SUPREME COURT. CIVIL SITTINGS.

Evening Star, Issue 4264, 26 October 1876, Page 3

SUPREME COURT. CIVIL SITTINGS.

Thursday, Octobeb 26. (Before Mr Justice Williams and a Special Jury.)

Maciatv. tthk Nattohai. Banx of New Ze>Xakd Claim L 15.000, damages for alleged breach of agreement. Mr Mao«ssey, Ywith him Mr Donniston, for plaintiff; Mr Haggitt, with him Mr Stout, for defendants.

This case was continued this morning, the Court resuming at ten o'clock. J. Wells, recalled: So far as I know the dishonored bills were given in the ordinary course of business. By Mr Haggitt: I held a bill of sale over Mackay's furniture, which I got about the time that I saw Mr Sinclair at Milton. The consideration wis the bond whioh was sigued. • Mr Macassey said he proposed to amend the counts in a certain manner which would simplify matters without involving any alteration in the issues.

Mr Haggitt objected, sayim? it was impossible now to say what the effect would be on the case. His Honor said that, so far as he could see, tbe amendment represented the view it would be necessary for plaintiff to take of the alleged contract in order to sustain his action; bat he (his Honor) was exceedingly doubtful whether the evidence already given established an agreement of the kind alleged by plaintiff, Mr Macassey considered that the Court should make the amendment, as it differed in no way from the case as stated in the declaration. His Honor said the rule was that if the evidence showed something different to the cose in the declaration, the latter ought to be amended so as to make it agree. Be was inclined to take that view on reading the evidence, and that was his difficulty in granting the amendment. Mr Macaseey: Then I understand that your Honor refuses the amendment. His HoHor said that if he could be cumvinced that the evidence showed a cause of action, he would be prepared to make the amendment, so that the cause of action might be sustained. Mr Haggitt then moved for a nonsuit, and was followed, on the same side, by Mr Stout. Mr Macassey replied on the points wised, and, after citing a number of cases, said he would take this attitude: that it was not necessary- -that there should be a legal binding contract between the parties, but that if the bank manager so conducted himself so as to lead the customer to suppose that his bills and cheques would be met, then the bank would be liable in damages in the evemt of such cheques being dishonored. It had to be decided whether the course of dealing was on the footing that plaintiff was to draw on his account so long as his overdraft was not exceeded, or whether he was to be allowed oDly to draw until the bauk claoße to dishonor his cheques and bills without giving plaintiff reasonable notice. Plaintiff complained that, b.ring fiven to understand that his cheqaeswou'dbe duly onored, the bank manager had no right to dishonor any without placing him on his guard and notifying the bank's intentions in tho future. Coouusel submitted that the whole evidence showed -that there was Buch an understanding as to warrants plaintiff in drawing ©n his payments into tbe batik so long as his overdraft was not exceeded. Therefore, with deference to the opinion which his Honor appeared to have formed, he (counsel) must decline- to take a non-suit, and would ask bis Honor to t'lirect the jury so that a bill of exceptions might be itaken out. Mr Haggitt replied at. some length, and tw Court adjourned for three-quarters of an hour to allow his Honor to consider the arguments of counsel. His Honor, having carefully reviewed the evidence, said he thought that the plaintiff [should be nonsuited.

Mr Macassey tendered a bill of exceptions to his Honor's ruling. His Honor thereupon directed the jury to answer the twenty -seven issues virtually for the defendant, and this was accordingly done. Mr Macassey: 'lhe plaintiff's counsel rofnse to accept a nonsuit, or to aeoept the learned Judge's direction in support of the said nonswit. The §lainturs counsel insist that there.is ampleevience to support all of the said counts. •The Court adjourned till 11 a.m. next day.