THIS DAY.

Auckland Star, Volume V, Issue 1300, 24 July 1874, Page 2

THIS DAY.

His Honor commenced summing up in the case Macfarlane v. Harris shortly after ten o'clock, the jury summoned for the case Harris, sen., v. Macfarlane No. 1 being dismissed until Monday next, and for Harris, sen., v. Macfarlane No. 2 until Tuesday.

His Honor said there were three different causes of action stated. Looking to the issues, also, thejury would find that each issue involved several questions. They might take three of these as disposed of, namely, the swearing of the information for inciting to murder, its dismissal, and the failure to prove it. The difficulty they had to deal with was that involved in the other two issues : —Whether Harris did prosecute the plaintiff falsely, maliciously, and without reasonable probable cause. In order to prove that the prosecution was instituted maliciously it must be shown that theie was an improper motive. It was not sufficient to prove that the person laying the information was mistaken. If the defendant prosecuted under a dire mistake and under the advice of others, the prosecution was not a malicious one. The other question they had to determine was : did the defendant prosecute Macfarlane without reasonable probable cause. And in connection with this issue he had reserved the point raised by Mr MacCorniick, whether it was not the duty of the judge to nonsuit the case if no conflict of evidence had been shown and it appeared that there was reasonable ground for the prosecution. He had thought it right to take the opinion of the jury, reserving the point for further consideration if their decision rendered that necessary. He might mention that the question of what constituted "reasonable probable cause was one of the most difficult of nisi prius questions. He cited a case in which the point at isaue, namely, whether there was reasonable probable cause for an information laid against a person for stealing a gun, had three times been decided by judges—once by a court of eight judges, whose almost unanimous decisions were afterwards upset by 6be House of Lords. The jury would understand from this why he had reserved the point raised by Mr MacCorniick. In considering the question of reasonable probable cause the statements of Thomas and Andrew Craig had an important bearing. (His Honor here read the written statement of Thomas Craig in in which he alleged that Mr Macfarlane had repeatedJy incited him to murder Mr Harris.) His Honor proceeded to observe that the written statement of Andrew Craig confirmed that of his father a8 regarded the assertion that a proposition to murder Mr Harris had been made by Macfarlane. Doubt had been thrown on the veracity of Thomas Craig, but there was nothing in the depositions calling in question the truthfulness of Andrew Craig. It was not shown that he was given to drunkenness, or was otherwise than a re-spectably-conducted young man. But the question the jury had to consider was not— Did or did not Macfarlane incite these people to murder Mr Harris, or did he do so in a 1 ,el he luesfcion was—What was said and done to lead Harris to lay the informations ? Mr Harris in reply to this said " The facts are written and before you, and whether ngnt or wrong, those are what led me to take ai tu? n>" The jury had not to consider whether, even with the statements of the Graigs, a cautious man would have held back and let things just take their course, but if Harris honestly believed those statements, and therefore prosecuted Macfarlane, even if he did so erroneously they must give their verdict for the defendant. The charges made by the Craigs were direct enough, and if true, were sufficient cause for the action taken, by Harria;. and what the jury had to

determine was: did Harris believe those statements to be true, and on that account institute the prosecution -which foimed the ground of action? His Honor then proceeded to read over the evidence at some length. TTc observed that the testimony of Mr CuDningbamat any rate shewed that Mr Harris, after laying the informaticma did not slink out of the matter or refuse to proceed without assigning a reason, mere fact of withdrawing from proceeding with the other two cases did not indicate % want of reasonable cause. A man h#winf; failed in one action, and knowing tha#*'1?v v evidence in others was similar might reas v

ably assume that they wonld also be dia-.,, missed. It was not an uncommon course for counsel to try one action and let others abide the result. His Honor then read over the letters written by Mr Macfarlane with the view of publication, and observed that they shewed^ the very strong feeling of animosity entertained by Mr Macfarlane towards Mr Harris. He also commented at some length, on the steps taken by Mr Harris before swearing the informations Jt appeared that he bad consulted Mr xMacCormick and Mr Brookfield, as well as Mr Rees, and had obtained a written opinion from Mr MacCormick, expressing the belief that there were sufficient grounds for laying such a charge, while Mr Brookfield said : " Certainly the case ought to be proceeded with, and Macfarlane must be committed." With regard to the veracity of Thomas Craig his honor observed, in commenting on Mr Harris's evidence, that •Craig's testimony had repeatedly been adduced by Macfarlane in actions against Harris, and even at the present time an order had been obtained from that Court compelling Mr Macfarlane to proceed with an action entered two years ago, and he pleaded as a reason for delaying it that he wonld have to rely largely on the evidence of Thomas Craig, whose testimony could not be obtained while an arbitration between them was proceeding; It would appear, therefore, that the plaintiff in 1872 regarded Thomas Craig as a credible witness, and was still of that opinion, seeing that he held his»evidence to be of such importance as to form a reasonable excuse for postponing the hearing of a cause. The jury must consider this when determining the question whether Mr Harris was justified in giving credence to the statement made by Thomas Craig, and in acting upon it. After carefully reviewing the whole of the evidence his Honor remarked that the question the jury had to consider was whether or not the defendant honestly and sincerely believed that he was justified, and that there was reasonable and probable cause for bringing the informations against the plaintiff. If he really did believe that there was just and reasonable cause, and the jury were convinced of this, then this action must fail altogether. It was clear on the other side that there had been a misunderstanding between plaintiff and defendant, whicfi might have caused Mr Harris the more: readily to believe the Btatement of the Craigs. It was, moreover, the duty of plaintiff to show that there was not sufficient cause for laying the informational The question for the jury therefore to consider was : Did the defendant entertain a sincere belief in those accusations, and was it a proper prosecution for him to bring ? The question of damages would also be a matter for their consideration.

The jury retired to consider their verdict, and returned at half-past two, when the foreman (Mr Binney) said there was not the shadow of a chance of the jury agreeing as to the verdict.

His Honor replied that the Court had no power to relieve them, and they must retire again, and at the expiration of six hours the Court could accept the verdict of five-sixtha of the jury, namely ten. The jury were then locked up.