SUPREME COURT.

Nelson Evening Mail, Volume VIII, Issue 252, 20 October 1873, Page 2

SUPREME COURT.

IN BANCO. Fbiday, October 17. [Before His Honor Mr Justice Eichmond] Thomas and another v. Edwards. His Honor delivered judgment in thia case as folio we: — On the motion tor a decree in this case argued before me on Friday. Mr Pitt contended that notwithutnnding the opinion of the Court on the construction of the defendant's mortgage of stock, the plaintiffs were jet entitled to a decree for the balance of the unbranf'ed sheep after Mr Edwards' were made up to the number of 1500 I think that if the plaintiffs were entitled to tuch a deer c it iright also give them the costs in the cause, but I have come to the conclusion that they are not entitled to any such relief upon their declaration in this action. Even assuming that the defendant, in his agreement with Pike, abandoned his rights to any sheep over the number of 1,500, still the plnintiffa cannot be said to have succeeded in this nciion. It has a'so been ffiijjjlßill that the plaintiffs are cr titled to. a dcoHHft^| decree, this being an equitable suit, in 'MHfflr give them a defence to a possible actionJgMßi whole of the amount of £15, which woul( IHmBP to T dwardg as having been overpaid by^BBPjBJ plaintiffs were not entitled to make up tti&gffigS ber of 1500 sheep sold by them to him, 01 ro§»«| unbranded Bhecp. There does not, ' loWt " v |f|i£§Sl| to be any ground for such a decree v W!itj&3m ally the defendant succeeds in the aetioaj|||lj|||j entitled to have the action dismissed I use the term " dismissing the actionSM^| think that of dismissing the bill, used in Q<§l|fa» Equity at home, does not suit the P rese^^^ffi With regard to the important point as io W*@jffim entitled to the costs of the trial of the wwß||B

fact, my conclusion is favorable.- to-.fhe plaintiffs as having substantially succeeded. The real question of fact which the parties went down to try was, " Did the agreement between the plaintiffs and defendant of the 10th of May, 1870, virtually inclule in its terras a stipulation that the plaintiffs might make up the sheep, sold by them to defendant to the number of 1500. out of the unbranded sheep ? " Upon this question they succeeded. The only doubt in. my mind upon tho point is this: it occurred to me that the defendant had succeeded to a certain extent, by getting from the jury an affirmat'.ou that he had never abandoned any prior rights he might have urnler his securities. This, however, has never been disputed by the plaintiff. Ie wjs an unforeseen question which arose, and was rather a matter of iaw than of fact. I have therefore arrived at the conclusion that I shall act properly by giving to the plaintiffs the costs of the unnecessary issues raised by the defendant and found against him. Let the action be dicmissed with costs; but let the defendant pay to ths plaintiff* the costs of the trial; and declare that such costs may be set off against the costs in the cause. Mr Acton Adams asked whether his Honor considered all the issues unnecessary. His Honor: I think that they arc all unnecessary, having being virtually reduced, by consent, to the one question as to the agreement of the 10th May. 'Jhis is an extremely difficult case, und one in wlii«-h I have not arrived :it a conclusion without considerable, and whut perhaps may seem undue, deliberation. His Honor further stated his opinion that the defendant would be f-ntitled to take out the decree, and tt at ihe minutes of it might be read and settled iv Chambers. Mr Pitt for plaintiffs, and Mr Acton Adams for defendant.