F.C. 1898 SCOWN บ. HAWORTH. Isaac A. Isaacs (A.G.) and Leon to move. F. G. Duffy and J. E. Hogan to oppose-There is a preliminary objection. This is not a new trial motion; but it should be. It is an appeal, and is wrong in form. In the first place the notice, which is intended for a notice of motion, is a ten-days' notice instead of an eight-days'-this asks the Court to do what it can and ought to do upon an appeal, viz., to set aside the judgment below and order a new trial. The Court has not power to do this. [HODGES, J. Is this not an appeal from a determination of the jury to the Court?] If it was headed "Notice of Appeal" only, and merely asked for what a new trial motion should ask for if made in proper time. The whole procedure shows that this has been treated as an appeal. Solomon v. Jarvis (a) lays down the procedure for a new trial, viz., by notice of motion. This is returnable in eight days. The proper alternative course below would have been to ask for a direction that the point should be reserved. Under the old common law procedure there was no such thing as appeal. Isaac A. Isaacs, A.G.-The proper course under Order XXXIX., rr. 1, 4, is by appeal, and the notice is an eight-days' notice. In Solomon v. Jarvis the converse occurred. There was, in that case, a trial by jury, and notice of motion for a new trial. There is sufficient notice here to enable a new trial to be asked for: Allcock v. Hall (b). WILLIAMS, J. The only difficulty is as to the ten days' notice, but we can amend that. I think we may hear this appeal. The appeal was then argued. Isaac A. Isaacs (A.G.) and Leon-Later decisions show a tendency towards weakening the strict rule against granting new trials on the ground that the verdict is against the weight of (b) [1891] 1 Q.B. 444. (a) [1886] 12 V.L.R. 76. evidence: Aitken v. McMeckan (c); Spencer v. Jones (d). The Court may upon this motion enter judgment for the defendant: Stephens v. Shire of Belfast (e); Forbes v. McDonald (f); Allcock v. Hall (g); Bobbett v. South-Eastern Railway Co. (h); Toulmin v. Millar (i); Ogilvie v. W.A. Corporation (k). WILLIAMS, J., referred to Ousten v. Mullen (l). F. G. Duffy and J. E. Hogan, upon the first question, referred to Metropolitan Co. v. Wright (m); Phillips v. Martin (n); Seaton v. Sheridan (o); Guest v. Goldsbrough (p). Isaacs, in reply, referred to Australian Steam Navigation Co. v. Smith & Sons (q). WILLIAMS, J. My brother Hodges and I think that this case should be tried again. There is no doubt that the evidence is contradictory, and that there is evidence both on one side and on the other as to the main question in this case, but that is not a conclusive reason why the Court of Appeal should not grant a new trial. In Allcock v. Hall (r) the evidence was contradictory. There was evidence both ways, but the Court went further in that case than we are asked to go-viz., they were asked to enter a verdict for defendant, and they did so. So in Spencer v. Jones (s). There the evidence was contradictory, and the evidence of the witnesses on one side was against that of the witnesses upon the other, yet a new trial was granted. So in Aitken v. McMeckan (t) the evidence was contradictory, and so in the last case cited, Australian Steam Navigation Co. v. Smith & Sons (u). Therefore the fact that there is evidence on both sides is plainly no reason why the Court should not exercise its (c) [1895] A.C. 310. (d) [1897] 14 Times L.R. 41. (e) [1874] 5 A.J.R. 79. (f) [1874] 5 A.J.R. 85. (n) [1890] 15 App. Cas. 193. (p) [1886] 12 V.L. R. 804. (7) [1889] 14 App. Cas. 318, at p. F.C. 1898 SCOWN v. HAWORTH, (g) [1891] 1 Q.B. 444. (h) [1882] 9 Q.B.D. 424, at p. 430. power to grant a new trial if it think that a new trial is just. The real test seems to be whether the verdict returned by the jury is such a one as in the opinion of the Court a jury might reasonably find upon the evidence before it. Such a principle renders it necessary to examine into the nature and the class of the evidence which one side or the other relied upon. And if it be found that the evidence upon one side is contrary to the evidence upon the other, and that the written documents put in evidence support the version of one side rather than the version of the other, then the evidence given on one side stands on a superior plane to that given on the other side, and the Court may exercise its jurisdiction by granting a new trial. We think that the present case falls within the principles to which I have referred; though the evidence is contradictory, though the oral evidence points both ways, yet the evidence for the defendant is supported in a way in which the evidence for the plaintiff is not supported. It is supported by books and other documents, and by facts which are not in dispute between the parties. It has been the practice of this Court, and in England, I believe-certainly in this Court that the Court while granting a new trial will not say more than it can help. Therefore I do not intend to go into this matter at any length. But, as bearing out what I have said, viz., that the version of the defendant is supported by books and other documents and by admitted facts, it is only necessary to refer to a few matters. These books, according to the plaintiff's version, were kept in the Melbourne office, were his books, his property, and the clerks (according to his version) who made entries in them were his servants, and he used to examine these books, and was responsible for them, and in these books appear entries in which he is shown to have received wages at 31. 108. per week. Then there is the fact (I do not wish to comment much upon it) that, undoubtedly, the defendant had advanced a large sum of money to the plaintiff. The plaintiff says this was a loan; that it was advanced to him by the defendant. There is no doubt about the fact that a sum of money was advanced. The plaintiff says it was a loan; it is a singular thing if it were a loan that there was no interest charged upon it by the defendant, and none was paid upon it by the plaintiff to the defendant; and that there was no security taken for it by the defendant, and no time fixed for the repayment. Then the way in which the loan is made, so that the plaintiff might operate upon it, is singular. The way this is effected is that the defendant opens an account with the bank in his (the defendant's) own name, and then he directs the plaintiff (exhibit C) how he is to operate upon that account, tells him how he is to draw cheques, and that he is to sign "pp. J. Haworth," and then add his own name. He is to borrow in this way ont his account, which is opened in Haworth's name. If this had been a loan or advance to the plaintiff there were other ways in which the money could have been advanced or lent to plaintiff (as he says it was lent) without resorting to this extraordinary method of doing it. Then there is the fact, to which I have alluded, that no interest was charged or paid, no security taken. Further, these Melbourne premises, at which plaintiff said he carried on his own business, are insured, and the merchandise in them, which, according to the plaintiff, is his own property, is insured in the name of Haworth, and the premium and the receipt given with the premium are given to Haworth, and the policy comes into Haworth's possession, and he holds it. Now, anyone would think that if this merchandise was the property of the plaintiff that he was most highly interested in securing that property against loss by fire, and would take care that the policy was issued in his own name, and was in his Own possession. Then there is the fact that no charge was made for the work which Haworth did in connection with the Melbourne business; and there is this fact, to which my attention is drawn, that when this deficiency arises, and there is a disturbance about it, Haworth writes to the plaintiff asking him to give up the premises, and it appears that the plaintiff does so almost immediately, not taking up the position of one who says "This is my business; I am going to carry it on." I do not wish to examine the facts too closely. It is sufficient to mention these facts in order to show the principle on which the Court acts. It is admitted that the evidence is contra F.C. 1898 SCOWN V. HAWORTH. Williams, J. F.C. 1898 SCOWN υ. HAWORTH. Williams, J. dictory, yet that there are a number of admitted facts, and a number of documents, including these books, which give strong support to defendant's case. I may state that I rather agree with Mr. Duffy's criticism of the letters, and that in all of them I cannot point to any except exhibit C, and a doubtful expression in exhibit 13, which is inconsistent with the plaintiff's case. On these grounds I think it is better that this case should be re-ventilated. A'BECKETT, J. I do not think this is a case in which there are any documents which can be said to necessarily constrain the jury to take a view in favour of the defendant, but in a conflict of testimony, and from my own recollection of the case which was before me, I know how many matters there were which the jury might legitimately consider, and on which they were entitled to come to a conclusion. Therefore, though I cannot say that their verdict satisfied me, and I feel there is strength in the different facts which have been adverted to by Williams, J., if I were alone in this case I should require further time for consideration before I would grant a new trial. I do not wish to be taken as dissenting from the view expressed by the other members of the Court. I feel there would be no advantage in hearing further argument, or in postponing the decision by reason of the condition of my mind upon the subject. I do not feel as strongly in the matter as the other members of the Court, and I have a doubt which has not been entirely removed, but I do not dissent from the judgment of the Court. Motion allowed, with costs. Solicitors for defendant (appellant): H. A. Brandt. R. H. C. |