High Court of Australia
carn
HL J, Green, Gort Print, Melb.
|
IN THE HIGH COURT OF AUSTRexWIA.
...GOBN_AND ANOTHER
REASONS FOR JUDGMENT.
GROGAN
Ve
COEN & ANOR.
ORDER
Order of Full Court varied by setting aside the part of the order directing that the plaintiff should pay the costs of the appeal in the Supreme Court. Otherwise appeal dismissed,
appellant to pay costs of appeal to this court.
REASONS FOR JUDGMENT .
ROG,
Ve
C.QEN & ANOR.
LATHAM C.J.
, GROGAN __ve C.OEN & ANOR.
REASONS FOR JUDGMENT. LATHAM C.
This is an appeal from an order of the Full Court of the Supreme Court of New South Wales setting aside a verdict for £3750 for a plaintiff and entering judgment for the defendant.
A verdict can be set aside if it is against evidence, but in order to justify the entry of judgment for the defendant it is necessary that the Court in Banco should be of opinion that upon the evidence the defendant was/a matter of law entitled to a verdict: Supreme Court Procedure Act 1900, sec. 7.
The plaintiff's claim was made against the estate of his deceased brother John B. Grogan, the defendants being the executors of John B. Grogan's will. The plaintiff relied entirely upon his own evidence. The jury was warned by the learned trial Judge as to the danger of recognising stale claims against the estates of deceased Ahore the evidence of the claims was uncorroborated, put the jury believed the plaintirr and gave a verdict in his favour for £3500 and £250 interest.
The agreement as pleaded was an agreement between the plaintiff and his brother John, the plaintiff having a claim against John "the amount of which had to be ascertained" and in order to meet which it would have been necessary for John to sell certain land "and in consideration that the plaintiff would not insist upon the said claim being met immediately and in further consideration that the plaintiff would accept £3500 as being the amount to which he was entitled under the said claim", John promised the plaintiff that he would pay to the plaintiff £3500 and interest thereon until the said sum was paid.
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