Musgrove v McDonald [1905] HCA 50

High Court of Australia|1905-07-01|Before: O'Connor JJ, Gordon J, And P

H.C, or A. and the words "as though part of the estate of the donor,"

ees used only in order to indicate the way in which the duty Hewarv be calculated. It appears to me that when the legislature' Tur Kixc, used language so different in its phraseology in dealing with th

four different classes of cases, it would be impossible to gi

Appeal allowed. Order appealed varied. Judgment for swppliant fo £42 16s, 10d., with costs. Respond to pay costs of appeal.

Bes. Solicitors, for appellant, A. G. Roberts. Fextye Solicitor, for respondent, Guinness, State Crown Solicitor, eee eS FolV/Appl B. MB:

MUSGROVE AND ANOTHER . . . APPE PLAINTIFES, AND P McDONALD AND OTHERS . . »... RESPONDE DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF H.C. or A SOUTH AUSTRALIA.

Practice - Appeal - New trial - Verdict of jury - ireuit Court - The Con: ee (63 & 64 Vict. c. 12) sec. 73 - *< All judgments, decrees, orders and. se ADELAIDE, - Contract of sale - When property passes - Waiver - Sale of Goods Act (St

Nov. 1, 2. Australia) 1895 (No. 630). Metzovrse, i : Nov. 25, An appeal does not lie to the High Court of Australia from a verdict é jury, or from a judgment of the Supreme Court of a State founded upo Grin 0.2., general verdict of a jury, except by way of appeal from a decision of

O'Connor JJ. Supreme Court in an application for a new trial.

An application for a new trial after verdict, upon whatever ground, does not fall within the words of The Constitution, sec. 73 - <appeals from all judgments decrees orders and sentences" of Federal Courts or State Courts.

The nature of the jurisdiction exercised by Courts in granting new trials considered.

By memorandum dated 14th October, 1903, the respondents agreed to sell to the appellants 4000 4 and 6-tooth merino wethers, as inspected on 12th October, 1903, at 12s. per head, terms cash, delivery to be given and taken on or about the 15th December, 1903, at Morambro Station, off shears. It was further agreed by memorandum dated the 3rd December, 1903, that the respondents should sell and the appellants should purchase 2000 merino wethers, 4 years, as inspected, at 11s. 6d. per head, terms cash, delivery to be given and taken on or before the 15th December, 1903, at Morambro Station. Appellants brought an action for breach of these two contracts and in the alternative for conversion of 2000 of the sheep, alleging readiness and willingness and an offer on their part to take delivery of, and pay for, the sheep and refusal on the part of the respondents to deliver them. They further alleged that, on the 22nd December, 1903, and without any breach by the appellants, the respondents sold the sheep to a third party, without giving notice to the appellants. The defence was a denial of the performance of conditions precedent by the appel- Jants, and an allegation that on the 18th, 19th, and 21st December, 1903, notice was given them of respondents' intention to re-sell the sheep. Respondents also paid into Court the sum of £250, with denial of liability, and entered a counter-claim for £186 for the cost of pasturage for the whole 6000 sheep and for labour, tending and general expenses, arising out of appellants' neglect to take delivery of the sheep on the date agreed upon. The action was tried in April, 1905, before Gordon J. and a jury, at the Mount Gambier Circuit Court, when the jury, by direction, returned a verdict for respondents, on which judgment was accordingly entered. The appeal was from this judgment.

Parsons, (with him Torrens Ward), for respondents. This appeal does not lie. The action was tried by Gordon J. and a special jury at a Court sitting for the trial of issues in the

Supreme Court and constituted under the Third Judge and trict Courts Act 1858, No. 13,(South Australia). Thejuryg verdict for the present respondents under the Judge's dire and the present appeal is in reality an appeal against the ye The verdict must stand until there has been a motion for a trial in the Supreme Court of South Australia. The decisio Parkin v. James (1) does not cover the case of an appeal ag a verdict. The appointment of Gordon J. to hold the Court Mount Gambier "and also for the trial of all issues of the Supn Court," was made by proclamation in the South Austral Government Gazette, p. 638 (6th April, 1905).

The Circuit Court is constituted under the Circuit Court (South Australia) 1868, No. 6. Sec. 2 authorizes the Gover

Cireuit Court of such district, is to be held. Section 4 gives t Statutory Court its necessary attributes; makes them Cor Record, gives them a seal and offices, makes them Courts of and Terminer and General Gaol Delivery for all gaols within district, and for the trial of issues in the Court and the of damages, and enacts that they shall stand in the same re to the Supreme Court, as Courts of Oyer and Terminer 4 General Gaol Delivery and nisi priuvs in England stand to } Majesty's Court at Westminster. The Third Judge and Di Courts Act (1858, No. 13) sec. 2, empowers the Governor to is a Commission, directed to one of the Judges of the Supreme Cou authorizing him to hold a session of the Cireuit Court. 1 Supreme Court Act (South Australia) 1878, No. 117, sec. 4 p vides that the several jurisdictions previously exercised by! Supreme Court or any Judge thereof shall, so far as regal procedure and practice, be exercised by the said Court and Judge thereof in the manner provided. This section is fou i upon, but materially differs from the English Judicature Act 18 sec. 22, which transfers the jurisdictions and practice of exis Courts to the High Court of Justice and Court of Appeal. 12 of the South Australian Act provides that "any Judge of said Court may exercise in Court or in Chambers all or any p of the jurisdiction by this Act vested in the said Court in alls

causes, . . . as before the passing of this Act might have been

heard in Court or in Chambers respectively by any single Judge of the said Court," &. The Judicature Act 1873, sec. 39, contains the additional provision that "in all such cases, any Judge sitting in Court shall be deemed to constitute a Court."

The judgment sought to be appealed from is founded on the verdict of the jury. It has never been the practice of the Privy Council to entertain such appeals. The Supreme Court Act (South Australia) 1878 No. 116, sec. 15, provides that new trial motions are to be heard before the Full Court, and that no appeal shall lie from any judgment founded upon and applying a verdict "unless upon motion made to such Court or other proceeding taken therein to set aside or reverse such verdict or the judgment founded thereon." In Angas v. Cowan (1), the question arose as to the right of appeal to the Privy Council from a judgment of the Chief Justice in a case tried by him without a jury. The Supreme Court there laid down the rule that no appeal lay to the Privy Council as of right until the appellant had first appealed to the Full Court of the State. Sec. 16 of the Supreme Court Act provides that "every order or direction made by a Judge of the said Court, whether in Chambers or in Court, may be set aside or discharged by the Full Court, and an appeal shall also lie to the Full Court from any refusal of any Judge to make any order." In Giles v. Wooldridge (2), it was decided that an appeal lay direct to the Privy Council from a decree of the Primary Judge, unless the decree was appealed against to the Full Court. This however leaves untouched the decision in Angas v. Cowun (1), as it has always been recognized that a judgment of the Primary Judge in Equity is the same for purposes of appeal to the Privy Council as a judgment of the Full Court. The Hquity Act 1866-7, No. 20, sec. 9, provides that every decree or order of the Primary Judge shall unless appealed from be as valid effectual and binding . . . as if such decree or order had been pronounced and made by the Court. Circuit Court trials were merely inquests. The Judge who presided could not enter judgment. He returned to the Court the verdict, and on the fourth day of term the verdict was entered

on the record in the postea, and on that the Court in bane g judgment. Encyclopedia of the Laws of England, vol. p. 26, shows the history of jurisdiction of Circuit Courts Assizes. The Judicature Act 1873, sec. 16, transfers the juri tions of various Courts, including those created by Commis Assizes and Oyer and Terminer, to the High Court. By see. 2 the same Act express authority is given to issue commissi assize, We., as to any jurisdiction capable of being exercised by th High Court. The policy of the English Judicature Act have been to embrace all the jurisdictions previously existing it the High Court, while the South Australian Act kept the Cire Courts distinct, though following the English legislation in of respects. [He cited Wharton's Law Lexicon, p. 531, on theju diction of the Courts at nisi prius.] Before the Common Ii Procedure Act a practice had become established by which th Court in bane would entertain a motion, if made within the fir four days of term, to stay the postea, and if it were made o that there had been any miscarriage at the trial, to set asi proceedings at nisi prius and grant a new trial. The trial, th fore, at nisi prius was nothing more than an inquiry as to fact, no judgment could be entered except by the Court in bane: Sow Eastern Railway Oo. v. Smitherman (1); Dublin, Wicklow w Weaford Railway Co v. Slattery (2). It happened that Gordon J., who tried the case, was a Supreme Court Judge, but it m have been tried by any practitioner of not less than s years' standing. There is no judgment of the Cireuit Court but only a verdict, which stands until set aside in the proper w Neither The Constitution nor the Judiciary Act authorizes appeal to the High Court from a verdict of a jury.

In Tronson vy. Dent (3) the objection was taken that the appea was an application to set aside the verdict of a jury, and s not therefore be entertained, and their Lordships held that th would not entertain an appeal to set aside a verdict unless had been a previous application for the purpose to the Court i which the trial took place (4); Dargnino vy. Bellotti (5); Na

(1) 47,J.P., 773. (3) 8 Moo. P.C.C., 419. (2) 3 App. Cas., 1155, per Blackburn (4) 8 Moo. P.C.C., 419, at p. 446. LiJ., at p. 1205. (5) 11 App. Cas., 604.

hoy Ramdass v. Mooljee Madowdass (1); Mushadee Mahomed Cazwm Sherazee v. Meerza Ally Mahomed Shoostry (2); Santa Cana v. Ardevol (3); Stace v. Griffith (4). "A judgment founded on a verdict of a jury can only be assailed on appeal " (to the Privy Council) "on the ground that, on the facts found by the jury it is erroneous, and further the verdict of a jury is not the the judgment of the Court": Parkin v. James (5).

Starke for appellants. In form this is a judgment of the Supreme Court of South Australia, and the objection is not open on the record. The judgment on the record is in the following form: "This action having . . . been heard before His Honour Mr. Justice Gordon a judge of this Court . and Mr. Justice Gordon having ordered that judgment be entered for the defendants . . . therefore it is adjudged," &. The jurisdiction of the Circuit Courts is concurrent with that of the Supreme Court, which has jurisdiction to hear cases all over the State. The jurisdiction of the Supreme Court is conferred by Act No. 31 of 1855-6, see. 7 (South Australia). The Circwit Courts Act 1868-9, No. 6, sec. 6, shows that a mere transference of venue is all that is necessary to transfer an action from the Supreme Court to a Circuit Court. It requires the name of the circuit district to be stated in the margin of the declaration, and that shall be taken to be the venue. See. 7 enables the Supreme Court or a Judge to order a change of venue. Sec. 4 makes all Cireuit Courts Courts of Record for the trial of issues in the Supreme Court and the assessment of damages,

[O'Connor J. - The section goes on to say "and such Courts

shall stand to the Supreme Court in the same relation as Courts of Oyer and Terminer and General Gaol Delivery and nisi prius, in England, stand to Her Majesty's Court at Westminster."]

The venue could have been changed back to Adelaide, and it is not correct therefore to say the cause was transferred. If the cause were transferred to the Circuit Court at Mount Gambier, then the record would show the various transferences. If it is

(1) 3 Moo. P.C.C., 87. (4) 6 Moo. P.C.C. (N.S.), 18; LR. 2 (2) 8 Moo. P.C.C., 90, at p. 112. P.C., 420. (3) 1 Kn,, 269. (5) 2C.L.B., 315, at p. 339.

. the Supreme Court. In the Cirewit Courts Act there is no

a judgment of the Supreme Court, an appeal may be brou from it. The issues were tried by the Cireuit Court as

vision for appeal or new trial. It is a Court of Gaol Deli and must therefore have a very considerable jurisdiction in y it can enter judgments. Respondents' argument must be that is no jurisdiction to hear an appeal except on matters of hh but by the decision in Parkin vy. James (1), " order" under of The Constitution means any order. If a Judge tryii case without a jury wrongly finds something as a fact, of w there is no evidence, an appeal lies. Yet the Judge there met takes the place of the jury. In all cases it is a necessary quence of Parkin v. James (1), that there is an appeal from finding of the jury. It may be shown that the judgment proce upon a wrong finding of fact. If an appeal lies from a judgm or order it may be shown that such judgment or order is y upon any ground. The Privy Council authorities cited on beh of the respondents are met by sec. 73. This Court is bound } sec. 73, which must be interpreted without reference to the p cedure of any other Court not controlled by a similar se Here the judgment appealed from is the direction of the Jud; which really constitutes the judgment: Brown v. Lizars ( Reference to what the Privy Council have done in other ca and on a jurisdiction not raised by sec. 73, is not relevant.

(GrirritH C.J. - The cases cited by Mr. Parsons deal the question of what is a " judgment," and sec. 73 uses that in giving this Court its appellate jurisdiction.]

This was in substance a nonsuit. The Judge directed the ju to find a verdict for defendant. It was directed entirely on tl evidence of the plaintiffs and not on the strength of the defent ants' case. Being thus in effect a judgment of nonsuit, an appet will lie from it to this Court.

Parsons, in reply. If the direction of a Judge to the jur amounts to a judgment where is the line to be drawn? authority can be cited for such a proposition.

The Circuit Court and the Supreme Court are distinct tribunals. H. C. oF 4

The preamble to the Circuit Courts Act, 1868-9 (No. 6), contains the words "to make further provision for the trial of causes

at places remote from the Supreme Court." See. 2 pro- vides that "The Governor . . . shall . . . appoint a place, and fix the time - at which a Court to be called the Cireuit Court of such district shall be held."

Per Curiam. We think we had better follow the course adopted by the Privy Council in Tronson vy. Dent (1) and hear the whole matter. That does not presuppose that the objection is overruled.

[The appeal was argued accordingly. But, as appears from the judgment of the Court, the Court upheld the objection as to juri diction. The arguments on the points of law arising on the evi- dence are therefore omitted.]

GrirritH C.J. read the judgment of the Court as follows : - This is an appeal from a judgment of the Supreme Court of South Australia. The action, which was an action for damages for breach of contract for the sale of goods and for conversion, was tried in a Cireuit Court, when the jury, by direction of the presiding Judge, Gordon J., gave a general verdict for the defend- ants, upon which judgment was signed in the ordinary course. 'The appellants now desire to object to the direction. The judg- ment is in the usual form of a judgment after verdict, reciting that the action was heard before Gordon J. and a special jury, at Mount Gambier, that the jury had found a verdict for the defendants, and that the Judge had ordered that judgment be entered for the defendants. Then followed the award of judgment. This is undoubtedly a judgment of the Court, and, as the amount of the claim exceeded the appealable amount, an appeal lies from it to this Court. The judgment is not, however, on the face of it, open to any objection.

Before the merits of the case were opened, counsel for the respon- dents took the preliminary objection that the appeal was, as in

truth it was, in effect an application for a new trial on the gro of misdirection, and that such an application cannot be mad the High Court, under the guise of an appeal, when no appli for a new trial has been made to the State Court. this objection, they referred to several cases before the Jud Committee of the Privy Council, and to the Statute law of S Australia, as well as to the case of Parkin y. James (1),in wh

this Court intimated an opinion in favour of their content 0 The point did not, however, arise for decision in that case, an was not referred to in argument, otherwise than incidenta The respondents took the further point that, even if an ap in the nature of an application for a new trial, after a verdict a jury, would lie in the case of an action tried in the Sup n

Court, which, they contended, was under the law of South Au tralia a separate and independent Court. The point is one o great importance, as affecting the respective functions of thi Court and the Supreme Courts of the States. It has been ver fully and ably argued, and we will proceed to give our reasons length for the conclusion at which we have arrived. '

An Act passed in 1858, and called The Third Judge wi District Courts Act (22 Vict. No. 13), empowered the Governor in Council, from time to time, to issue a commission to a Judge o the Supreme Court, authorizing him to hold a Court of Oyer and Terminer, and of Gaol Delivery, ata time and place to be nam the commission, for the trial of felonies and misdemeanours, and f the trial of issues in the Supreme Court, and the assessment

Oyer and Terminer and General Gaol Delivery stand to Majesty's Court at Westminster. The Act No. 6 of 1868-9, com monly called the Circuit Courts Act, authorizes the Governor Council, by proclamation, to constitute cireuit districts, and appoint a place, and fix the time in each district at which "a Court to be called the Circuit Court of such district" shall be held (see. 2

Sec. 3 provides that, after the declaration of a circuit district, all commissions issued under the Act of 1858, "shall be holden" at

the several places and times mentioned in the proclamation made by virtue of the Act. Sec. 4 provides that Cireuit Courts shall be Courts of Record, having a seal and officers, that every Circuit Court shall be the Court of Oyer and Terminer and General Gaol Delivery for the district, and that "such Courts so holden," shall stand to the Supreme Court in the same relation as Courts of Oyer and Terminer and General Gaol Delivery and nisi prius stand to His Majesty's Court at Westminster. The Supreme Court Act 1878 provides (sec. 10), that commissions under the Third Judge and Districts Courts Act, and Cirewit Courts Act, may be issued to practitioners of seven years' standing, who may thereupon proceed to "hold such Courts," according to the tenor of the commission, and that the "Court so holden" shall have all the attributes of a Circuit Court under those Acts. See. 15 of the same Act provides that it shall be lawful for the Full Court, in any cause or matter in which a verdict has been found by a jury, or by a Judge without a jury, or by a Judge sitting with assessors, or in which a nonsuit has been entered or refused, to vary or set aside the verdict, or enter or set aside the verdict, or reduce the damages, and that any objection which might formerly have been taken by motion in arrest of judgment, or to enter judgment non obstante veredicto, shall be taken on such motion, and that no appeal shall lie from a judgment founded on a verdict, or from any order or determination of a Judge of the Court in any matter whatsoever, unless a motion has been made before the Full Court. to set aside or reverse the judgment, "in which case an appeal shall lie to such Court, and in such manner, and on such con- ditions as appeals now lie from judgments or determinations of the said Court or Judge." This last provision evidently refers to appeals to the Sovereign-in-Council, and to the Court of Appeal consisting of the Governor and Executive Council of South Australia, and was intended to prevent a direct appeal to either tribunal without a prior application to the Full Court. How far it would have been effectual, so far as regards the Royal preroga- tive, assuming it to extend to such cases, and how far it is affected by the Constitution of the Commonwealth, it is not now necessary to consider. But it is clear that it was intended to operate, as a pronouncement by the legislature, that a verdict on facts should,

as a matter of the practice of the Court, be regarded as a m merely preliminary to judgment, and not as a judgment ¢ Court. Sec. 16 of the same Act provides that, any order direction of a Judge may be set aside or discharged by the' Court, and that an appeal shall lie to the Full Court from refusal of a Judge to make any order.

The question whether a direct appeal lies from a verdict to Sovereign-in-Council has been several times considered by Judicial Committee. In the case of Nathoobhoy Ra Mooljee Madowdass (1) decided in 1840, a motion was dismiss the appeal, so far as it was an appeal from a decision of Supreme Court of Bombay, on its common law side, in the nat of a verdict on an issue directed on the equity side of that Com Parke B., who delivered the opinion of the Judicial Commit said (2): - * But then it is said that this finding of the Courton common law side, in the nature of a verdict, is a 'determinatic which may be directly appealed from. Undoubtedly su verdict, in a common law suit, might be indirectly appealed fi in an appeal against the judgment in that suit, which is foun on that verdict, the evidence, as well as the finding, being brou up as part of the proceedings, and included in the transe1 But the verdict only, prior to judgment being given, could appealed from in a common law suit; nor can this verdict on issue directed from the equity side, as a determination in ae mon law suit.

"There is, indeed, no common law suit. In trying the issue, t Court of law is merely ancillary to the Equity Court: it inve ti gates facts, and pronounces its opinion on them, merely in on le to ground some further proceedings in the equity suit: the verdi itself is no proceeding in the equity suit, it only becomes sow it is adopted and acted upon in that suit. It stands on the s footing as the finding of a jury in a distinct common law analogous to the case of a reference to the Master, which confirmed by the Court, and not before, is the subject of app If a party objects to such a report, he must except to it, and | overruling that objection and confirming the report, opens whole question of the propriety of the finding of the facts

(1) 3 Moo. P.C.C., 87. (2) 3 Moo. P.C.C., 87, at p. 96.

tained in it, to the review of the Court above; but if there be no exception, the report is not open to such revision. In the present case, the appellant meaning to object to the finding of the Court on the facts, should have applied to the equity side for a new trial, as a verdict against evidence; and having brought all the evidence before the Court, the refusal of a new trial, and consequent adoption of the finding, as one of the grounds for a decree, would then have been the subject of appeal; and the propriety of the decision on the facts would be considered and decided in a Court of Appeal. But as the appellant did not pursue that course, he must be taken to have made no objection to the finding, and the verdict on the issue, of which the postew is the only evidence, is to be treated as one proof of the truth of the facts in the cause involved in it, and may be acted upon accordingly. I say as one proof - not a conclusive proof, because it might happen that in the opinion of the Court of Appeal, the evidence in the cause was so strong that no finding of a jury, or the finding of the Court below itself, ought to weigh against it." x

In Tronson vy. Dent (1), decided in 1853, leave had been granted by the Supreme Court of Hong Kong to appeal from a verdict of a jury before the judgment had been signed. The respondents objected that the appeal was incompetent, as being in effect an application to the Court of last resort, to set aside the verdict of a jury, which was contrary to the practice of the English Courts, by which the proceedings of the Supreme Court of Hong Kong were regulated. The Judicial Committee allowed the case to be argued on the merits, and, after deciding that there was no error on the record, proceeded to deal with this objection. Their Lord- ships' opinion was delivered by Sir John Patterson, who said on this point (2): - * Now, the next question we come to is, whether or no an appeal will lie in such a case as this? The objection to the jurisdiction of this Court is raised on the part of the respondents, without any express notice in the reasons which are given in their printed case, and the point, as it seems to us, is one of very con- siderable importance, because, if appeals are to be brought here from the verdict of a jury, without any attempt having been made in the Court below to obtain a new trial, either upon the ground

(1) 8 Moo, P.C.C., 419, (2) 8 Moo. P.C,C., 419, at p.440.

that such verdict was against evidence, or that it was grounded the misdirection of the Judge, it is in truth and effect neitherm nor less than moving in this, the appellate Court, for a new tri which, if permitted, would be a most inconvenient practice, e9 trary as well to the usual course of this Court, as of the Com in England, where, even after a motion for a new trial made refused, or the rule discharged, if the objection does not ay on the face of the record, the Courts, being Courts of Error, not entertain such an application." After referring to the loe ordinances under which an application for a new trial mi have been made, he proceeded (1): - * Let us see, then, whi it be possible that there can be such an appeal consistently the ordinances. What is it that is appealed against? It is th judgment of the Court. Now, the judgment of the Court manifestly a right judgment, so long as the verdict remains. j

fore, the judgmerit which is given by the Judge appears to the only act of the Court, and it is only against an act of th Court that an appeal lies. .There is no other act of the Cour the verdict is not the act of the Court; the verdict is the act the jury, and I do not find anywhere in the Ordinances anything is said about an appeal against the verdict of the ju

would have been an appeal against that act; but I cannot s anywhere upon the face of these proceedings, or on the which are brought before us, how there is any appeal a;

Court; then, if that be so, what is this appeal? Why, it nothing more nor less than an application for a new trial; n0 an appeal against an act of the Court, but an application to ha the verdict of the jury set aside, and a new trial granted." again (2): - * The judgment, as I have already said, cannot appealed against, while the verdict stands, and this is in etfe and in truth neither more nor less than an appeal professing t (1) 8 Moo. P.C.C., 419, at p. 442. (2) $ Moo. P.C.C., 419, at p. 446.

» be an appeal against a judgment, but, in truth, an appeal by way = of motion to set aside the verdict, and to have a new trial. We « think, therefore, that we cannot encourage such a proceeding, ~ and that it would be very desirable to have it fully understood » that no such application can be made by way of appeal to Her Majesty in Council, to set aside a verdict, and to have a new » trial, unless there has been a previous application made to the } Court in which the trial took place, to have the verdict set aside and a new trial granted, on whatever grounds that motion might » proceed. " Still, as this is a case probably of the first impression, and as

it may not have been fully understood that this is or ought to be the rule on which appeals are to be allowed here; and we think the respondents ought to have applied to quash this appeal . on that ground, and as they seem to have conceded the question . from the course they have taken, that this Court had jurisdiction, _ we should have been very unwilling to have acted on what, we _ hope it will be understood, we mean to lay down as the rule on future occasions ; for if we saw that the justice of the case was strongly in favour of the appellant, we should have been some- _what astute in endeavouring to find some mode by which we _ might recommend Her Majesty that the case should be sent back : to Hong Kong; or, that in some way or other, the appellant should have an opportunity of applying in the proper quarter to have the verdict set aside and a new trial granted."

Their Lordships then dealt with the merits of the ease, on which _their opinion was adverse to the appellant, and concluded (1) :

- - We think the appeal does not lie under the circumstances; as

it is, in effect, an appeal against the verdict, and not an appeal _against any act of the Court," and the appeal was dismissed with _ costs. In Stace v. Griffith (2), decided in 1869, the Judicial Committee granted special leave to appeal from a judgment of the Supreme Court of St. Helena, founded upon a verdict for the plaintiff in an action of libel. The respondent appeared on the application "for leave, but did not then object that the appeal would not lie.

(1) 8 Moo. P.C.C., 419, at p. 459. (2) 6 Moo. P.C.C. N.S., 18; LR. 2 P.C., 420.

On the hearing of the appeal the objection was taken, case of Tronson v. Dent (1), does not appear to have been ¢ Their Lordships overruled the objection, on the ground the application for leave had been granted after full ai on both sides without the objection being taken, it was too to take it at the hearing of the appeal. They thought that ther had been a complete failure of justice in the case, a compl misunderstanding on the part of the Judge of what his duty y and a complete misleading of the jury, and they recommenda that the judgment should be arrested - not, however, on th ground of any error on the face of the record, but, apparently the only way of doing justice. It is difficult to reconcile thi case, in which the Judicial Committee actually exercised juris diction with Tronson v. Dent (1), where they held that such ' appeal did not lie.

In Dagnino v. Bellotti (2), decided in 1886, the objection taken that an appeal would not lie from a judgment of Supreme Court at Gibraltar, founded on a verdict of a Judge assessors, The practice of that Court as to granting new tr was practically the same as in the Courts at Westminster. opinion of the Judicial Committee (consisting of Lord Wa Lord Hobhouse, Sir Barnes Peacock, and Sir R. Couch) delivered by Sir Barnes Peacock. He said (3) : - " In the presi case it is contended that the judgment was wrong, becau gave effect to a verdict which was not warranted by evidence. If the verdict was not warranted by the evide the case fell within the rule which has just been read, whi states that the party may move for a new trial. The proj course for the appellant to have adopted was, if he consi that the verdict was not warranted by the evidence, to move t Court for a new trial. He has not exhausted the remedi which the rules and practice of the Court directed should | observed in cases where a verdict of the Judge and assessors i objected to upon the ground that it is not warranted by th evidence. It would be very inconvenient if parties, with moving the Court for a new trial, could be at liberty

(1) 8 Moo. P.C.C., 419. (2) 11 App. Cas., 604. (3) 11 App. Cas., 604, at p. 606.

ask Her Majesty in Council to set aside the judgment upon the ground that the verdict was wrong, without having taken that course which is pointed out by the rules made in pur- suance of the charter to be adopted in the case of an objection to averdict. . . . Her Majesty cannot alter the verdict or set it aside, and their Lordships are of opinion that they cannot advise Her Majesty to direct a new trial, the parties not having applied to the Court in the regular course instead of coming here."

We think that the fair result of all these cases is, that it was the settled rule of the Judicial Committee that an appeal did not lie to the Sovereign-in-Council from a verdict of a jury, or from a judgment of the Court founded upon it, unless there had been a previous application to the Supreme Court for a new trial. And we think that the provisions of the Constitution of the Common- wealth, conferring appellate jurisdiction upon the High Court, should be read in the light of this rule, and that, if they are so read, an application for a new trial after verdict, upon whatever ground, does not fall within the words "appeals from all judg- ments decrees orders and sentences " of Federal Courts or Supreme Courts.

Independently of authority, we are led to the same conclusion by a consideration of the nature of the jurisdiction exercised by the common law Courts in granting new trials. Mr. Parsons directed our attention to a very interesting and instructive historical summary of the law and practice of new trials contained in Lord Blackburn's speech in the case of South-Eastern Railway Co. v. Smitherman (1). He said: " At common law all trials by jury were before the Court in banc as trials at bar noware. The Court took the verdict according to what they thought the effect of the findings of the jury before themselves, and gave what they thought the proper judgment. When trials at nisi prius were introduced, at first only in the country, before justices of assize, and, at a much later period, in Middlesex and London where there were no assizes, before the Chief Justices of the Courts of Queen's Bench and Common Pleas, and the Chief Baron, the verdict was taken by the Judge who tried the case at nisi prius, according to what he thought the legal effect of the findings, but

facie, recourse to another or a different tribunal.

he could not enter judgment. He returned to the Cour verdict, and, on the fourth day of term, the verdict, as he retu it, was entered on the record in what was called the postea, on that the Court in banc gave judgment. A practice b Q least as early as the beginning of the 17th century, by which Court in bane could entertain a motion, if made within the fi four days of term, while the proceedings were, as it was calli in paper only, to stay the postea, and if it was made out ti there had been any miscarriage at the trial to set aside the p ceedings at nisi prius and grant a new trial. But they could no more. However clearly it appeared that the verdict ought have been entered for the other party, the Court in bane cou not enter it. The Judge who tried the cause at nisi pr might by his notes amend the postea, but not the Court. defect was partially cured by a practice which grew up, which the Judge, by the consent of the parties, for he eo not do it without, reserved leave to move in bane to enter verdict the other way." From this it appears that the ju diction to set aside a verdict and grant a new trial, cot only be exercised before judgment was actually signed, ¢ that the application for a new trial was not regarded as appeal from a judgment, but as an application to the eo trolling power which the Court exercised over its own pr ceedings to prevent injustice, the time within which the would entertain such an application being strictly limit Moreover, no appeal lay from the order of the Court on such application. A party who did not take advantage of his ri within the time limited, the first four days of term, was in estopped, by acquiescence, from disputing the correctness of verdict. The reason may, perhaps, be put on the analogy of rule which requires an objection for irregularity to be tal promptly, or, on the analogy of a limited time for bringing appeal. But, whatever was the original reason, the rule firmly established, that no sort of appeal lay from an ordinar verdict, except by application to the quasi-discretionary powel the Court, and such an application was not regarded as appeal. The word "appeal," indeed, seems to import, p

was founded on the misdirection of the Judge, the erroneous reception or rejection of evidence, or the perversity of the jury. In either case the party was prevented, by his delay and ac- quiescence, from taking any objection to the verdict itself.

It follows that, according to the practice of Courts of common Jaw, which, in the case of South Australia, is emphasised by the provisions of sec. 15 of the Act of 1878, the only way of taking exception to a verdict of a jury was by application for a new trial, and that a party who did not adopt that method was not in a position to dispute the facts as found by the jury. The verdict in the present case, which was a general verdict for the defend- ants, must be read as if the specific facts which established their freedom from liability had been found by the jury. By those findings this Court is bound, and, as upon them the judgment is right, the appeal fails.

Tn this view it is not necessary to consider the point as to the Cireuit Court being an independent Court distinct from the Supreme Court, since, on the assumption that it is in effect a branch of the Supreme Court, the appellants are equally bound by the verdict.

Nor is it necessary to express any opinion on the interesting and difficult points of law arising on the facts of the case. But it may be a satisfaction to the parties to know that we think that, even on the most favourable view of the law which we could take, the appellants could not have recovered damages in excess of the amount paid into Court (£250); and the case is not one in which we should have been disposed, even if we had the power, to give special leave to appeal.

Appeal dismissed with costs. Solicitors for appellants, Grundy & Pelly, agents for Lynch & McDonald, Melbourne.

Solicitors for respondents, Glynn & Parsons. H. E. M.

At a glance

Court

Decision date

Before

Source

Judgment (80 paragraphs)