ACTION FOR DAMAGES

New Zealand Times, Volume XL, Issue 9173, 13 October 1915, Page 4

ACTION FOR DAMAGES

CLAIM FOR. A NONSUIT

Before a Full Court consisting of Their Honours the Chief Justice (Sir Robert Stout),.Mr Justice Edwards, and Mr Justice Cooper, argument, was heard yesterday in tho case Maurice Manthel. electrical engineer, Wellington, v. Arthur Bolton, settler, Walter Arthur Hawkins, Registrar of the, Supreme Court, and E. Johnston and : Co., auctioneers/'- . . ■ ,-1 This was an action claiming an injunction to restrain tho defendant from proceeding to exercise - power of sale without obtaining the consent of the Supreme Court under . the ■ Mortgages Extension Act, and for £6Ol damages. The defendant, in his statement of defence, submitted to the injunction, but denied damage.‘The case was partly heard on August 25th and 26th, before His Honour the Chief Justice and a jury of twelve. Mr C. p . Skeri-ett, K. 0., then moved for a nonsuit, but His Honour suggested, and counsel accepted his suggestion, that the whole matter should be determined before a Full Court. Mr M. Myers, with him Mr 0. 0. Mazengarb, appeared for the plaintiff,and Mi* O. P. Skerrett, K.C., with him Mr W; L. Rothenburg, for the defendant.

Three causes of action were alleged, (1) libel, (2) injurious falsehood, and (3) a malicious execution similar to a malicious presentation of a bankruptcy proceeding. The statement of claim set out that the plaintiff was . the owner of a section fronting Courtenay . place . and Cambridge terrace, subject to £ISOO mortgage held by . Arthur Luxford Johnson, and to one for a similar amount, held by the defendant Bolton. : On May 31st last/ the defendant Arthur Bolton, it was alleged, published to the Registrar of the Supreme Court, and others in. a statutory declaration filed in the court the statement that plaintiff made default in the payment of. the principal money due—a statement which was alleged to be false and malicious, and made without lawful justification and excuse. It was further stated that, acting on the' statutory declaration,; the Registrar consented to the sale of the property by auction, and the defendant Bolton advertised the fact that tho sale was to take place and the reason for the same. The, plaintiff complained that his credit and reputation had been injured thereby, and claimed £260 general damages and £261 special damages. For the defendant; Bolton, Mr Skerrett contended (1) that there was / no malice. The defendant honestly believed that he was entitled to exercise his power of sale. (2) The statements complained of Were true in fact, and were- not defamatory; ■ and (3) they were privileged. He further ■ maintained that ’ the onus to prove malice was upon the- plaintiff; and that the provisions of the Mortgages Extension Act did not apply to .the special circumstances of the case; and on behalf of. his client claimed a nonsuit. Their Honours reserved judgment.