SUPREME COURT.

Evening Star, Issue 4101, 19 April 1876, Page 3

SUPREME COURT.

CIVIL SESSIONS.

Wednesday, April 19,

(Before Mr Justice Williams and a Special Jury.)

Bird v. The .National Bank of New Zealand. —This case was resumed. Mr Barton appeared for plaintiff; Mr Smith, with him Mr Stewart, for defendants. Mr Smith made an application to introduce fresh evidence. Before addressing the jury he asked that Mr George Miller, manager of the Bank of New South Wales, be called to give evidence on behalf of the defendants. That gentleman was to have been present the last evening the Court sat, bnt he was then confined to his bed, and he (Mr Smith) was therefore deprived of the op portnnity of calling him. If the jury expressed a general desire to hear the evidence the Court conld not refuse. Mr Stewart thought the evidence of a disinterested witness should be taken. The Foreman (Mr E,. K. Murray) said the jury were of opinion that evidence as to usage should be given by a disinterested witness. Mr Mendershausen (one of the jury): That opinion emanated solely from the foreman. The Foreman: It is the general feeling of the jury, and did not originate from the foreman at all. The jury expressed a wish to hear the evidence of a disinterested bank manager as to bank usage. Mr Barton commented on the fact of a jury wishing to hear the evidence of a manager of a hostile bank who would not be at all sorry to see the Colonial Bank get a slap in the face. The matter appeared to have been arranged beforehand. Mr Smith would treat this remark with ntter contempt. He always claimed permission to set himself right with the Court, and now asked to address his Honor, He never allowed himself to be assailed without setting himself right on the spot. An unseemly squabble between counsel was cut short by His Honor, who directed both gentlemen to sit down and allow him to speak. There was not the slightest reason for explanation. Mr Barton might have said somethinghaatily, bnt he did not mean to impute anything to Mr Smith. He (the learned judge) did not hear the remark.

Mr Smith did not intend to speak with reference to what had been said by Mr Barton; he was careless of what that gentleman did say, but he claimed the right to address the Court—to set himself right a privilege he never abandoned. His Honor did not know that Mr Smith was wrong, and therefore there was no necessity to put himself right, Mr Barton expressed his utter astonishment that counsel should address the jury and ask them to decide a point which the judge should decide. His Honor intimated that he had made up his mind as to the course he should take. Mr Smith then explained that before he took his seat the foreman of the jury came to him and said that some of the jury—or one of the jury, he could not say which, had evpressed a desire to hear Mr Miller. He

(Mr Smith) stated to the foreman his intention of making an application to the judge when be took his seat that he might be allowed to call Mr Miller, and that was all that took place between himself and the jury. He was not in the habit of talking to the jury, as he saw his learned friend doing ontside. It was contemptible. Another juryman observed that the jury were united m agreeing not to hear Mr Miller. They had had plenty of evidence. His Honor said that had the jury been perfectly unanimous to hear Mr Miller, he should hare been inclined, under the circumstances, to have that gentleman’s evidence taken. As they were not unanimous he did not see what good would be gained by acceeding to the application. Mr Smith asked that his Honor should take a note of his application. It would found an ulterior application. Mr Barton would waive his objection as to admitting the evidence sooner than there should be an ulterior application. If Mr Smith called. Mr Miller he should call Mr Lamach and Mr Quick, whose evidence had been excluded, and both of whom were summoned as witnesses.

The Court decided not to hear the evidence. Mr Smith, in addressing the jury, said the case should never have come before the Court. It was a discredit to the Court, and as it had already occupied the jury’ two whole days, and would probably occupy another he felt it to be his duty to be most careful how he trespassed on their patience They would have to take their direction from the judge, and he would ask for a special direction. If Mr Bird failed against the National Bank he would proved against the Colonial Bank and make them pay costs and thus heap coats on costs. ’ Mr Barton said that apparently Mr Smith could not now address the Court without using some offensive and insulting remark. Mr Smith did not choose to handy words with counsel. He would leave his Honor to Preserve the decorum of this Court, and if Mr Barton continued to improperly interrupt him, as he had done several times,

he asked his Honor to stop him. He (Mr Smith) would not condescend to interfere again. Counsel continued to address the jury, when Mr Barton made some remark whereupon ’ . s “rith said he protested against such indecent interruptions. He could not discharge Ins duty as counsel if it was allowed. He could not help recollecting the time when Mr Justice Richmond made Mr Barton sit down Mr Barton : Mr Justice Richmond never aid such a thing. S* s ?°?? r ; Barton has sat down. . ~ r kooth hoped he would not be again interrupted. He could not perform his to confining his address within snort limits if interrupted in that way. Continuing his address, he said that plaintiff had been badly advised—he ought to have made a claim on his own banker, who with-

9J" re S BOT * 1 a< i dishonored his cheque. He (Mr Sraith) did not know what his direction might he ; but it was the full intention of the National Bank to have by the highest Courts. Mjf Barton submitted that the learned counsel ought not to intimidate the jury. Mr Smith, in conclusion, submitted that the great weight of the evidence showed conclusively that the cheque was duly presented for payment within banking hours, and improperly refused, or in other words that it was dishonored, and therefore the verdict should be for defendants. Counsel renewed his application made in the early part of the trial, that the jury be asked to find whether in the evidence the notice of dishonor was given hondjuh, the defendants believing that the cheque mentioned in the declaration had been dishonored ; and without actual malice wrote and sent to Miss Sproule, a customer of the defendants, by whom the cheque was handed to them, the said notice of dishonor. After the luncheon adjournment, Mr Barton proceeded to address the jury on behalf of defendants, and in the course

of his remarks caused some amusement by 'stating that Mr Smith generally succecde*d Itt “ bullying ” him into sitting down. He went on to say that Mr Smith had impro9&ly threatened to take the me to the

Appeal Court in order to induce the jury to give small damages. They had to consider what amount of damage would be done to a man in Mr Bird’s position by its becoming known that a “paltry dirty ” cheque of his for L 5 18s had been dishonored.

His Honor summed up at length. The jury would have to hud out were the cheques presented to the ledger-keeper in the first instance within the time at which ordinary customs would be entitled to have them paid; and secondly, were they presented to the ledger-keeper under such circumstances that the ledger-keeper was made aware that they were being presented to be marked in the same way as cheques of ordinary customers ? If they found that the cheques were presented to the ledger-keeper within the hours at which ordinary customers could have presented them, and further that the ledger-keeper was made aware of the purposes for which they were pre sented, ana that the ledger-keeper had de-

clined to mark them, they would have to find that the cheque in question was dishonored. Speaking with regard to damages, his Honor said that it remained with the jnry whether they would give nominal damages or greater damages. In any case damages should be moderate and temperate, but above all things they must not take into consideration the depth of the pocket out of which the money came. The tact of defendant’s being a wealthy corporation was no reason forgiving heavy damages. At Mr Barton’s request, his Honor told the jury that they could not give nominal damages they must give reasonable damages. [Left sitting.]