SUPREME COURT.

Globe, Volume IV, Issue 369, 18 August 1875, Page 3

SUPREME COURT.

SITTINGS IN BANCO. Tuksday, August 17. (Before His Honor Mr Justice Johnston.) His Honor sat in banco in the Court House at 11 a.m. BAIN V WALKER. Mr Joynt moved for a rule nisi for a new trial in this cause, tried belore his Honor Mr Justice Williams, on the ground that the verdict was against the weight of evidence. As will be recollected, the plaintiff who is a contract surveyor, entered an action for libel at last Nisi JPrivs sitting of the Court, against the defendant, who had written to the Secretary for Public Works, a letter reflecting on the character of the plaintiff. The case was tried before Mr Justice Williams, and a special jury, when a verdict for the defendant was returned on the issues. It was now sought to obtain a nevv trial, on the ground that the verdict was against the weight of evidence. His Honor said that as no objection was raised to the queation of privilege, either by the pleas or declaration, there could scarcely be an objection now raised as to weight of evidence. Mr Joynt contended that it was for the judge to say what was a privileged communication in cases of this kind. His Honor held not, so far as the judge was concerned his duty was to say whether there was bona fides, or whether there had been an excess of privilege, leaving it to the jury to decide the question as to whether the communication was privileged or not. Mr Joynt cited cases in support of his contention [6 M. and W. p. 107]. His Honor asked Mr Joynt whether he did not think that the rule might be obtained on the ground of misdirection, that the learned judge had not directed the jury that the charge against the plaintiff by defendant was beyond the bounds of privileged communication, imputing, as it did. sordid and unworthy motives to the plaintiff. Mr Joynt said that he requested his Honor to do so, but his learned friend (Mr Harper) on the other side objected. Mr Jdynt then proceeded to quote cases in support of his application. [Oases cited — Friar v Kynnersley, 33, L. J., U. P.; Tuson v Evans, Cook v Wilde, 21 L. J., Q.B.] In . the former case it was held tha 1 -, there was unnecessary imputations in the letter sent, i His Honor—ln this case the learned Judge s left the matter to the jury to decide whether I I there was express malice or not, which is i quite in accordance with the rulings in the i cases you have cited. You, however, say , the verdict is against the weight of evidence. I can see no cause for the granting of c I a rule nisi for a new trial without consulting f with the learned Judge who tried the case.

Mr Joynt contended that it had been decided over and over again that privilege did not extendi" unjustified comments on the character of plaintiffs. In tins case there was no doubt that the libel contained gross and unjustifiable statements wholly unsupported by evidence, hence the weight of evidence was against the verdict of the jury. His Honor—l still hold to my decision, Mr Joynt. I cannot grant the rale without consultation with the learned judge who tried the case. No Order—Case to stand over to enable His Honor to communicate with Mr Justice Williams, BOVEY V PYNE, In this case Mr Joynt moved for a ruin nisi, to shew cause why the verdict obtained in this cause should not be set aside, and a nonsuit entered, pursuant to leave reserved at the trial. In this case the plaintiff sued the defendant for specific performance of contract, and obtained a verdict for £l«9. Mr Joynt for defendant, obtained leave to move for a nonsuit, on the ground that the valuation by the two valuators appointed to value the property, was not made in pursuance of the terms of the valuation. His Honor granted a rule nisi, returnable in seven days. PASSMORE V BANK OP NEW SOUTH WALES. Mr G. Harper moved for a rule nisi calling on defendant to show cause why a new trial should not be granted, on the following grounds : 1. That the variance between the telegram of the 6th March, 1874, produced in evidence to prove a contract as set forth in the declaration, and the telegram of the 6th day of March, 1874, set forth in the declaration, and stated as part of the said contract, could nol be relied on by the defendant under the plea on the record. 2. That such variance was not sufficient to destroy or alter the effect of the contract as set forth in the declaration, and for the purposes for which it was pleaded. 3. For misdirection, the learned judge having directed the jury to find a verdict for defendant, on the ground of variance between the contract set out in the declaration and the proof of the same as tendered in evidence by the plaintiff. His Honor said he could not grant a rule on ground of misdirection. Mr Harper said that ho would abandon the application for new trial, and would move for a rule nisi to show cause why the verdict should not be set aside, and a verdict entered for plaintiff pursuant to leave reserved. His Honor would grant a rule nisi on this ground, to be returnable in seven days. APPEAL FROM RESIDENT MAGISTRATE'S CO.URT, KAIAPOI, RE STEPHENSON, PLAINTIFF, AND STARK, DEFENDANT. This was an appeal from a judgment delivered by the Resident Magistrate's Court, Kaiapoi, in the case of Stephenson v Stark. Mr Joynt appeared for the nppellant. Mr Garrick for the respondent. The following was the case submitted for the consideration of the Court. The case was tried on the 31st May, 1875, before the Resident Magistrate at Kaiapoi, in which the present appellant was plaintiff, and the respondent defendant, in which the former as owner of rural section No 1760, sued the latter who was owner of rural section No 7761, to recover £2O damages for the defendant having wilfully destroyed a portion of the fence in course of erection by the then plaintiff on the boundary line between their sections. At the conclusion of the case respondent's counsel objected to the jurisdiction of the Resident Magistrate's Court, on the ground that the respondent asserted his right to destroy the fence, because it was being erected upon his land, and that the evidence showed that a question of title to real estate was bona fide in dispute, and the Resident Magistrate, after hearing argument, decided that the question of title to the land was bona fide raised and in question, and that he had no jurisdiction to try the question, and nonsuited the plaintiff, the now appellant. Notice of appeal was given, and the question remitted to the Supreme Court was whether the Resident Magistrate was right in deciding that a bona fide question of title to real estate was raised by the evidence. Mr Joynt, for the appellant, contended that this was not a question of title, but simply a matter of disputed boundary; hence the Magistrate was wrong in nonsuiting the appellant on the ground of no jurisdiction. The claim of the plaintiff to the nine feet or nine links was a mere colourable one, and not one of title. His Honor—But the plaintiff disputes the correctness of survey, and does not this involve the question of title ? Mr Joynt submitted not. It was a question of measurement, not of title, and should be decided by experts, and there was nothing as to real estate to come before a court of law. It was a mere matter of fact, which would have to be decided by the preponderance of evidence on one side or other, His Honor thought this was a case of dispute as to title to parcels of land, and would refer Mr Joynt to Sewell v Jones, 19 L.J, 372. Mr Joynt said that, after reading that case, he would not proceed with the appeal, as the case was very strong, and seemed to go on all fours with the preseut one. He would not, therefore, prosecute the appeal further. Appeal dismissed, with costs. BANK OF NEW ZEALAND V WILSON AND ANOTHER. In this case Mr Duncan applied on behalf of Mr W. Wilson, of Christchurch, merchant, for an order settling the special case proposed by him, and also for an order directing the payment by John Lewis Coster, as manager of the Bank of New Zealand, of upwards of £4OOO to the said William Wilson, out of moneys lying in the Bank of New Zealand to the joint credit of the said W. Wilson and John Lewis Coster. Shortly stated, the case is as follows: —Mr W. Wilson advanced to Mr W. G. Brittan a sum of money to meet the claim of the Bank of New Zealand, taking a mortgage over certain properties. After this Mr YVilson and Mr Coster accepted the position of trustees under a deed of trust, and the estates were realised under, as Wilson alleges, an implied understanding that his mortgage was to be respected and his claim thereunder satisfied. I The sale to Mr Stafford being completed, 1 Wilson declined to join Coster in the execu--1 tion of a title, hence the present action I brought Vy the Bank of New Zealand to I obtain a completion. The opinion of the • I Court was so% at t o be obtained as to I whether Mr b y aoC epting the posi- ; I tion of a trustee eui o i nt ] y w j t h Mr Coster, under a deed of trust t- ecute( j by Mr Brittan,

had waived and merged his right under a mortgage previously executed by Brittan to him. Mr Duncan appeared for Mr Wm Wilson, and in support of the application. Mr Garrick, with him Mr Cowlishaw, for the Bank ; and Mr R; D. Thomas for Mr Coster. Mr Duncan proceeded to review the case from the commencement up to the issuing of the decree, contending that the Bank had always recognised Mr Wilson's claim to have his mortgage claim considered. The Bank had obtained this decree, and therefore he contended that they were not now at liberty to go from this. Mr Garrick contended that the notice given could not be entertained, as the settlement of the special case was a Chamber matter. As regarded the notice in reference to the payment of the money to William Wilson, that was settled by the decree .that the Registrar should decide and make the necessary calculations. Hence the latter should be dismissed with costs. His Honor asked Mr Duncan whether he was prepared to take the report of the Registrar. Mr Duncan would have no objection to the order, if made by his Honor. Mr Garrick said this was laid down in the decree, hence there was no need to come to the court at all. What should have been done, was to have taken out an appointment with the Registrar. His Honor—There is no need for the application at all, as the decree refers it to the Registrar. Mr Duncan would apply direct to the Registrar. Mr Garrick applied that the motion should be dismissed with costs, as there had been no need for them to be brought there at all. Mr Thomas applied also for Mr Coster's costs as against the co-defendant, Mr Wm. Wilson, because they had been brought before the Court that day. His Honor granted both applications. Order—Motion as to payment of money out to William Wilson dismissed with costs, both as regards the Bank and John Lewis Coster, the decree providing means for cairying out the provisions of it by reference to the Registrar. The Court then proceeded to consider the question of settling special cases. After some argument, His Honor said the best way would be to state a case on the papers, simply without introducing any controverted points, for the purpose of deciding whether Mr Wilson was entitled to have his mortgage settled first. On this the Court could decide whether there had been an absence of notice or surprise, and then evidence as to facts could then be taken, whether there had been suggestive concealment or not, and if this would affect the rights of the parties. Order by consent; settlement of special case referred to Chambers ; counsel io argue right of Wilson under decree to receive payment of mortgage in priority at next Banco sittings, and that special cases as to notice, concealment, fraud, and Mr L. Harper's decision, should afterwards be stated if necessary. Costs of the application to be costs in the cause. RE C. B. TURNER'S WILL AND RE INFANTS. Mr Garrick mentioned this case to his Honor, in which Mr B. Monk had been appointed by the learned Registrar, as trustee and co-guardian, in the room of J. W. S. Coward resigned. He now applied to the Court to confirm the Registrar's appointment which had been accepted by all parties in the matter, and make a vesting order in the new trustee. Mr G. Harper appeared on behalf of Mr Wynn Williams to consent for Mr Wm Wilson, the co-trustee, to the order being made. His Honor made the order ; costs to be chaiged on the estate. CREYKE V DRANSFIELD. This was an argument on demurrer to defendant's pleas. Mr G. Harper appeared for the plaintiff, and in support of the demurrer. Mr Joynt appeared for the defendant and contrti to the demurrer. After hearing argument, His Honor reserved judgment. The Court then rose.