Boak et al. v. The Merchant's Marine Insurance Company

of This was an appeal from the judgment of the Supreme Court of Nova Scotia, of the 16th May, 1876, making a rule nisi absolute for a new trial, and setting aside a verdict obtained by the Appellants in an action brought against the Respondents, to recover $4,500 under a marine insurance policy for the loss of the cargo and hull of the brigantine " Alexina."

1st. That the verdict is against law and evidence. 2nd. For the improper reception and rejection of evidence.

3rd. For misdirection of the learned Judge.

Ritchie, J. and Wilkins, J. Among other pleas, the Defendant pleaded that the vessel did not proceed upon and continue on the voyage indicated to the insurers, and that material facts were concealed from them, and no sufficient proof of loss given.

The reason given by Ritchie, J., for making the rule absolute -was that the verdict on these two points was against the weight of evidence; and Wilkins, J., concluded his judgment as follows: "My own mind is in a state of doubt and uncertainty, whether the cause of the loss of this vessel was (she being seaworthy, severity of the gale, or unseaworthiness that disabled her from effectually resisting it. The doubt could not have existed if the insured had had the vessel regularly surveyed at St. George's Bay, and thoroughly repaired there to the extent demanded by the result of the survey.

My opinion is, that justice to the Defendant's Company demands that this case should be submitted to another investigation."

22nd January, 1877.

Before arguing on the merits of this case it is desirable to have a decision on the question of jurisdiction of this Court which is raised in Respondent's factum as follows: " The Respondents will contend that no appeal lies from the judgment of the Court below in having granted a new trial, that being matter of discretion only, and decided in whole or in part, on the ground that the verdict was against the weight of evidence."

The rulewas made absolute, as appears by the printed case: 1st. Because the verdict is against law and evidence.

This brings the case under the 20th section of the Supreme Court Act which declares that an appeal shall lie from a judgment upon any motion for a new trial upon the ground that the Judge has not ruled according to law.

If judgment is wrong with regard to misdirection there still remains the fact that the new trial was grantid on the -ground that the verdict is against the weight of evidence, and we ,cannot get over that.]

The judgment, it must be admitted, is difficult to understand, but there was no reservation of any ground urged in support of application.

23rd January, 1877.

THE

We have read the judgments delivered in the Court below, we are satisfied that the verdict in this case was set aside as against the weight of evidence, and that .

R the application in this case being upon a matter of discretion only, it comes under the 22nd section of the Supreme Court Act. We do not think that the rule of the Court below was made absolute granting the new trial for misdirection, and we are, therefore, of opinion that this appeal should be quashed with costs.

THE CHIEF JUSTICE:

The appeal must be allowed with costs on the ground taken by the appellant in his factum, that the Court below had no power to add any fact to the special case without consent of -the parties, though such fact may have been ascertained by an order of a Judge, such order having been made against the consent of the party now objecting. We, therefore, allow the uppeal and adjudge that the rule for judgment in the Court below be charged, without prejudice to any application the parties, or either of them, may be advised to make in that Court as to the disposal of the special case or otherwise.