COURT OF APPEAL.

New Zealand Times, Volume XXXIV, Issue 5654, 14 May 1879, Page 3

COURT OF APPEAL.

Monday, May 12,

[Before their Honors Chief Justice Prendergast Mr. Justice Johnston, Mr. Justice Richmond, Mr. Justice Gillies, and Mr. Justice Williams.)

[The following report ought to have appeared in yesterday's issue, but was accidentally delayed in transit.] The Court opened, without proclamation, at 11 o’clock, and after several applications to enter causes in the list had been disposed of the Court took the case of CALCDTT V. BINNEY (iN ERROR.) This was a proceeding in error, brought by the defendant in the action of Binuey v. Caloutt. to reverse or vary a judgment entered up by the plaintiff (Binney) in the Supreme Court, Auckland. The facts were shortly as follows :—Binney sued Caloutt for the amount of a bill of exchange drawn and endorsed by him, and which was dishonored by the acceptor, together with interest from the due date of the bill. The only plea pleaded by the defendant (Caloutt) was that ho had received no notice of dishonor. At the trial, which took place at Dunedin, the jury found that notice of dishonor had been given to the defendant, but the jury were not asked to, nor did they assess the amount recoverable by the plaintiff Binney, either for principal or interest. Upon the finding of the jury as recorded, the plaintiff Binney taxed his costs at Auckland, and entered up judgment for the amount of the bill, interest, and costs. It was upon this judgment that the defendant Caloutt took his proceedings in error, contending that inasmuch as there had been no formal award or assessment of interest it was not recoverable, and the judgment going as to the interest it was bad also in respect of the costs.

Mr. Macassey now appeared for the plaintiff in error, and Mr. James Smith for the defendant in error (Binney). Mr. Smith at the outset applied for leave to amend the judgment by striking out tho interest awarded, and stated that an offer had been made to the plaintiff in error some time since such an amendment, accompanied by a proposal to pay the costs incurred to that date. At a late stage the Court permitted affidavits to be read, showing what had taken place between the parties relative to the proposed amendment. Mr. Macassey relied upon Frederick v. Lookup (I Burrowes) as an authority for saying that if the judgment was bad in respect of the interest, it must go also as to the coats. Mr. Justice Richmond inquired whether the Court had not power, it it varied the judgment of the Court below, to send back the costs for taxation afresh, I

Mr. Macassey conceded that the Court might possess the power, but urged that the judgment as it stood was not sustainable. It was like a general assessment of damages in respect of several alleged causes of action where one or more of them failed.

Mr. Justice Gillies asked if there was anything upon the record to show that the plaintiff had recovered any coats to which he would not have been entitled had the judgment been limited to tho amount of the bill. To this it

was answered that the case of Frederick v. Lookup was on all fours with the present ; that in strictness the plaintiff in was entitled to have judgment reversed as to interest and costs, and that the sending hack the costs for fresh taxation was for the benefit of the defendant.

; Mr. Justice Johnston and Mr. Justice Gillies raised the question (apparently inclining to the view implied in it), whether it was not an erroneous assumption on the part of the defendant in error that the interest was not recoverable. The Court were bound to give judgment according to law, regardless of the admissions of the parties. After argument upon this point, Mr. Smith contended that the judgments for interest and costs were clearly separable, and that assuming the claim for interest could not he supported, no error in law was shown to exist with regard to the coats. It was impossible for the Court to say that the whole of the costs were not recoverable, and allowed in respect of the principal debt, whereas in Frederick v. Lookup they were incorporated with the damages erroneously allowed for detention of the debt claimed. The Chief Justice thought that the shilling damages awarded in Frederick v. Lookup were as easily separable as the interest in the present case. Mr. Smith continued his argument, urging that it would be idle to pretend that anything had been allowed in the Court below as costs in respect of the interest claimed. He also read the affidavits before referred to, relative to the offer made, aud submitted that even if the Court reversed the judgment as to interest, it ought not to allow the plaintiff his costs in the Court of Appeal, but, on the contrary, make him pay those of the defendant in error, Mr. Macassey, in reply, argued that the Court of Appeal had no power to amend ; that the defendant's application should have been made to the Supreme Court ; and that the defendant had a complete remedy in his own hands. Further, the defendant merely offered to waive interest, while in law the plaintiff contended the costs in the Court below were wrongly allowed. The Court took time to consider its judgment, and adjourned at 4.30 p.m. Tuesday, May 13. The cases of Fickmere v. Wren, and Regina v. Reid, occupied the Court the whole of the day.