SUPREME COURT.

Globe, Volume XXIII, Issue 2233, 25 April 1881, Page 2

SUPREME COURT.

SITTINGS IN BANCO. Monday, Aphid 25. [Before His Honor Mr Justice Johnston. J His Honor eat in banco at XI a.m. WOODIKS T DOLB. In this case, which was heard at niti print, a motion for a new trial on various ground* wai applol for by the plaintiff’s counsel. His Honor now delivered judgment, holding that the findings of the jury wore perfectly clear, that there was no ambiguity in them, and therefore the rule must be discharged with costs. Mr Joynt for the plaintiff, Mr Garrick for the defendant. POED V LISDKSA.T. Dr. Foster applied herein for an order dismissing the action, and that plaintiff should not bo ordered to pay costs. They had been misled by the defendant into bringing their action, which otherwise they would not have done. Tho affidavits of the plaintiff and Mrs Lii.deaay were read by Dr. Foster.

His Honor said that he thought, from reading the affidavits before him, that the plaintiffs had been misled by the defendant, and had thus been induced to bring their action, which they would not have done otherwise.

Mr Harper, for tho defendant, contended that tho fairest way to deal with the matter was to leave the question of costs over till the action was brought by the plaintiffs against the defendant for misrepresentation. Hi* Honor must remember that tho defence was not brought out, as the case was for the plain iffs so weak that they did not even address tho jury. As his learned friend would not accept tho position which he (Mr Harper) laid down—viz , that until the action for misrepresentation was brought, the cost* should stand over —ho must go into the whole care. The learned counsel then went on to road the declaration and pleas. He submitted that the plaintiff could have found out whether Mrs Dindesay had money or not by having interrogatories instead of going to work in the dark. His Honor said, ns at present advised, he was certainly of opinion that the plaintiff had been misled by tho defendant’s double dealing as it wore. Mr Harper painted out that Mrs Lindesay denied on affidavit the evidence given by Mr Appleby at tho trial. Further than this, the question of misrepresentation was never raised to the jury. His Honor said that this was so. It was placing tho Court in a very peculiar position to have to judge from affidavits ns to evidence given on the trial, Mr Harper said if his learned friend would allow tho case to stand over, ho would file an affidavit showing that Mr Applt bly had himself been threatened with an action for not carrying out the contract, as auctioneer’s clerk. His Honor inquired what bearing this would have on the cate.

Mr Harper said that it would show that the plaintiffs v ore fishing about for someone to bring an action against. Dr. Foster objected to rash statement*

like thia being made, which might hare no foundation in fact, Mr Harper read the affidavits in the case to ■how that the contract went off because the defendant hod been deceived by Mr Appleby as regarded the mortgagee on the properly, Hot one word was said by Mr* Lmdesay that •ho was purchasing the property with her own money. The defendants did not deny the contract having been made, but nothing was •aid by them to the effect that Mr* Lmdosay had a separate estate, . . His Honor said he was of opinion that he could not i rant the order. Although there waa good ground for thinking that the plaintiff was milled by defendant, there was not sufficient before the Court to make it believe that there had been fraud. Ha could not help saying that there was in the evidence some presumption that the parties desired to get out of a bargain which turned out not to be so successful ns was anticipated. If the plaintiff could have shown evidence of fraud which could not bo controverted before a jury, the Court would have granted the order as to costs Under all the oiroumstanoeg the order would be for the dismissal of the action, but with no special order as to costs.

J. AND A. ANDERSON (ARPEtLAHTS) V V- B. PASSMORE (RESPONDENT). This was a case on appeal from tho judgment of tho Resident Magistrate at Ashburton. The respondent was the plaintiff in the Court below, and sued the appellants ns contractors for tho Bakaia and Ashburton Porks Railway for £3O, tho value of a mare the property of plaintiff, alleged to have bom ki'led owipg to the negligence of tho appellants^in leaving a crossing on tho railway in »(i«'ioivc o xtition, though attention had been called by plaintiff thereto. The defence set up in the Court below was that the appellants had sublet the portion of the works upon which the accident occurred to a firm of sub contractors,and that therefore they (tho appellants) were not liable for the damage to plaintiff's mare. Tho plaint! * contended, on tho other hand, that the defendants were liable under the original contract for damage, notwithstanding tho sub-letting. Tho Resident Magistrate gave judgment for the plaintiff for amount claimed, and the defendants appealed against ■uch decision.

Mr Holmes for the appellants, Mr Garrick for the Resident Magistrate. After oonnsol had addressed the Oonrt, the appeal was allowed with costs.