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2-003 (Original)

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author,male,Sydney Gazette,un addressee
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Decisions of NSW Supreme Court
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Forsyth v. Forbes
This was an application to the Court for a new trial, in the above cause, grounded on various objections, taken to the learned Judge's direction to the Jury in summing up the evidence on the late trial. Mr. Norton opposed the application, which was supported at considerable length by Mr. W. C. Wentworth.
The Chief Justice, in delivering the judgment of the Court, observed that nothing, which had been alleged by Counsel in support of the Rule, had given him the least reason for hesitation in deciding upon the merits of the application. Nearly the same testimony and the same facts had been twice before him, and were therefore the more likely to make a deep impression. Even if the evidence on a former trial had operated (as had been observed by Counsel) on his mind so as to blend facts, it would be more serviceable to the plaintiff in the present action, as on that trial the Court had the evidence of Mr. Hall, which evidence if taken into consideration on the present occasion, would be favourable to the plaintiff. There were three grounds upon which the application was made, and he would, in the first instance, remark upon the last of the three, which was, that when he sat on the late trial he omitted to state to the Jury the circumstance of an injunction having been obtained against the defendant. That objection certainly would have been material, if it appeared to the Court by any evidence before it, that, after the appointment of a receiver, the particular property, the subject of the action, had been delivered over to such receiver. But was it not extraordinary that such receiver never took possession? How was that circumstance to be accounted for, except upon the presumption which naturally arose from his not having taken any step to get possession, that he did not consider himself entitled to it? But the doctrine of presumption was, that it only held good in the absence of facts; in the case before the Court they had positive proof that the property was in the possession of the defendant. His Honor was therefore perfectly clear upon that subject, though granting that he did omit taking notice of the point in his direction to the Jury, were there any cases in the books to shew that a mere omission in the charge of a Judge as to a part of the evidence which the Jury had heard was urged as a ground for granting a new trial. It was the object of that Court, and of all other Courts, to grant new trials where it appeared that injustice had been done; but it was also held for the interest of the Public, and to put an end to litigation, that a misdirection on the part of a Judge, where substantial justice had been done by the verdict of a Jury, was no ground for granting a new trial. With regard to the second objection, it had been admitted by Counsel that His Honor did not put it to the Jury that such and such was the fact, but from Mr. Henry Hall's testimony such and such appeared. It should be remembered that matters of fact were solely for the consideration of the Jury, who were equally competent to judge of the weight due to particular testimony, and, though the evidence was contradictory, yet, at the same time, in contradictory-testimony the Jury were not bound to believe one party more than another. They no doubt founded their verdict upon the whole of the evidence before them, and it was held that the circumstance of the Jury coming to a conclusion in favour of one side more than another, was no ground for a new trial, as to decide on the evidence was wholly within their province. Respecting the last ground of objection, the first in order taken by the learned Counsel, namely, that His Honor had stated to the Jury, that the plaintiff was precisely in the same situation as the person from whom he had purchased the bullock, he observed, if he considered in giving that as his opinion he had been wrong, there would have been some ground for granting a new trial. But His Honor was even more fixed on that, than any other point. He was still of opinion that Mr. Forsyth, who purchased the bullock, stood exactly in the same position as the person who sold it, so long as the deed of mortgage remained unrevoked. He was not then considering the equitable claims of the firm of Eagar and Forbes, but whether a mortgagor could justify by his own act and deed in assigning over property to Mr. Forsyth, the plaintiff. His Honor was certainly of opinion he could not, as he had no power to exercise any authority over the property, except by discharging the amount of the lien on it. Considering therefore the whole of the case, and with a view to putting an end to strife which could not prove of any advantage, His Honor would refuse the application, as he thought he should do an act of injustice even to the parties concerned, by granting a new trial, seeing that he should again most certainly give precisely the same directions, and another Jury would most probably come to the same conclusion. Rule discharged.