SUPREME COURT.

Press, Volume XI, Issue 1435, 14 June 1867, Page 2

SUPREME COURT.

>-131 PUICS SITTINGS.

Thursday, Jur.o 13. [Before lIU Honour Mr. Justice Gressou, and a Common Jury,] 2JXUIKQ T. MABSHAIIc Mr Wynn Williams appeared for the plaintiiT, and Mr Garrick for the defendant. Mr Wynn Williame stated the case. The plaintiff was a labourer, residing in Pigeon Bay, and the defendant was a settler in the s>ame district. Some time ago the defendant had caused the plaintifl" to be arrested on a oharge of assault, for which he was conveyed to Akaroa, and thero imprisoned during the nigbr, but on the case coming before the Magistrates lie was dismissed. The action was to recover £200 damages for a malicious prosecution; The following were the issues :— Is the defendant guilty of the grievances in the declaration alleged ? What damages, if any, ia the plaintiff entitled to recover from the defendant in respect of euoTi grierancee ? Mr William* called

Frank Guinness, who deposed—l am clerk to the Resident .NLigistrste at Asuroa. I know the defendant M irehall. About the Bth of March he came to the Court at Akaroa. I produce the information laid by him against Fleming. The police have the warrant. By Mr Garrick —I was present when the information was laid. It waa not sworn to by Marshall. I filled up the information. I don't know whether or not the defendant saw the magistrate before I caw him. It ia usual for mc to take down informations. The defendant told mc the circumstances. He said that the plaintiff had told him that if he caught him down by the bridge that he would do for him, or words to that effect. I cannot say whether he used the words arrested or bound over to keep the peace. I then drew up an information, which waa not used, and on Marshall talking to Mr Watson, the one at present before the Court was substituted. Mr Watson heard what Mr Marshall had to say. Marshall is an uneducated man. Hβ expressed a wish that something should be done te prevent Fleming from doing him any injury. The plaintiff waa at the lime a eeryant to Mr Gdlespie. He was fined £2 a few weeks previously for assaulting the defendant's nephew. Rs-examined by Mr Williams —Marshall expressed :v fear of his safety from Fleming, and asked the protection of the Court, and asked that a policeman should accompany him home. I drew up the information from the statement made by Marshall.- He euid that the plaintiff had come to his stockyard, and threatened him with a stick, saying that he would do for him. GL \V. Greenwood —I am a constable of police at Akaroa. I know Fleming, the plaintiff. I arrested him under the warrant produced. I lodged the plaintiff in the lock-up at Akaron at five p.m. He was under my charge all night, and up to about eleven a.m. next day. He waa taken in charge to the Resident Magistrate's Court, and was discharged from custody about noon. William Fleming—l am plaintiff in the present action. I lately lived at Pigeon Bay, in the employment of Mr Giilespie. On the 6th January I went for some bullocks to the defendant's stockyard. Mr Marshall came across the yard, and told mc that my master would have to pay for the bullocks having trespassed. I toll him that I had nothing to do with that. Marshall then said that if he could not, get the money by fair means he would by strong means, and that Mr Gillespie was imposing on him. I told Marshall that he should keep his gates shut. He then said that both mc and the gates might go to h—. I told him to take care who he was sending to the devil. He then said that that the d drogue along with me—a man named Gowry, who was with him—might also go to the devil. I told him he deserved a good hiding, and he asked mc if I thought I cou'd doit. I told him that if I had him down on the bridge I would not mind trying. I did not in any way touch or assault Mr Marshall. I had a stick in my hand to drive the bullocks with. A boy was present at the time ; he was sitting on the top of the fence, and a woman looking out of ft door about a chain away. I was apprehended by a constable from Akaroa, and taken to the lock-up. I was imprisoned all night. In the morning I was brought before the magistrate, when the case was dismissed. I was let go about twelve o'clock. William Gowry—l was living in Pigeon Bay in January working, as a carpenter. I know the plaintiff and defendant in this suit. 1 recollect one Sunday evening going with Fleming to get some bullocks from Marshall's stockyard. Fleming took down the rails, and Marshall came into the stockyard. [The witness then corroborated the evidence given by the previous witness as to the alleged assault.] Frauk Guinness recalled —The depositions produced are those taken by mc on the case being heard. The warrant for the apprehension of Fleming is the one produced. The case was dismissed, with £1 12s 6d costs. This ended the plaintiff's case. Mr Garrick contended that there was no case to go before the jury, on the ground that the warrant waa not issued on information taken on oath, and cited several cases in support of his views. The proceedings had been issued against the wrong person. The action should have been brought against the magistrate who granted the warrant. He considered that the plaintiff must be nonsuited. Mr Williams considered that the defendant had certainly put the law in motion. He made statements which had induced the magistrate to issue the warrant, and done all he possibly could do to obtain the apprehension of the plaintiff. His Honour held with Mr Garrick'a views of the case, but would allow the case to go to jury, giving Mr Garrick permission to move for a nonsuit. Mr Garrick called Gr. Marshall, who stated — I am defendant in this action. On the 6th February last Mr GHUespie's bullock got into my garden. I had the bullocks turned out, but they got back again, and I then got them into the stockyard. I sent word to Mr Gillespie, and Fleming came up for them. lie had a etick in his hand. He took the rails of the stockyard down and flung them away. He commenced beating the bullocks about I cold him to tell his master to get his bullocks out of my garden, as it appeared that the quieter I was the more they played upon mc. Fleming said, " All right cockey, two can play at that game." Fleming asked why I did not put the rails to keep the bullocks away. The rails belonged to Gillespie, and were inconvenient to put up. I offered, if a awing gate was put up, I would take care to open and shut it. Fleming said the bullocks came from a place whore I knew they did not. I said, " Go the devil, don't you think I have eyes to see where they camo from." Fleming tried to rush the bullocks on top of mc. He shook his stick in my face, and said that if he had mc down at the bridge I would never tell him to go to the devil. I said I would tell him or his master either if they told mc such lies, or that other scoundrel that wa3 with them. I told Fleming to go about his business. As he went out of the gate Fleming turned round and shook the stick at mc, eaying " I will meet you down the road by yourself some of these days, and I will make you so that you will never tell mc to go to the devil again." I told him to mind what he was saying, or I would take him before the magistrate at Akaroa. He said that the next time I took him he would tuke care that I had no witnesses to take. He then went away. I went to Akaroa. A few days afterwards I went to Captain Greaves, and asked him what to do. I went to the Clerk of the Bench and laid an information. I told him that I wanted to bind Fleming over to keep the peace. Mr Guinness wrote out the information, and went out to get Mr Watson to sign it. Mr Watson asked if the information waa correct, and he handed mc tho book to swear on. I was sworn, and I signed that information. Mr Wataon then asked about the matter, and said that it was an assault, and that they would take Fleming. I left the matter in the hands of the Magistrate. A fresh information was then made out by Mr Guinness, which I signed. A sergeant of police came in, and a I conversation about serving the summons took j piace. I then left. I did not know at t lie] time that Fleming was to be taken into j custody. The case was heard on the fallowing Friday, and was dismissed. Christina Marshtll deposed—l am thenioce of the la?t wi'ness. I recollect Fleming coming to our place in January; he commenced throwing the mils about the place, and drove the cattle out. My brother told him that they would not be annoyed ar.y longer with his master's cattle, and that they would have to pay the damages. Fleming folded his arms, and told my brother to keep the fence up. [Thie witness gave evidence similar to that of the last, as to what had taken place between the parties at the yard.] Alexander Marshall, nephew of the defendant, sisu gave similar evidence. This concluded the case for the defence. Mr Garrick read the declaration get forth by the plaiutiif, and contended that the facts were not sustained by the evidence brought forward. He was very eorry that each a petty case should ever hare been brought into the Supreme Court: it was a great loss of tiire,

both for the jury and for all parties concerned. However, as it hiul been brought, there was no help for it. Mr Gtrriek explained that the action was brought to recover damages for a malicious prosecution, but in this case he held that no malice had been shown, and that his client had a reasonable ground for acting as he had done, and that the plaintiff did, according to law, commit an assault. Mr Garrick contended that the action should have been brought against th< Resident Magistrate, by whose carelessness the whole squabble had arisen. Mr Williams, for his client, considered that the case was one which it was very proper to bring before a jury. Did they consider the dragging of a man many miles from home, and then locking him up all night, not a case in which a jury could interfere? He di.l not see how they could possibly construe what had been done by his client into an assault, or that there was any reasonable grounds for the defendant having laid the information which he did to the magistrate at Akaroa, and thus caused the arrest of his '. client. He asked for a fair and honest amount as damages for his client. His Honour then explained the case to the jury, and commented at some length on several portions of the evidence. The jury, after a few minutes, returned a verdict for plaintiff, damages Is. His Honour certified for coste. The Court tlien adjourned.