LAW AND POLIOS.

New Zealand Herald, Volume XXXIII, Issue 10088, 25 March 1896, Page 3

LAW AND POLIOS.

SIfREME COURT.— Sitoinos.

Tuesday. (Before His Honor Mr. Justice Oonolly,) MALICIOUS PROSECUTION,

JbHK Burpktt v. Thomas Edward Fitz (Serald, -Claim .£SOO damages, for malicious prosecution. Messrs. Cotter and Parr for the plaintiff, and Mr. E. Cooper, instructed by Messrs. Jackson a nd Russell, for the defenoe. The hearing of this action, which had occupied the greater portion of the previous day, was resumed before His Honor and a jury of four. George Anderson, examined by Mr. Parr, said in February and March, 1894, he was in defendant's employ as storekeeper. There were iorty or fifty men on the cumfields, and he had to attend to the business of supplying them with goods, and buying their gum, The agreement which they all signed gave Fitzgerald a lien on the gum. McKenzie and Vent had sigufed this agreement, but witness found out that McInerny had not signed it. These agreements were not strictly enforced by Mr. Fitzgerald, but witness purchased all the gum dug on the field, if the diggers accepted his price, but if not, they had liberty to go elsewhere to sell it, and he knew of many cases in which they did so. The witness volunteered to follow the three men, Mclnerny, McKenzie, aud Vent, to recover the money due by them, and Mr. Fitzgerald told him to do so. He came to Auckland, and consulted Mr. Mahony, solicitor, being under the impression that he could have the men arrested under their agreement Mr. Mahony accompanied him to the police station, and they laid the facts before Sergeant Gamble, who declined to take any steps, so witness returned and reported the matter to Mr. Fitzgerald, who then let the matter drop. Witness, thinking that he was morally responsible to Mr. Fitzgerald for the store accounts these men left unpaid, offered to accept a reduction of 5s a week in his salary, and Mr. Fitzgerald accepted his offer. The amount of the three debts was about £20. Witness knew Davis, and had dealings with him when he (witness) was storekeeper for Gardiner, aud it resulted in a bad debt, and witness told Mr. Fitzgerald his experience of Davis. This was during the time he was in Mr. Fitzgerald's service, but he could not tell when. He told Mr. Fitzgerald Davis was a low character.

Patrick Power, who was present at the sale of gum to Burdett by Mclnerny, A. J. Bolar, aud Arthur Rogers also gave evidence.

Mr. Cooper opened the case for the defence, and called Frank P, Davis. He was cross-examined at; some length, and his Honor commented on his peculiar evidence. Thomas Gubb, county chairman for Rodney County, in which Tauhoa, is situated, said that he had known Mr. Bunlett for '20 or 30 years. He should not think Mr. Burdett's reputation was injured by the prosecution brought on by Fitzgerald. He did not think his business could be iujured much for the place was a very small store, and he did not think his character suffered. The witness said that the prosecution was not looked on as a criminal prosecution. His Honor indignantly asked what this witness'evidence would be worth who considered that a charge of stealing and receiving was not a criminal prosecution. The witness explained that what he meant was that it was not so looked on in the district as a means of dealing with gum. Joshua Sherwood Buakton, who resided ( in the vicinity as a neighbour, did not think Mr. Burdett's character was injured by the prosecution. Witness had never spoken to Mr. Fitzgerald. He should pot think the prosecution had doue any injury to Mr. Burdett's business.

Mr. Cooper submitted that there'was uo evidence to go to the jury. He submitted that there was no evidence of entire absence of want of honest belief in the truth of the charges laid, and there was no evidence of malice.

After argument His Honor refused the nonsuit. «

Mr. Cooper then quoted the case Arbrath v. London and North-Western Railway, eleven appeal cases, in which issues were submitted.

His Honor did not think issues were necessary, and the whole case was for the jury. Mr. Cooper argued that it was for the jury to determine the facts, ami for Hi/ Honor to determine the law. His Honor said he had Seen engaged in many of those cases, an/! never heard of issues being submitted to the jury, but he would admit them, p/hI risked Mr. Cooper to state the issues he wished to submit.

Mr. Cooper said the issues he wished to submit were those laid down in Arbrath's case ■ They were : (1) Did the defendant in prosecuting the plaintiff t ike reasonable care to inform himself of the true state the case? (2) Did he honestly believe the case which he laid before the magistrate? And (3) was the defendant actuated by any indirect motive in preferring the charge against the plaintiff? Mr. Cotter, said ho had no objection to those issues, and acknowledged that it was incumbent on the plaintiff to prove them. If the jury desired to answer the issues or questions, they could do so, but if not, they could hring in a general verdict. Mr. Cooper addressed the Court and jury on the issues at some length Mr. Cotter replied, concluding his address at '20 minutes to six o'clock. The Court was then adjourned until ten o'clock next morning, the Judge intimating that he would read the whole of tho evidence to the jury.

POLICE COURT.— Tuesday. [Before Mr (I. W. Northcroft, S.M.I

Drunkenness.—'Two first offenders were cautioned, and one was fined 53, with tho option of 48 hours' imprisoment. Gum Stealing.—Three lads named John Deverill Austin, Samuel Bolt, and William Irwin pleaded guilty to having stolen a sack of kauri gum at Awhitu. Bolt and Irwin were allowed to stand down, for the report of the probation officer, and sentence on Austin, who had beeu previously convicted of theft, r.'as deferred.

Income Assessment Act. -• The cases against Victor Cornaga, J. R. Hanna, Thos. Kiely, William Lynch, S. W. Buck, Edward Charles Stone, Walter Stiinpson, and Thos. McEwan, of failing to furnish returns of their incomes as required by the Land and Income Assessment Act, were concluded. Mr. Russell, who appeared for Walter Stimpson, hotelkeeper, stated that his client had no income at the time, and that the business then belonged to his wife. His Worship said that the license was in defendant's name, and therefore in the eye of the law, he was the person to furnish the report. He thought, after reading the Act, that every person was liable to send in a return. From the statements made by the defendants it appeared to have- been a misapprehension oil their part as to their liability to furnish returns. In each case a fine of £5, with costs i!Bs, was inflicted. Mr. McAlister said that .surely everyone must now know that he|mustsend in a return.