HARVEY V. MCWATTERS

IN THE HIGH COURT OF

vy. McWATTERS. ; ORAL ; ; REASONS FOR JUDGMENT

Judgment delivered at__STDNEY

HE, Dew, Gor, Print, Me.

©.12880/45 on.

HARVEY Ve MCWATTERS

ORDER

Appeal dismissed with costs.

HARVEY. Vv. MCWATTERS

JUDGMENT (ORAL) MOTTERNAN J.

KITTO Je

JUDGMENT (ORAL, MCTIERNAN J.

The nature of this suit and the issues which arose are shown by the pleadings. These have been read and I shall not recapitulate them There is no doubt as to these matters. The evidence has been read from the Bar table and minutely examined, I have read the evidence carefully. We have the evidence well in mind.

The case depended upon a question of fact. The appellant asks us to reverse the trial judge's finding. The question was whether the amount of the consideration was £4,500 or £2,000. The appellant's case was that it was the latter sum. The trial judge found that it was the former amount. The question depended on oral evidence. There is an irreconcilable conflict between the evidence called on behalf of the appellant and that called on behalf of the respondent. The trial judge accepted the evidence given by the defendant, his accountant and his solicitor on the main issue - what was the amount of the con- sideration?

In regard to the onus. Mr. Justice Roper did not desert or misapply the principle that the party who alleges must in general prove the affirmative of the issue. Indeed Mr. Justice Roper said that the onus rested heavily on the defendant to prove that the document executed by both parties on 42th March did not truly express the amount of the consideration. Besides that document, the appellant put in evidence Promissory Notes and a Bill of Sale showing that her indebtedness was £2,000 whereas her case was that the balance owing did not exceed £500 because concurrently with the execution of the document she paid £1,500 on account of the consideration of £2,000. She also signed the Bill of Sale at the same time to secure £2,000