SUPREME COURT.

West Coast Times, Issue 838, 30 May 1868, Page 5

SUPREME COURT.

WESTLAND DISTRICT.

IN BANCO.

Friday, May 29, 1868. (Before his Honor Mr Justice Richmond.) His Honor took his seat on the Bench at 10 a.m, THOMPSON V. THE GBEYMOUTH AND SALTWATER CBEEK TRAMWAY COMPANY.' In this case Mr Harvey moved for a rule to enforce the award. Eule granted. SAMUUL V. JACKSON. Mr Harvey, for defendant, moved for a rule to show why the verdict of the jury should not be- set aside, and a new trial had on the ground that the verdict was against the weight of evidence. His Honor said that he had no doubt but the verdict was against the weight of evidence and the defendant certainly was entitled to go to a second jiuy, although their finding might be similar to the first. It was plain to his mind that the jury had made a mistake, and as such he had no hesitation in granting the rule. Eule nisi granted. JACOBS V. MARKS.

Mr Harvey mentioned this case, and asked whether according to rule 204 of the Rules of Court, defendant was not entitled to set off the costs of the nonsuit on the first count in the declaration against the amount of the judgment on the other count.

His Honor said that the matter had better come before him in Chambers. Ho was not prepared to decide the question offhand. Mr Harvey said he would adopt that course and serve the other side with a summons to appear. i WAITE V. SWEENEY, DEMTJEBEE. This was a demurrer to one ' of defendant's pleas. The plea alleged that before commencement of action, and at the time of the making of tho rule thereinafter mentioned, defendant had commenced an action against plaintiff for the recovery 6f a certain debt claimed to bo due from plaintiff to defendant, and other matters in difference were then depending between defendant and plaintiff, and thereupon by a rule of Court made on 6th February, 1867, in the said action, with consent of plaintiff and defendant, it was ordered that all matters in dispute between the parties should bo referred to arbitration, and the plea alleged that an award was made, in favor of defendant.

Plaintiff demurred on the grounds — 1. Thai it did not appear by the plea thabthe matters now in dispute were in dispute at the time of making the said rule. 2. That it did not appear that the matters now in dispute were referred to the said arbitration. 3. That it did not appear that tho matters now sued for had beeu adjudicated upon. Mr Eees, in support of the _ demurrer, argued that all matters in dispute mentioned in the rule only referred to tho cause then before the Court.

His Honor said that there was some authority that went to show that a transposition in the words would frequently make a great difference in the powers of the arbitrators.

Mr Button here called the attention of the Court to some such authorities — " Malcolm v. Erillanton, 2 T.E., 644 ; Smith v. Mueller, 3 T.E., 626 ; Eussell on Arbitration, 117.

Mr Rees cited a case, " Upton v. Upton," in which all matters had been referred to arbitration, and yet it was held that an action would lie on a cognovit giveu by one of the parties on the day of the arbitration, and not referred to any award. His Honor pointed out that the cognovit having been given on the day of the arbitration could not be considered as a matter in dispute, and the decision proceeded expressly on that view.

Mr Button replied that, by the Rule 3of the Supreme Court, particulars of demand wero part of the pleadings, and, by reference to the record, it was sufficiently clear that the debt claimed by plaintiff was all in dispute on 2nd February, 1867, and that as the rule referred to in the plea was elated 6th February, the alleged claim of plaintiff was in dispute at the time of making the rule. He argued that the three grounds of demurrer set forth by plaintiff were, in reality, but one. His Honor, in giving judgment, said that the point was an exceedingly fine one. That it did appear by the record thut the claim of plaintiff was in existence at the time of the rule mentioned in the plea. But as he thought the plea was not so explicit as to enable plaintiff to reply to it expressly, ho should allow tho demurrer, leave being given to defendant to amend.

Demurrer allowed with costs, with leave to defendant to amend.

BE ABBITEATION OB TIIE ARBITRATION OF TUB TOTARA AND JONEs'3 CREEK WATER BACB COMPANY (REGISTERED), AND PATRICK MOHAN AND EDWABD MEABS. Mr Button moved to make a rule absolute to enforce the award.

Mr Eees appeared to show cause on affidavits, alleging that an enlargement under tho submission for making the award had been made after the expiry of the time enabling the arbitrators to make it, and also going to show a revocation of the power of one of the arbitrators.

Mr Button objected that such matters could not be gone into, on the ground that no intrinsic matter could be enquired into, but any defect on the face of the award might be taken advantage of, and the affidavits referring to the enlargement would have been very well on a motion to upset the rule by which the submission and enlargements had been made a rule of Court. But at this stage tho Court could not enquire into that.

Mr Rees replied, that were cases which went to show that any matters which might be given in defence to an action on the award might be made use of in showing cause againßt a rule to perform the award. His Honor remarked that no doubt there wero cases which went to show that nothing outside the award could bo enquired into, yet there were later authorities tho other way.

Mr Button then applied for an adjournment of tho argument, on the ground that the affidavits on the other side were only filed yesterday, and there was not sufficient time to prepare answering affidavits,

His Honor said ho should certainly grant the application, as the difficulty on the other side looked, very ugly, as one of fcho arbitratoi'S, according to his own affidavit^ appeared to have acted a very strange part, nud it was not well to encourage the upsetting of awards on such circumstances as were disclosed by the affidavits. v . SAMUEL V. JACKSON. Mr Harvey moved to make the rule absolute. Mr Button showed cause, and said that there -was some evidence to go to the jury on behalf of tho plaintiff. This was admitted in the terms of tho rule which asked for a now trial on the ground that the verdict was against the weight of evidence. Tho direction of tho Judgo nrast be taken as correct that there was some ovidence, or if the direction was wrong tho ground for 'applying for a new trial should have been misdirection, and lliereforo it was admitted then that the Judgo was right. Such evidence as there was for the plaintiff was altogether uncontradicted, and

therefore there could be no conflict of evidence.

Mr Harvey replied and said that the evidence given for the plaintiff would bear a construction more favorable to defendant than to plaintiff, and referred to the last letter of defendant to plaintiff, in which he said that there was. far more for the jury to gather that the relation of master and servant subsisted between defendant and plaintiff than there was to infer the relation of consignor and consignee.

His Honor, in giving judgment, remarked that Mr Harvey had asked him for a direction thit there was no evidence to go to the jury on plaintiff's behalf, and he was not quite sure that he was right in not directing them in that manner, but as he thought there was some slight evidence from which the jury might infer the relationship bsfcween the parties, he did not like to withold it from them. However, he tliought they had raised the inference the wrong way, and he should accordingly grant a new trial. He was sometimes sony that it was not left entirely to the jury, so that their decision could not afterwards be questioned, as such matters seemed to be exclusively within their province, but as the Court had power to grant a new trial when the verdict seemed against the weight of evidence, he should grant it in this case. Rule absolute accordingly, costs to abide the event. BONDEHSEN V. RIEBER AND ANOTHER. Mr Button having obtained a rule uisi on leave, reserved to enter a non-suit. Mr Rees now showed cause, and said that the bill sued on was not a negociable document. If text writers had correctly quoted certain cases, the learned judges at home appeared to have contradicted their own judgments, it being clear in certain cases that there was a confusion with regard to what they considered negotiable documents.

Mr Button — This seems to be another case your Honor of the r sun being wrong, and not the clock.

Mr Rees continued his argument, and said what he meant was, that there was a great deal of confusion with regard to the definition of a negociable instrument. He contended, however, that the bill in this case could not be said to be negociable, and went on to show that nobody but plaintiff had a right to sue upon the bill.

His Honor — Does that meet the objection of the other side ? Does not Mr Button contend that nobody could sue — in fact that there was a dead-lock ?

Mr Rees said that plaintiff had not parted with his right to sue. It was evident that somebody was entitled to the money, and that person could be none other than plaintiff. The only thing that could be said in favor, of the argument that a person not in possession of the bill could not sue upon it was, that he could not give up the bill if the action was settled. But here the acceptors had the bill in their own possession. Mr Button replied, and argued that plaintiff had, according to his own showing, pawned this bill with Iversen. The pawnee obtained a property in the subject matter of the pawn, and not a bare custody of it. The bill was something more than the mere material of which it was composed, and represented a right of action for a certain sum of money, and this last was its real value. It was altogether inconsistent with the rights of a pawnee to suppose that the pawnor should be allowed to do an act which would deprive the pawnee of the substantial part of his security. To do away, indeed, in the case of a bill, with the debt which it represented,and leave the pawnee a mere piece of useless paper. This being so, plaintiff could not deprive Iversen of the security which he (plaintiff) bad given him. The defendants must be considered as standing in Iwersen's shoes ; they could take no other property than he had power to dispose of, and if an action could not have been brought until the pawn had been released, when, the bill was in Iwersen's possession, the same rule should be held to apply when it was in the defendants' possession.

His Honor said, supposing the law should be as you represent with regard topawnor and pawnee, and I am disposed to think it is so, as it was tho acceptors who took this bill from Iwerseu, was not plaintiff entitled to treat it as a payment of the debt on which it had been given as security, and to give the acceptors credit for it ? Mr Button — As a payment pro tanto ? His Honor — Yes. Mr Button — I think not. At all events by suing for the whole amount plaintiff has not choßen to regard it in that light. His Honor said lie should take time to consider liis judgment, and at all events if he discharged the rule it would be on terms that plaintiff should reduce his verdict in tho amount winch was covered by Iwersen's security. The Court then rose.