-Mar.
JAMES MUNROE (PLAINTIFF-) ...
*May
JAMES McNAMEE,
PERSONALLY
AND
As
EXECUTOR
MARY
R
N McNAMEE, DECEASED, (DEFEND- RESPONDENT. ANT
.. ...
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APPEAL FROM THE TERRITORIAL THE YUKON TERRITORY.
the judgment of the trial judge in toto, but, as the majority of the court has come to the conclusion to send the case back to re-assess the damages, I will not dissent.
DAVIEs J. concurred with Idington J.
NESBITT J. concurred with Idington J.
J.-This appeal should be allowed and the judgment of Mr. Justice Craig restored upon amendment to be allowed.
A careful consideration of the judgments of Mr. Justice Dugas and of Mr. Justice Macaulay and the evidence they respectively lay stress upon, and the rest of the evidence supporting defendants' view of the case, leaves no doubt in my mind but that the learned trial judge is right in finding that the defendants had trespassed.
Much of the confusion that exists, arises from attaching too much importance to some answers of the witness Hovland, which if taken as literally and mathematically correct, may furnish an apparently good foundation for what the majority of the court below have built thereon.
Such an interpretation of the witness's evidence is not warranted by it as a whole. He did not, though placing his finger at point "E " in Exhibit H, intend to convey the meaning that there was at that point, as distinct from shaft No 3 on same plan, another shaft with timber in it, and lagging leading from it towards or across the line dividing 21 from fraction 20a. If he had been for a moment so understood by court and counsel, we would have had much more relating to this point E than we have been favoured with. The witness, quite honestly, put himself, by his speaking of the centre of the cut and distances he gave from that point, at another place than he would be, consistently with holding him as referring to shaft No. 3 in much of his evidence.
It is to my mind just one of those obvious errors that occur daily at the trial of cases where a witness, however much he tries, may not be able to be absolutely correct in regard to either time or space, and especially when dealing *with maps plans which many intelligent men often cannot comprehend.
The witnesses have been so numerous and the holes they refer to have been in their stories multiplied so many time beyond what appear on the plans before us, as to render the case somewhat troublesome. The learned trial judge, and counsel, I have no doubt, understood what each witness referred to, and when the witness happens to speak of "this" and "that," " here" and " there," without specifically identifying on the plan the point referred to, he was not confusing anybody at the trial.
This furnishes to my mind (in addition to the usual reasons for so doing) abundant reason for here accepting the judgment of the learned trial judge rather than that in appeal. I think it is not at all a case where there is any need for assuming wholesale perjury to have existed in any view one might take of the case.
But there is needed in the trial .judge of a case like this that keen discrimination that weighs the evidence by tests that separate, as the trial proceeds, the results of the accurate from the inaccurate witness, the candid, truthinl one from the one less so.
I am, therefore. slow to suggest that the learned trial judge may have erred in his finding wilful carelessness.
It is, however, by assuming that in the main the witnesses tried to give us the truth that we are here enabled so to reconcile nearly all the evidence, with the result arrived at. In doing so we have to assume defendant and his witnesses, wiih one or two exceptions, honest, and if honest there cannot be that wilful carelessness imputed to the defendants that the law requires before assessing damages on the scale which has been adopted- I think the milder rule suggested in Trotter v. Maclean should be adopted and the defendant should be allowed in any event the full cost of getting out the gold in addition to the mere cost of washing after the earth was dug out.
I think, too, the referee has been influenced by the severer rule having been adopted, into treating this piece of ground as exceptionally rich as compared with all the surrounding ground, apparently thinking the defendant should be punished with a very high average.
I offer no opinion as to the proper result other than to say I am of opinion the result arrived at is unreasonable and excessive, and is not supported by the evidence.
It is not clear that in law the respondents who raised by their statement of defence the issue of title are precluded by their failure to press it at the trial from now taking the objection they have done as to
Bonner not being a party.
At all events the .defendants are entitled to have the doubt removed and Bonner, in whose name (with that of his partner) as one of the partners the license stood when some of the trespasses were committed, bound by the recovery herein.
I think, therefore, he should be added as a party plaintiff.
He seems to have assigned his rights to his partner Kirkpatrick. That assignment may not so have transferred his right of action as to vest it in
Kirkpatrick.
But evidently he intended to sell all his interests to the remaining partner, and that sale carried with it the rizht to use his name.
The case has been tried as if the defendants were liable therein for any of the trespasses that the licensees or any of them might have a right to com- J. plain of, and to give effect to this result let the suggested amendment be made; to carry out this let the court below amend the record and the referee then re-assess the damages on basis indicated.
The appeal then should be allowed with costs. See Harper v. Godsell (1) at p. 428; Dawson Great Northern and City Railway Co. (2); May v Lane Colonial Bank v. Whinney (4); Job v. Potton (5); Caldwell v. Stadacona Fire 4- Life Insurance Co. (6). Appeal allowed with costs.