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Decisions of the Superior Courts of New South Wales, 1788-1899

Hill v. Pattrick [1847] NSWSupC 29

sale of goods, new trial

Supreme Court of New South Wales

Stephen C.J., Dickinson and Therry JJ, October 1847

Source: Sydney Morning Herald, 28 October 1847, in Supreme Court Collection, Vol. 2, p. 19

This was an action of assumpsit. The declaration stated that the plaintiff bought of the defendant fifty tons of fine flour, but that fifty tons of inferior was delivered. The case was tried in August last, when the Jury found for the plaintiff, damages £100. The case now came before the Court on a motion for a new trial, on the ground that the verdict was against evidence, and that His Honor the Chief Justice had improperly admitted evidence as to the condition of other flour, (which, together with this, the subject of the present action, went to India in the schooner Shamrock), upon its arrival in India.

Messrs. Broadhurst and Holroyd appeared in support of the motion for a new trial, and Mr. Foster contra.

His Honor the Chief Justice said, that he was of opinion, that upon balancing the evidence adduced at the trial, both by the plaintiff and the defendants, that the balance was in favour of the defendants, and therefore a new trial ought to be had in the case. He further said, that he thought he had rightly and properly admitted the evidence as to the condition in which the other flour arrived in India , going in the same vessel, and going through the same vicissitudes. It was true, it was not very weighty evidence, but it was such that it ought not to be excluded from the consideration of the Jury.

His Honor Mr. Justice Dickinson intimated that without departing from any former rules recognised by this Court, upon a careful perusal of the evidence adduced at the trial he was of opinion that substantial justice had not been had in the cause, and therefore a new trial ought to be had between the parties. And he was further of opinion that the chief evidence adduced on the part of the plaintiff was at the best mere matter of opinion, and if it had been objected to on that ground the objection would doubtlessly have succeeded; and then the plaintiff's case would scarcely have been substantiated.

His Honor Mr. Justice THERRY, in effect, delivered judgment in conformity with thejudgments of the other members of the Court.

 

Published by the Division of Law, Macquarie University