried by appeal to the Judge of the Court of Mines, it was in the nature of a new trial ; tut he apprehended that it would not be co here, the Court not having the advantage of assessors. The Court here, he thought, were merely the Judges of law, bound to consider the evidence only so far as they would upon a motion based on verdict against evidence. Mr Justice Richmond coincided. The jurisdiction of the Privy Council in appeal from the Supreme Court of Calcutta, was analogous ; and there the point had frequently been decided. Mr Justice Chapman said that the point involved might make this important difference :—ln: — In one case, the Court might not be quite satisfied with the decision, "but might say that they did not feel justified in disturbing it ; while, in the other, they would go into the whole of the evidence, and decide as they thought the jury ought to have decided. Mr Justice Richmond said that the Court had a great difficulty here, because the Warden had simply shovelled the evidence into Court, and there was no means of knowing how much the assessors believed or disbelieved.

Mr Barton said that he was in as great \ a difficulty ; for he had only received the evidence, and he did not know how to argue a case in which the evidence was so conflicting. Mr Justice Chapman said that copies of the evidence had not been sent to the Judges. But it was not, perhaps, necessary that they should impose that expense in all small cases; and they had been content to take the draft as* sent to the Registrar. Mr Barton argued that there was nothing in the evidence to show that the appellants were responsible for the damage alleged here; nor anything to show that the alleged loss had been sustained. It did appear that the appellants had allowed the respondents to run water from one race to another, aud as that must be assumed to have been for the benefit of the respondents, they ought to bs held liable for seeing that the appellants' embankment was made good again. On the conclusion of his argument, the learned counsel said he thought he ought to ask the Court ■whether the Warden ought not to be called upon to state a case for the opinion of the Court.

Mr Justice Richmond thought that, the question being simply whether the decision was supported by the evidence, the Warden could not have done other than he had done. The Court thought that the decision below should not be interfered "with. Two points had been made. The first was, that there was no cause of action at all — nothing to show a duty on the part of Wheeler and party to maintain the embankment. The Court dissented from that. They thought that, prima facie, the owner

of a race was bound to maintain the embankment of it: those who diverted water from its natural course were, prima facie, bound to prevent its doing harm. The Court thought that, for a cause of action, Tiernan and party had shown enough, when they established that water from the appellants' race had made a breach in their own, and had flooded their tail-race. The second point taken for the appellants was still more open. There was evidence to have justified the assessors in rating the damage still higher than they did rate it ; for several witnesses for the respondents (the plaintiffs below) swore to L3O as the amount of the damage done; and though they did not give in evidence the materials on -which they had founded their estimate, it was competent for the assessors to have believed them to the full extent, and the witnesses were present to have been crossexamined. The Court did not see any reason for disturbing the decision in the Court below. The appeal must be dismissed with costs.

Isaac akd Another d. The Bank, or New Zealand. — Mr Justice Chapman eaid that this case stood in the list, for argument for a rule absolute, but it had not been mentioned.

Mr Barton : That case is not to be gone on with, your Honor. Mr Justice Chapman : I have examined the case of Davis v. Bourehier, quoted when the rule nisi was applied for ; and I think that if you will read the statement of the ca c c with the arguments you will — although the judgment alone does not make it clear — come to the conclusion that the view I have taken is the correct one.

Mr Barton : There is a pomt — and it ia one of very great importance — which we don't want decided yet, which is this — Whether a Bank having discounted a bill, has any right to hold property of its customer as agains* that bill. Mr Justice Richmond : I have a strong impression that the privilege of bankers, as it has been allowed by the commercial world, goes to a very great extent, not to say more. It seems to me that the Hen of a banker, if it exists to the extent alleged — and the authorities appear to grant that it does — exists to au extent which is one of great inconvenience. I should have thought that it was inconsistent with sound commercial principles; but it seems to have been adopted by the commercial world.

Mr Justice Chapman : In Davis v. Bourehier, what are called "advances" were moneys advanced upon discounts ; and what is called " the general balance " includes accruing liabilities on discounts. Mr Barton : The question is sure to be raised shortly, your Honors, whether any thing that can be called advances can include discounts.

Mr Justice Richmond: My brother Chapman observes, and I agree with him, that when you read the facts in Davis v. Bourehier, the case does import that a discount i 3 an advance.

Mr Justice Chapman : The case fully supports the judgment at Nisi Prius o Chief Justice Abbott, in the casein 1, Esp. 66. Taking it altogether, it does seem to put beyond all question that under his lien a banker has a right to hold all belonging to his customer that he can grasp, until all current liabilities are finally determined.

Mr Barton : Then if a man goes to open an account with a discount for L 1000; say, the Bank may keep both money and bill, telling the man that they hold the money as security against the bill.

Mr Justice Chapman : No. It has been very well observed, that sometimes, in law, we see two concurrent streams of judicial decisions running apparently, at first, nearly parallel, but at last converging, and that when they come to meet it is impossible, prima facie, to say which stream will have the greater strength, so as to prevail with the Courts. The judgments in favor of the banker' 3 lien appear to prevail ; but, it must be subject to one exception, and that is, that where a bill is deposited for a special purpose, that special purpose must be answered, but still there is a contingent liability upon such a bill. If I take a LIOO bill to a banker and say, " Will you discount it ? " and he says, " Yes," the transaction amounts to this, " Will you give me money on this bill ?" How ? As an advance of money : and the banker could not hold the money and say, " Now, I have discounted the bill, but I will hold the money." Still, however, there is a contingent and future liability, that will give the banker a lien over any securities belonging to his customer, if he holds any. Angus v Clements. — This case was mentioned, but was ordered to stand over.

Eccxks v. Taylor (Superintendent of Southland) — Mr Gillies asked if the Court had decided what was to be done as to the rule nisi in this case : it affected the question of appeal. Mr Justice Richmond: Yes; we discharge the rule, so as to leave you (the defendant) at liberty to appeal. Mr Gillies asked for leave to appeal; and the Court granted it. Mr Barton suggested that leave should only be given on notice.

Mr Justice Richmond said that where the Court was anxious, as in this case, that there should be an appeal, they could not think of putting the. appellant upon terms.

Mr Barton said that there was another case, Mackenzie v. Menzies, in which he might a-k for a different decision if it should come to an appeal. Mr Justice Chapman : In that case, I think there would be no difference of opinion between us ; because I think that I should be with Mr Justice Richmond on that part of the case which distinguishes it from Eccles v. Taylor, my difference remaining, so far as the material part is concerned.

Mr Barton : Before an appeal was allowed in that case, I should probably a9k your Honors to be heard.

Mr Justice Richmond : I had overlooked that Mackenzie v. Menzies stood for judgment. (Their Honors having conferred) It may be convenient for U3 to say that we discharge the rule in that case, as from to-day, on exactly the same ground as in Eccles v. Tayloi — that the Court is not agreed.

Mr Justice Chapman concurred. If the parties did not desire to appeal, the rule would be treated as simply dropped. The Court was adjourned.