QUINLAN-SWAN CASE.

Auckland Star, Volume XXXIX, Issue 43, 19 February 1908, Page 3

QUINLAN-SWAN CASE.

CLAIM FOR DAMAGES. NON-SUIT GRANTED. In the ease of Patrick Quinlan v. John George Swan and others, heard before Mr Justice Denniston at the Civil sitting of the Auckland Supreme Court in November last, the written judgment of his Honor was received yesterday and read to the parties interested. In the course of his judgment, his Honor said that plaintiff was an hotel-keeper in Auckland, and the defendants were trewers carrying on business in Wanganui. The transactions commenced by defendants in May, 1006, advancing the plaintiff £100, the consideration being the getting of a share of his trade. Plaintiff got into arrears with his payments, both in meeting bills and on current account. In September he had met one of the defendants in Auckland, and had a settlement, giving promissory notes for the balance. These notes were dishonored, and on January 31st, 1907, a summons on the Magistrates' Court had been issued in respect of one such note for £37. On that date plaintiff wrote to the" defendants on the subject of his financial position with them, and enclosed two cheques (one post dated) in settlement of the summons. The plaintiff alleged, and the defendant denied, that this was accepted by the defendants in settlement of the judgment. The defendants subsequently obtained judgment on the note, and later a warrant of distress was issued, under which a bailiff entered on the licensed premises of the plaintiff. The plaintiff sued the defendants for damages.- but. being advised that the judgment was a bar to the action, he discontinued, and obtained an ex-parte order, setting aside the judgment, and all subsequent proceedings, and then brought this action. At the close of plaintiff's case, counsel for defendant asked for a non-suit on several grounds. His Honor intimated that, in his opinion, there was no evidence to go to the jury on the question of malice, but that it was advisable that the jury should assess the damages provisionally. Counsel for defendants did not call evidence, and the jury assessed the damages at £250. The case was then adjourned for further consideration, defendants asking for a new trial. The cause of the action alleged by the plaintiff was that the defendants wrongfully, maliciously, and without reasonable and probable cause, caused a distress warrant to be issued and executed against the goods of the plaintiff. His Honor, in a particularly lengthy review of the case, said that he was of the opinion, after the full consideration ■ of the facts and arguments of counsel, I that there was no case to go to the j jury on the ground either of want of rea-j sonable and probable cause, or of malice. ■ His Honor did not think the plaintiff r ' did, in fact, suffer any damage. There i was no seizure. He himself, quite pro-1 perly informed his banker, and his leading creditor of the fact. His claim for £ 1000 damagee, and the lines on which his case was conducted, showed that he, as was usually the case, wanted to make money out of the transaction, outside any real damage. The question of damages, however, was always one for a jury. The effect of a distress, however indulgently conducted, was not capable of exact estimation. The only ground on which his Honor might have considered the application was that, notwithstanding his intimation, that only suck damages as might be reasonably assumed to have been caused by the entry were recoverable; counsel for plaintiff urged upon the jury the conduct of the defendants as grounds for practically punitory damages. In summing up his Honor warned the jury not to act on these suggestions, but it was impossible to say how far they may have influenced their verdict. His Honor therefore decided to grant a non-suit.