APPEAL by the plaintiff from the judgment of the Supreme Court of Nova Scotia in banco (1) dismissing his appeal from the judgment of Archibald J. dismissing his action and allowing the defendant's counterclaim. The plaintiff claimed that his wife, the defendant, held certain land as trustee for him. The defendant, besides disputing the plaintiff's claim, counterclaimed for an accounting in respect of moneys alleged to have been collected by the plaintiff as manager or agent of the defendant.
R. A. Ritchie for the appellant.
G. R. Ramey and F. W. Bissett for the respondent. At the conclusion of the argument, the judgment of the Court was delivered orally by Kerwin J., dismissing the appeal with costs, subject to a variation (consented to by counsel for the parties) by striking out from -the order of Archibald J. a certain part of it (being that part which ordered an accounting and a reference for taking accounts). On the question of the ownership of the land, this Court was of opinion that it could not interfere with the findings of fact below; and that, as to certain questions not permitted to be 'asked at the trial ('and which, it was now admitted, should have been permitted), they would, if they had been answered, have had no effect upon the result.
J.-We are all of opinion that there must be a new assessment of the general damages of the plaintiff
Lillian Levy.
The amount awarded under this head,
$37,500, is so large that a jury appreciating the evidence could not reasonably have awarded that sum. Whatever the evidence, if any, in the new assessment may be as to another operation, any expenses in connection therewith have been included in the award of $2,500 to the plaintiff James A. Levy, so that, in any event, the plaintiff Lillian Levy would be entitled in that connection only to an allowance for pain and suffering.
The appellants are entitled to their costs in this Court. The respondents are entitled to their costs up to and including the trial, and two-thirds of the costs of the appeal to the Supreme Court of Nova Scotia in banco. The costs of the new assessment may be dealt with by the judge presiding thereat.
Appeals allowed with costs, and new assessment of the general damages of the plaintiff Lillian Levy ordered.
Solicitor for the appellant Canadian Pacific Express Company: C. B. Smith.
Solicitor for the appellant Nova Scotia Light and Power
Co. Ltd.: J. E. Rutledge.
Solicitor for the respondents:
Russell McInnes.