Judge's Associate could be rectified. He offered in the meantime to pay the amount of the costs into Court. It was alleged that the order of the Judge dealt merely with the costs of the rehearing. HOLROYD, J. How far is the certificate of the Associate binding? Ought you not to have taken proceedings to set it aside? I think that at present I ought to dismiss this summons without prejudice to any steps the plaintiff may be advised to take to set right the Associate's certificate and to any other proceedings he may think fit to take thereupon. I allow the defendant 5l. 58. costs. Summons dismissed. Solicitors for plaintiff: B. P. B. Rymer (for Quick, Hyett & Rymer, Bendigo). Solicitors for defendant: Connelly, Crocker & Paling (for Connelly, Tatchell & Dunlop, Bendigo). R. H. C. F.C. 1898 July 29. LONG v. MILLETT AND ANOTHER. Practice-County Court-Action for slander-Separate counts-General verdict. Where in an action in the County Court for slander several separate and distinct utterances are alleged, upon one of which no evidence is given, it is the duty of the Judge sitting without a jury to make a separate finding of fact upon each allegation. He may not in such a case give a general verdict. APPEAL from the County Court at Sale. Action for slander by Alice Long, a domestic servant, against George Millett and his wife, Helena Millett. In her particulars of claim the plaintiff demanded 2001. damages in respect of four slanders alleged to have been spoken and published on 26th, 28th, 29th, and 30th October 1897. At the trial, at Sale, before a County Court Judge sitting without a jury, no evidence of publication of the slander alleged to have been spoken on the 28th October was given. The Judge gave a general verdict in favour of the plaintiff for 50l. and costs. No objection with regard to the form of the verdict was made at the trial. From this judgment the defendants appealed. Duffy (Meagher with him) for the appellants-There being four distinct counts for slander, and each count being a separate cause of action, the general verdict is bad, because upon two of the counts no evidence was given by the plaintiff. In Empson v. Griffin (a), some evidence was given upon a bad count. There the Judge gave a general verdict, and to save expense entered judgment for the plaintiff on one count. He could not legally do that, because the evidence on the bad count having gone to the jury, and the jury not having been told to ignore it, it could not be said how much damages was given upon the bad count. Counsel referred to Nolan v. Chirnside (b), and to Chitty's Archbold (14th ed.), pp. 666, 667. Bryant for the respondent-There are no pleadings in the County Court. If there is an action for slander, together with another cause of action, and at the trial four slanders are alleged but only three are proved, it could not then be said that a general verdict for the slander would be bad. [WILLIAMS, J. Each utterance is a separate and distinct cause of action.] According to Lee v. Riley (c), a plaint in the County Court is not to be construed with the same strictness as pleadings in the Supreme Court. There is no authority for the proposition that where a general allegation of slander is made, and no particulars are asked for or given, the plaintiff may not prove more than one slander. [A'BECKETT, J. If a claim for damages for slander be included with one for goods sold and delivered in the same plaint, and no evidence is given in the latter claim, and the Judge enters a verdict for 50%., could the Court say that one portion of the 50l. should be attributed to the latter.] Here The Judge would not be obliged to discriminate. there is only one cause of action. Under Sec. 134 of the County Court Act 1890 the Judge shall make a note "of any question of law raised at such trial or hearing and of the facts in evidence in relation thereto and his decision thereon F.C. 1898 LONG v. MILLETT. F.C. 1898 LONG v. MILLETT. and of his decision of the action," etc. That is a special remedy given. In order to test the whole decision a litigant can obtain the Judge's notes and an order nisi. At the trial in this case the parties dealt with three out of the four alleged utterances of the defendant Helena Millett. The Court must assume that the learned Judge, acting reasonably, did not pay any attention to the particular utterance no evidence of which was given. It is absurd to suppose that the Judge gave a verdict with regard to the slander about which no evidence was given. Counsel referred to Odgers on Libel (2nd ed.), p. 595, and to secs. 87 and 93 of the County Court Act 1890. Duffy in reply referred to Palmer v. Hummerston (d). MADDEN, C.J., delivered the judgment of the Court [MADDEN, C.J., and WILLIAMS and A'BECKETT, JJ.] In spite of the fact that pleadings in the County Court have been got rid of in order to save the expense which attaches to pleadings in the Supreme Court, it seems to be quite clear that the Legislature intended that the issues to be determined in any given case should be made plain, and should be kept distinct one from the other. Although the plaint summons states the plaintiff's cause of action, the defendant may, as soon as the case is opened, be asked for his defence, and to place distinctly before the Court the points upon which he relies. The issues are then presented to the Judge in a definite form for his determination. If this is not done great obscurity and difficulty may be caused, especially if the action goes on to appeal, by the indistinct manner in which the merits of the case are set forth. In this case four separate slanders are alleged by the plaintiff, one of them depending upon entirely different circumstances from the three others, and upon a different aspect of the law. This count is set out in the plaint, and is as carefully drawn a count for slander as it would have been in the Supreme Court. It is a separate and distinct count, and a separate and distinct cause of action. It is admitted that on (l) [1883] 1 Cab. & Ellis 36. the trial of the action no evidence was given in support of this particular count or cause of action. The learned County Court Judge has given a general verdict. It is quite consistent with that verdict that damages were given in respect of the particular count upon which no evidence had been given. He should make it plain that the judgment upon each count is recorded, and that he determined each issue separately, so that the record is clear. He should put it thus in his judgment— "As to the first count I find, etc.; as to the second I find, etc.," and so on. And when this is done he may give judgment for the total amount of the damages so found, and the judgment would be entered thus on the register of the Court. Here it is impossible to disentangle the findings upon each count. It is absurd to suppose that a Judge should be allowed to deprive defendant of the right of coming to Court and cross-examining witnesses, and yet to give judgment upon the particular cause of action as to which defendant has been so treated. In such a case the judgment cannot stand. So long as I can remember this principle of law has prevailed. The appeal will be allowed with costs; the judgment appealed from set aside with costs; the case to be retried before a Judge of the Supreme Court. Costs of the first trial to abide the event of the second. The case will be tried at Sale. F.C. 1898 LONG v. MILLETT. Madden, C.J. Appeal allowed. Solicitors for plaintiff: Eggleston & Derham (for Bushe, Sale). Solicitors for defendants: Lyons & Turner (for G. H. Wise, Sale). R. H. C. 1898 July 20, 28. Williams, J. [IN CHAMBERS.] BIGGS v. KELLY AND ANOTHER. Practice-Application for jury—Declaration of trust—Alternative claim for damages Where in an action the relief claimed is a declaration of trust in respect of certain property, and a transfer of such property to the plaintiff, or in the alternative damages for breach of agreement, such action does not come within the terms of Order XXXVI., r. 6, and a Judge has a discretion to refuse an application for a jury. Amoretty v. City of Melbourne Bank (8 A.L.T. 128) distinguished. SUMMONS. In his statement of claim the plaintiff Biggs set forth these facts:-In 1892, while the defendants were negotiating with the Mount Lyell Gold Mining Company No Liability for the acquisition of the company's mine, they agreed with the plaintiff that, if he used the best endeavour to bring the negotiations to a successful termination, they would give him 1,500 shares in a new company to be formed. The plaintiff fulfilled his part of the agreement, and the sale took place. A new company, the Mount Lyell Mining Company No Liability, was subsequently formed, but the defendants, in breach of the agreement, refused to transfer the 1,500 shares to the plaintiff. Alternatively the defendants or the defendant Kelly were or was allotted 1,500 shares in the new company, and were trustees or was a trustee of these shares for the plaintiff, and in breach of trust did not transfer these shares to the plaintiff, but appropriated them and the dividends upon them. The defendants were or the defendant was allotted 750 shares at the price of 58. a share in respect of the 1,500 shares to which the plaintiff was entitled. The Mount Lyell Mining and Railway Company Limited was formed in 1893, and took over the property of the Mount Lyell Mining Company No Liability, and the defendants or the defendant Kelly received 2,250 shares fully paid up to 3l., in respect of the shares in the latter company, to which the plaintiff was entitled. Subsequently 750 more shares in the former company were allotted to the defendants or to Kelly upon payment of 31. a share. |