THE APPEAL COURT. WELLINGTON, October 19.

Otago Witness, Issue 2330, 27 October 1898, Page 20

THE APPEAL COURT. WELLINGTON, October 19.

The case of the Bank of New Zealand v. Fleming was argued in the Court of Appeal to-day. This is a case in which the responj dent obtained judgment against the appelI lant bank in the Supreme Court at Invercargill for £2000 as damages for the dishonour of certain cheques. Respondent is a stock dealer, carrying on business in Otago and Southland, and had an account with the appellant bank at Invercargill. In August 1897 respondent arranged for an overdraft ; for £1200 to 30th September, 2250 sheep of i respondent's were in the hands of the Southland Frozen Meat and Export Company (Limited), and certain pelts being mentioned as assets on the realisation of which the overdraft either would or might be expected to be cleared. Respondent drew up to the amount named. Subsequently on the 6th September, a Saturday, respondent was desirous for drawing further cheques for something over £600 for further purchases of sheep. He arranged with the Freezing Company to borrow £1000 from them, which the company's manager undertook to lodge to his credit with the bank. Respondent left Invercargill on the Saturday, having drawn cheques for over £600 against the money to be so lodged. The manager of the Freezing Company saw the bank manager the same day, and told him that lie had agreed to lodge £1000 to respondent's credit, and asked whether it would do as well to lodge a store warrant for the sheep of respondent held by the company. The bank manager assented to this, and a store warrant for 2250 sheep, the same number as had previously been mentioned by respondent to the bank manager, was made out and lodged with the bank. The cheques which had been drawn by respondent against the £1000 agreed to be lodged by the company were presented on Monday, Bth September, and were dishonoured. The bank manager afterwards, however, saw the broker of respondent and made inquiries, and then paid the cheques. Respondent alleged, however, that his credit and business were ruined by the temporary dishonour which had taken place, and brought this action. Respondent's case was that the bank entered into a new contract on the 6th September to honour further cheques against a store warrant deposited. The bank's case was that the proposal of the manager of the Freezing Company was to pay £1000 as the proceeds of sheep with the company in reduction of respondent's overdraft of £i2OO, and that instead of this the bank accepted a store warrant as security for that overdraft. The jury accepted respondent's view of the facts,and awarded him £2000 damages. Respondent moved for judgment on the findings, the appellant bank moving for a non-suit, or judgment for defendant, or a new trial. Mr Justice Pennefather dismissed the bank's motion, and entered judgment for respondent for the amount of the verdict and costs. From this decision the bank now appeals. The appeal is being heard by the Chief Justice, and Justices Denniston and Conolly. Mr Ollivier appears for the appellant, and Mr Sim and Dr Findlay for the respondent. Argument for the appellant was noo concluded when the court rose this afternoon. October 20. Argument for the appellant was still proceeding in the case of the Bank of New Zealand v. Fleming in the Court of Appeal when the court rose this afternoon. The whole of yesterday and most of to-day have been occupied by the arguments of counsel for the bank on the questions of whether there was any evidence of contract to honour the cheques in question, whether it was competent for respondent to ratify the alleged contract entered into by Thompson as his agent after it had been broken by* the bank, and whether the bank was stopped by its conduct from setting up want of authority on the part of Thompson. Counsel was urging the question of the right to a new trial on the ground of the damages being excessive, and of the wrongful admission of evidence when the court rose. October 24. The Court of Appeal was engaged today in hearing argument of case of Russell v. Minister for Lands. This case was before the Crown at the last sittings, and arises out of the taking compulsorily by the Government under the Land; for Settlements Act of the Hatuma estate, in Hawke's Bay. For the respondent it is contended that the compensation payable should be assessed on the basis of the market value of the property, but the claimants contend that further compensation should be allowed for the 'fact that the land was taken compulsorily, the cost of reinvesting the purchase money, and the loss sustained on the stock, which has to be sold. Mr Sainsbury, of Napier, appears for the claimants and T)r Findlay and Mr Baldwin for the Minister for Lands. The case is likely to last some ; time,