The case was one in which the respondent, Grace Elias, sued the appellant, Matthew Henry Biggs, in the Magistrate's Court at Wellington for damages for injuries sustained by her in a collision between herself, when riding a bicycle, and a cart belonging to the appellant; the collision being alleged to have been caused by the negligence of those in charge of the cart on behalf of the appellant. The Magistrate, A. McArthur, Esq., gave judgment for the respondent for £59 118.

The grounds of the present application, as stated in the notice of motion, were (a) that the findings of the Magistrate were erroneous, and not justified by the evidence, and (b) that the appellant had discovered material evidence since the judgment.

The accident took place on the Oriental Bay Road, Wellington, and a party of children were playing on the beach close by at the time. Of these, two-namely, Violet Muir and Ralph Brewer-were called by the plaintiff (now respondent) at the hearing in the Magistrate's Court. Violet Muir had seen the actual collision, and gave evidence the effect of which was that it was caused by the negligence of those in charge of the defendant's (now appellant's) cart, and that the plaintiff was not in any way in fault. Ralph Brewer did not see the actual collision, but gave corroborative evidence. There was also the evidence of the plaintiff herself, and of a daughter of hers who was riding with her. The daughter was riding in front and did not see the actual collision, but gave corroborative evidence.

The additional witnesses whom the appellant now sought to call on the hearing of the appeal were four other children who had been on the beach at the time-namely, Jean Richardson, aged fourteen years; Olga Richardson, aged nine years; Grace Dixon, aged twelve years; and Lance Bridge, aged thirteen years; and also Harriett Tuely, domestic servant, who had come upon the scene immediately after the accident. The names of Jean Richardson and Lance Bridge had been given by Violet Muir and the boy Brewer on their crossexamination by the appellant in the Court below, on the first day of the hearing, the 21st of March, 1901, it being On the comstated that the boy Bridge was then laid up. pletion of the evidence for the plaintiff the hearing was adjourned to the 16th of April, 1901, and the evidence for the defendant was given on the 16th of April and the 2nd

S.C.

1901.

BIGGS

2'.

ELIAS.

of May. None of the children now sought to be called were called at the adjourned hearing. The judgment of the Magistrate was delivered on the 14th of May.

In support of the application now made an affidavit of the appellant was filed to the effect that, upon receipt of the claim made upon him by the respondent, he made inquiries and caused inquiries to be made among persons residing at or near Oriental Bay relative to the accident, but that they all stated either that they knew nothing about the accident or that they declined to say anything because they did not wish to be mixed up in a Court case. Counsel for the appellant stated, on the argument of the present motion, that the appellant had been unable to get the evidence of the children before because the parents refused to allow them to be questioned, and that he had been unable to get their names even until some of them were mentioned in the Magistrate's Court. The affidavit of the appellant further stated that since the hearing of the case in the Magistrate's Court, and since reports of the judgment had appeared in the daily newspapers in Wellington, certain persons had given him information, and that this had enabled him to discover material evidence which he had been unable to obtain previous to or at the time of the hearing in the Magistrate's Court. The affidavit then named the witnesses mentioned above, and stated that the appellant had been informed that their evidence was now forthcoming because it was considered that an injustice had been done, as the respondent had met with the accident through her own fault.

An affidavit by a clerk in the employ of the appellant's solicitor set out the effect of the evidence which the proposed new witnesses were prepared to give. From this affidavit it appeared that the witnesses Jean Richardson and Lance Bridge had seen the collision, and would give an account of it differing very much from that of the respondent and the witness Violet Muir, and attributing the blame to the respondent. It was also stated that the witnesses Jean Richardson and Grace Dixon would give evidence tending to show that the respondent was an inexperienced and bad rider. It was also stated that the witnesses Jean Richardson and Harriett Tuely would say that immediately after the accident the respondent's daughter had used words to the respondent to the effect that she ought to have been more careful, and that she ought to have got off her bicycle.

Gray, in support of the motion :

The evidence of these children could not have been got before. There is no provision regulating the mode or grounds of admitting fresh evidence under section 161. [STOUT, C.J., referred to Beaumont v. Tombs(1) and Tattle v. McKerrow(2).]

Whitcombe &

Beaumont v. Whitcombe & Tombs (1) went too far. A proper application does not seem to have been made in that case.

[STOUT, C.J.-Have you any case where a new trial has been granted on the ground of fresh evidence where the names of the witnesses were known?]

Some only of the names were known here. Mason v. Mason(3) is a case where fresh evidence was admitted in spite of delay. In Union Steamship Company v. Hobbs (4) the Court of Appeal admitted fresh evidence.

[STOUT, C.J.-There a model only was admitted.]

The danger of perjury, or bolstering up the case in the Court below, or manufacturing evidence does not exist here. If the witnesses had been adults it might, no doubt, be said that the appellant could have got them; but they being children, and their parents not allowing them to speak, makes a different case.

The discretion must be exercised according to some rule or principle. There are only two possible grounds on which additional evidence can be admitted. There must be either (a) surprise and no opportunity of answering some matter brought forward, or (b) new evidence which could not by proper diligence have been discovered at or before the hearing in the Court below, and which is such as ought to (not merely might) have led to a different conclusion; at all events, it must be such that it would probably have led to a different conclusion. Neither condition is complied with here. First, there is no surprise. The names of the witnesses were known, and the appellant should have taken the risk of calling them. Secondly, the tests applied in the case of De Courte v. Bouvy(5) are not complied with.

[STOUT, C.J.-It does not really seem that the evidence of Harriett Tuely is that the daughter said it was her mother's fault.]

S.C.

1901.

BIGGS

v.

ELIAS.

It should have been put to the daughter, if it was intended to contradict her.

Gray, in reply

The statement of the daughter was part of the res gesta. The evidence is as to something said by the daughter to the respondent immediately after the accident. The conditions contended for by the other side are here complied with.

STOUT, C.J.:

This is a matter of considerable importance, as I said also in a similar case which I had to decide about a fortnight ago -the case of Tattle v. McKerrow(1). In that case an application was made under the same section, and I refused the application. In this case also I think it may be well that I should state what my view of the meaning of the section is. The section is not so wide, in my opinion, as the rule under which the Court of Appeal has to deal with similar questions arising upon appeals to that Court from the Supreme Court; because in the Court of Appeal every appeal is by way of rehearing. Here the statute has not said so. The Court is presumed to proceed upon the Magistrate's notes of evidence, and to consider whether upon the Magistrate's notes of the evidence before him it must come to a different conclusion. It is not necessary for me to say now when, in my opinion, the decision af a Magistrate upon the facts ought to be reversed. It is only necessary to say here that in considering this question the Court is presumed, as a general rule, to proceed upon the notes of the evidence which was before the Magistrate.

Here it is asked that the Court should rehear the whole case, or take additional evidence. The ground upon which this is asked is that additional evidence has been discovered since the hearing in the Magistrate's Court. The additional evidence which it is sought to bring forward may be classed under two heads. First, there is the evidence of the girl Richardson and of other children who were present on the occasion of the accident, and whose evidence it is desired should be taken in addition to that of the girl Violet Muir and the boy Brewer; and, secondly, there is the evidence of Harriett Tuely, who states that she heard a remark alleged to have been made to Mrs. Elias by her daughter to the effect that the accident was her own fault.

(1) Ante, p. 524.

Taking the first point first: The girls whose evidence it is sought to give were with the girl Violet Muir, and they would, it appears, give a different account of the matter from hers. If it had been the fact that this evidence could not reasonably have been discovered at or before the hearing, then I think that this evidence should have been admitted, and that the same rules should be applied in considering this question as have been applied in granting or refusing a new trial on the ground of the discovery of fresh evidence. I think that additional evidence should be admitted under this section if the conditions which have been settled in connection with applications for new trials are satisfied. These conditions were recently again considered by the Court of Appeal in the case of De Courte v. Bouvy(1). It is not necessary to say whether this evidence would come within the class of evidence which would be a sufficient ground for granting a new trial. At all events, both parties knew that there were girls upon the beach. They knew who they were. They knew that they could give evidence. The appellant did not call them. It is said that he could not get the leave of their parents, and that he could not learn what their evidence would be. But that is nothing. Suppose that a witness refused to give evidence, that would be no ground for a new trial. The answer would be that the party should have compelled his attendance. And so here the appellant should have summoned these girls as witnesses, and taken their evidence in the box. Not having done so, he cannot ask that it should be admitted now. There should not, I think, be any different rules under this section from what have been settled in regard to new trials. The Court ought not, I think, to grant the admission of fresh evidence under the section unless under circumstances which would justify it in granting a new trial on the ground of the discovery of fresh evidence.

Then, as to the evidence of Harriett Tuely: I do not think it is necessary to decide whether the evidence is, in itself, admissible. I doubt very much whether it is. Mrs. Elias denies having heard such a remark as is alleged to have been made, so that it is not like the case of Hughes v. Shand (2), where what was said to the party and his replies and conduct were taken together. Here Mrs. Elias was lying on the ground suffering from shock, and she says she never heard what is alleged to have been said. No inference, therefore, (1) 18 N.Z. L.R. 392.

(2) 2 N.Z. Jur. N.S. S.C. 27.