SUPREME COURT.

Globe, Volume XXII, Issue 1928, 29 April 1880, Page 3

SUPREME COURT.

SITTINGS IN BANCO.

Wednesday, Apbil 28,

[Before His Honor Mr Justice Johnston,] His Honor sat in banco at 11 a.m. THEOBAID V STUDHOMIH.

In this case Mr Joynt, for the plaintiff, applied for a rule nisi calling on defendant to show cause why a new trial should not be granted and the verdict set aside. Some argument ensued, his Honor holding that, under the verdict of the jury and the question asked by him of the jury, of which a noto was taken at the time, Mr Joynt oould not apply for a rule for a new trial. Mr Joynt submitted that he was unaware of what his Honor referred to, as he did not know that the note spoken of by his Honor existed. He submitted that the verdict of the jury was found under the direction of his Honor, to which he (Mr Joynt) objected at the time.

His Honor said that the jury found a verdict that the fire was not caused by the negligence of defendant or his sorvants. He should, under the circumstances of the note taken by himself, decline to grant the rule on the ground of misdirection. Mr Joynt asked for leave to appeal. His Honor deolined, as to grant leave to appeal would seem to intimate that he had a doubt on his mind, which was not bo. Mr Joynt would have to go by petition to the Court of Appeal. Mr Joynt said he would abandon the second ground, that the verdict was against the weight of evidence. He would now move on the third ground, viz., the disoovery of material and fresh evidence for the plaintiff. Several affidavits were read by Mr Joynt in support of his motion sworn by witnesses. His Honor said that in regard to the first point as to misdirection, that the jury had adopted the ruling of the judge, he had to say that he took every pains to ascertain the finding of the jury. When the jury gave their verdict he asked whether they were satisfied that, though there might have been negligence, the fire had not communicated to the plaintiff's property from the negligence of the defendant or his servants. The jury assented to this proposition, and it was the duty of the counsel to make objection to this statement made in opon court, that the ground of misdirection could not arise. On the third ground, viz., as to the discovery of the new evidence, it was necessary that the judge should be satisfied that had the evidenco now brought forward been brought forward at the trial, in all probability the verdiot would have been for the plaintiff. Now giving all scope and consideration to the evidence as now brought forward, he could not look upon it as being such as would, had it been brought forward at the trial, been likely to have given the verdict to plaintiff. For these reasons he should refuse the rule nisi. Mr Joynt would ask for leave to appeal. His Honor said that for the reason mentioned previously, and with no desire to prevent the further consideration of this case, he must refuse Mr Joynt leave to appeal. He could, however, get the case before the Court of Appeal by petition. PPLLBB V. THE QUEEN. This was an argument on demurrer to the plea of the defendant. The case was one in which the plaintiff sued the defendant for moneys payable on a contract for work done by the plaintiff for the Public Works department on the Great Southern Railway. The defendant claimed as a set-off to this the sum of £3900, as liquidated damages for penalties alleged to have been inourred by the plaintiff by delay in completion of the said contract. Mr George Harper for the plaintiff, and in support of the demurrer. Mr Joynt for defendant, and contra. After a lengthy argument by counsel on both sides, His Honor took time to consider. The Court adjourned at 5 p.m. till 11 a.m. to-day.