SUPREME COURT.

Evening Star, Issue 4102, 20 April 1876, Page 2

SUPREME COURT.

CIVIL SITTINGS.

Wednesday, April 19. (Before Mr Justice Williams and a Special Jury).

BIRD V. THE NATIONAL BANK OF NEW ZEALAND.

After his Honor had summed up, Mr Smith applied for a special direction upon certain points, whereupon Mr Barton remarked that counsel for defendants was making a second speech to the jury, and the following colloquy ensued : Mr Smith : I don’t know how long your Honor will allow Mr Barton to go on m this way as dictator of the Court.

His Honor said he had given every latitude to Mr Smith, and longitude too, and was very willing to do so ; hut he did not think Mr Smith had any ground for complaint. Mr Smith replied that Mr Barton was allowed a latitude that was not consistent with the decorum of the Court.

His Honor, addressing Mr Barton, said if he would be good enough to sit down he would be happy to hear him when Mr Smith, who was not making a speech to the jury, had done.

The Foreman suggested that it would answer the purpose of counsel if the jury might be allowed to retire to discuss the case, and they could return for any direction from the Court before they gave their verdict.

His Honor : I think it is so nearly over that it would be better for the jury not to go. Mr Barton: It is very improper that the jury shonld really have another speech made to them.

His Honor : Don’t interrupt, if you please, Mr Barton.

Mr. Barton continued speaking. His Honor: Mr Barton, wifi you hold your tongue ? Really, I aip obliged to speak in this way. Mr Barton : I will retire for a bit. His Honor: Very well, Mr Barton. Mr Barton then left the Court.

The jury, after about an hour’s consultation, returned a verdict for the plaintiff on all the issues and awarded him L 250 damages. His Honor certified for a special jury. ■

IN BANCO.

Thursday, April 20. (Before Mr Justice Williams.)

THE LATE BREACH OF PROMISE CASE. Hughes v. Shand.— This was an application for a rule nisi, calling upon the plaintiff to show cause why the verdict recently arrived at it in this case should not be set aside and a nonsuit entered up on the ground that the corroborative evidence of the alleged contract of marriage was not sufficient to satisfy the statute.

Mr Barton, with him Mr Stout, appeared to move the rule absolute; Mr Snath to show cause.

Mr Smith said it would perhaps be well in the first place to endeavor to arrive at the legal signification of the word “corroborative” in connection with this case. Jeremy Bentham, in his work on * Human Testimony,’ said corroborative testimony did not go directly to form a main fact, but is that which tends to render credible and probably true other evidence to a fact necessary to be proved true. As to the corroborative evidence in this case there was the evidence of Mr and Mrs Grant as to the conduct of defendant towards plaintiff before, at the time of, and after the date of the alleged promise of marriage (November 13, 1874). They spoke positively to the demeanor of defendant, and, making allowance for the well-know peculiarities of his disposition—his phelgmatic nature, want of ardor, and the Scotch element of caution—they arrived at the conclusion that he acted the lover; that his demeanor was that of a man paying his addresses to Miss Hughes. Above all, there was the evidence of Mr Grant as to three interviews he had with defendant subsequently to the alleged promise, which was to the effect that at every one of these defendant, when asked by Mr Grant what he intended to do, replied that he “ did not know what he shquld do; ” he “would not be bounced into marrying her.” Defendant never replied after this manner: “Mr Grant, you are misinformed ; it is quite true I have been keeping company with Miaa Hughes, but I never promised to marry her.” On the other hand, he allowed Mr Grant to assume that the alleged promise of marriage was true. Counsel submitted, therefore, that if ever silence could be held as “giving consent,” most certainly defendant's silence on that occasion amounted to consent, and the jury were justified in holding that the contract had been made. If an intending purchaser ot property went to a person who was reported to have an encumbrance over it, and said, “I have heard vou have an encumbrance over this property, but will hot believe it unless you tell me so ”;

and the person with the encumbrance chose to remain silent or returned an evasive answer and allowed the intending purchaser to go away and become the purchaser, the other party would in a Court of Equity be estopped. • In common life the same principle applied. If Mr Grant was to be believed, and there can now be no doubt as to his credibility, his evidence amounts to corroborative testimony to as great an extent as a court of law would usually expect. Counsel cited Wilcox v. Godfrey, 26 L.T., N.S., 481 in support of this view, and said that if there had been only evidence as to the third interview between Mr GraSat and defendant that would in itself amount to so much material corroboration as would satisfy the requirements of the legislature. Counsel read extracts from the newspaper reports of the evidence of Mr and Mrs Grant anal then referred to an “exhaustive” question put by himself to Mr Grant as to whether defendant had actually denied the promise of marriage, which question it appeared was objected to by defendant’s counsel and overruled. How, he (Mr Smith) considered that if there was an evident desire to stop an exhaustive inquiry in Court the demeanor of not only the parties to the action, but also of their legal advisers might be taken into consideration by a jury. Counsel also cited Hickey v. Campion, 20 Weekly Reporter, p 752, in which it was laid down that in a breach of promise case evidence as to the conduct, demeanor, and behavior of the parties to each other might be considered to amount to material corroboration.

[Left sitting.]