SUPREME COURT.

New Zealand Times, Volume XXXIII, Issue 5245, 15 January 1878, Page 3

SUPREME COURT.

NISI PRIUS SITTINGS. Monday, .January H. (Before his Honor Mr. Justice Richmond.) WALLACE V. CRAWFORD. Prior to the ordinary the Court being entered upon, Mr. J. H. Wallace, plaintiff in the case in which judgment was given on Saturday, asked that he might be allowed to make a personal application to the Court. His Honor : You have a solicitor, I presume, still on your side, and I am not quite clear whether you have a locus standi q,ere, but I will hear what you are going to say. Mr. Wallace : My applications that I may be h iar<l in banco before the Chief Justice on the question of costs. Ido not wish to appear by solic tor, but personally. His Honor said the plaintiff had a perfect rmlit to dispense with the services of his solicitor, but he was not quite clear about Mr. Wallace having a locus standi to make this application. If he had a right, he could make it either in chambers or in banco, but his Honor could not grant it at that time. Mr. Wallace : X was under the impression that unless X made the application now I should debar myself from all right. His Honor ; The Judge who tried that case had the power of certifying as to costs. Ido not thiuk it is too late for him to reverse his own decision if desirable, at least the English Judges are generally willing to reverse their decisions when they think proper to do so. Mr. Wallace : Will this bringing it before your Honor now be considered a preliminary step ? His Honor : Well, it will do no harm; and, in my opinion, it will do no good. Mr. Wallace thanked his Honor, aud withdrew. PETERS V. JOSEPH AND CO. Mr. Barton, addressing his Honor, asked to be allowed, before the special jury case of Joseph and Co. v. Peters was called on, to make application for the rescinding of an order recently made • striking the of Peters y. Joseph and Co. off the special jury list. Hiobject in making the application now was that unle.-s he did it before the case of Joseph and Co. v. Peters, set down for hearing came on, it would be useless. His Honor; I think you made an application before the Chief Justice. I have only seen the newspaper report. Mr. Barton ; Yes. I was not aware that your Honor would be sitting in nisi pruts this morning, I applied to the Chief Justice because he had charge of the case, and,according to the English practice when a judge on circuit has charge of a case all applications, especially where it concerns a removal from the list, are made to him. His Honor : That seems to me all the more reason why you should make it in Banco, Mr. Barton : But the Chief Justice says ho cannot hear an application of this kind because it is in banco. I asked his Honor to declare himself in banco for a moment for the purpose. His Honor thought that the Judge had jurisdiction over the list; but perhaps the better way would he for his Honor to confer with the Chief Justice about it, aud the application might be taken as made now, although he did not at the present time see his way to grant it. Bv that course time would be saved. Mr. Barton said he had another application to make. Originally the case stood Peters v. Joseph, which it was attempted to reinstate, and unless that case was placed on record at once they would be deprived of a very great right by Joseph v. Peters coming on first. In the event of his application which he wanted to make being granted by the Court then he would have asked that the case be placed iu the position it formerly held on the list. His Honor ; I had a preliminary difficulty about entertaining the first application. I did not know whether you had a loans standi. Mr. Barton said he moved upon the affidavit of Mr. Henry Samuel Fitzherhert, which he read, and on which he asked his Honor to try all he could to prevent an injustice being done by striking off the case. He applied that the hearing of the case Joseph v. Peters should be postponed. The following is the affidavit : I Henrv Samuel Fitzlierbert, of the City of Wellington, solicitor, make oath and say as follows : Xam the solicitor for the plaintiff in this action, and am informed and believe that the following statements are true:— . . 1. That this action was tried before a special jury at the October sittings, 1877. and a verdict was given for the plaintiff for twenty-five pounds ten shillings damages on the first count, and five hundred pounds damages on the second count. 2. At the said trial the Judge informed the jury that in assessing the damages they must first deduct therefrom the amount of the debt payable to the defendants. 3. That the jury found the debt payable to the defendants to amount to the sum of nine hundred and eight pounds. 4. That counsel for the plaintiff, George Elliott Barton, Esquire, requested the Judge to ascertain from the jury, before they should leave the box, whether they intended the damages assessed by them to be paid over to the plaintiff ns duo to him without deduction, or whether the intended the said damages to be a set-off against part of the said debt; but the Judge refused to ask any question which would clear the matter up. 5. Very shortly after the said trial AVilliam Thomas Locke Travers, Esq., counsel for the defendant, moved tor a new trial of the action, and a rale nisi was granted to him, dated the seventeenth day of October. 1877. 6. That the said rule nisi was argued before this Court on the eighth day of November, 1877, 1877, and judgment was reserved by the Court. 7. On the nineteenth day of October last a crossaction was brought by the defendant in this action against the plaintiff in this action to recover the amount of the said alleged debt, and said cross-action now stands for trial by a special jury at this present sittings, • 8 That the Judges of the Supreme Court not hav ing delivered their reserved judgment, Mr. Barton on the fifth day of December last made a special application to the Chief Justice to deliver the same forthwith, in order that if a new trial should be granted, it might bo had at this sittings, and so prevent the very great injustice which would bo done to the plaintiff, by allowing a judgment to bo obtained against bim, while tying Ids hands in the present action so as to postpone the trial till next sittings. 9 That on the said application of Mr. Barton, the Chief Justice stated that ho and Mr. Jnsdco Richmond would attend to the matter without delay. 10 On the day following Uis Honor the Chief Justice sent down from the Bench to Mr. Barton a memorandum in the following words:—" Mr. Allan,—Shew tin’s to Mr. Barton and also to Mr. Travers. Wo think that the plaintiff is entitled to keep his verdict on the first count; but as to the second count wo think the damages excessive. Wo cannot give judgment before wo leave, but will on return;” and tiie Registrar, who handed the said memoiandum to Mr. Barton, requested him to communicate the contents thereof to Jir. Travers. 11. That immediately afterwards Mr. Barton took a copy of the said memorandum to Mr, Travers, and shewed it to him, at the same time informing him that the case would be again brought on for trial at this sitting. 12. On the sixth day of December last notice of trial for the then next sittings was served upon the defendant’s solicitor. 13 On the twenty-second day of December last this cause was set down for trial by a special jury, and afterwards appeared in the list of causes set down for trial, posted in the Registrar’s office. 14 Afterwards a precept was issued to strike a special jury for trial of the said action, and on the tliird day of January, 1877, the said jury was struck in the presence of both plaintiffs’ and defendant's solicitors.

15. Afterwards, on tho fourth day of January, 1878, a summons was issued by defendant's solicitor to strike this cause out of tluj list of causes for trial on tho ground of irregularity, a copy of which summons is ho.eunto annexed. XG. On tile hearing of tho said summons by Ills Honor Mr. Justice llichmond, tho said Mr. O. H. Barton objected on tho ground that tho irregularity, if any. had been waived, and that the application was made too late that the notice of trial had been accepted without objection, and that the parties had united in striking the jury, without objection from defendant's solicitor; and it was also urged that it was not necessary that tho plaintiff should abstain from setting down this cause for trial until the actual drawing up of an order for now trial, seeing that the Court had already intimated in sufficient time what that order was to bo. And it was also urged, as the

fact is, that the not making of the rule for new trial in soHicient time, was through no default of either the plaintiff or his solicitor, but solely through the delay of the Court. 17. That notwithstanding the said contentions, j\ir. Justice Richmond ordered the cause to bo struck out of the list of causes for trial at this present sittings. j H. S. Fitziirrbbrt, Sworn at Wellington aforesaid, this 12th day of January, 1878, before me, W. b. Buller, a solicitor of the Supreme Court of New Zealand. This is the copy summons marked “ A ” referred to in the annexe t affidavit of Henry Samuel Fitzlierbert, sworn before me this twelfth day of January, 1878. Signed, W. L. Buller, a solicitor of the Supremo Court of New Zealand . In the Supreme Court of New Zealand, Wellington district, between Carl Peters, plaintiff, and Jacob Joseph and {Walter Isaac Nathan, defendants:— bet the plaintiff, his solicitor, or agent appear before his Honor Mr. Justice Richmond at his Chambers Supremo Court House, on Tuesday, the eighth day of January, 1878. at eleven o’clock in the forenoon, or as soon thereafter as counsel can be heard to show cause why the record filed herein on the twentysecond day of December, 1877, should not be taken off the file and the precept issued to the sheriff to strike a special jury be annulled, upon the grounds following, that is to say—that no order for a new trial lias been obtained, and why the plaintiff should not pay the costs of this application. Dated at Wellington this fourth day of December, 18 . 77 ' Alex. S. Allan, Registrar. His Honor did not want to prejudice Mr. Barton's position, but his impression was that the two actions were totally disconnected. Hia opinion, as far as he could form one from an entangled mass of facts and irregularities, was that the action was essentially independent of tiie cross-action. He did not see that defendant in tiie present case would be put to any inconvenience by the trial of this action. It was a rule in principle he was following, and they could not do what was called poetical justice. Justice iu law courts was rough. JACOB JOSEPH AND CO. V. CARL PETERS. Tins was an action to recover the sum of £839 3s. Bd. balance of an account. Mr. W. T. L. Travers appeared for the plaintiffs, and Mr. G. E. Barton for the defendant. Defendant in his plea denied all the material allegations contained in the declaration. The following were sworn a special jury ; Messrs. R. J. Duncan (foreman), J. Billing, R. Shaw, J. F. E. Wright, H. Wilcox, R. George, J. S. M. Thompson, R. Port, C. P. Powles, H. Denton, J. Martin, J. M. Taylor, and Dunu. Mr. Travers, in opening the case, detailed the cause of action, and called Andrew Wylie, a cleric to plaintiffs’ solicitor, who proved a hill of sale held by plaintiffs over defendant’s stock in security for the defendant’s debts. Walter Isaac Nathan, a partner in the firm of Jacob Joseph and Go., merchants, stated that the particulars of demand in the action were a correct statement of the plaintiffs’ claim up to the date when they brought the action- This closed the plaintiffs’ case, and Mr. Barton then opened the defence, and called Carl Peters, who said he was an upholsterer carrying on business on Lambton-quay. The accounts were handed to witness by plaintiffs, and in those accounts commission was charged for goods bought on defendant's behalf. He disputed the correctness of charges made for interest, and stated that deductions shouM be made for goods sold by the plaintiffs to him, for which they should have charged him market prices as agreed in the bill of sale ; and he further stated that he could not tell what items were correct, and he disputed them all. Mr. Barton submitted that there had been no demand made for payment, because the account sent to defendant was £lO in excess of the sum claimed, that a proper notice had not been given under the bill of sale, and that the account was incorrect He was proceeding to enlighten the jury on certain facts in the case, when His Honor, interrupting him, said he had never heard such an opening iu all his life. It was highly improper. Mr. Barton said lie was stating his case in such a way that the jury would understand him. He knew perfectly well how to conduct it, for he had had twenty years’ experience, and had practised in Victoria. His Honor : It is my duty to see justice done if I can. Mr. Barton ; Does your Honor not approve of what I state ? His Honor: I really do not. Mr. Barton; Then I will begin again. His Honor: Oh, do not .do that. His Honor having directed the jury, they retired at half-past three, and after a short time returned into Court, finding on the issues put to them as follows : Did the defendant make and execute the deed of the 30th April, 1877, in the declaration mentioned? —Yes. Was the sum of £998 6s. 5d., or if not, was any other, aud what sum, due from the defendant to the plaintiff under the provisions of the said deed on the 16th August, 1877 ? £BSO. Did the plaintiffs on the said IGth August, 1877, demand payment from the defendant of the said sura of £9OB 6s. 5d.-—The plaintiffs demanded £9lB 17s. 3d. Did the defendant then pay the sum, or any part thereof?—No. Have the plaintiffs since the said 10th August, 1877, received payment from the defendant, or from any one on hia behalf of any, and if so, what sums of money on account of the monies due to them under the provisions of the said deed of the 30th April, 1877 ? £572 18s. 6d. Did the plaintiff after the 16th August seize and take posses-ion of certain goods and chattels assigned by the defendant to plaintiffs, by the deed of the 30th April, 1877, as security for payment of the debt sued for iu this action ?—-Yes. Wore the said goods aud chattels equal iu value to the amount of the said debt ?—No evidence. Did the plaintiffs after such se'zure and taking of the said goods to their own use, receive the same in full satisfaction of the said sum of £839 ss, Bd.? —No, Are the plaintiffs entitled to recover from the defendant any, and if any, what sum in respect of either of the causes of action in the declaration contained? —£277 Us. 6d. Mr. Barton asked his Honor to stay • xecution until after the trial of the said action. His Honor : Would not there be time to consider that ? Mr. Barton : Then I would ask your Honor to reserve leave for me to move to enter a verdict for the defendant on the ground that there was na evidence to warrant the finding. His Honor : I cannot do that. Mr. Barton : I also ask that your Honor will reserve leave to me to move for a nonsuit. His Honor : Oh, no ; I could not do that. The Court then rose.