SUPREME COURT.—CIVIL SITTINGS.

Otago Daily Times, Issue 4743, 1 May 1877, Page 3

SUPREME COURT.—CIVIL SITTINGS.

Monday. Apeh. 30th, 1877.

(Before His Honour :Mr Justice Williams and

a Special Jury.)

J. XJ. Russell v. H. W. Shtohies.

Action to recover L2QOO damages for alleged malicious prosecution.' .-',, j Mr Macasseyj with, him Mr Dick, appeared for plaintiff jMr Stout, with him Mr Denniston, for the defendant, •• ; .

: lie plaintiffs declaration sets forth: That the defendant, on or about the 4th day of October, 1876, falsely and malicionsljyand without reasonable or probable cause, appeared before John .Bathgate, EEq.^a Justice of the Peace for the Colony of New Zealand, and charged the plaintiff with having, on the 10th day of June; 1857, in a certain matter then pending in the Supreme Court—falsely, wickedly, and corruptly committed wilful and corrupt perjury. And by reason of the charge the plaintiff has been injured in his reputation and suffered pain of body and mind, and was prevented from attending to his business, and incurred expense in defending himself from the said charge ; wherefor the plaintiff claims to recover from the defendant L2OOO damages, v . The defendant in his plea denied all the material allegations in the plaintiff's declaration^ contained. : -

;Mr Macassey opened the case for . the plaintiff, going into the circumstances of the previous ; action at considerable length. He then called the following evidence: — :-. •. \ John Bathgate: I am District Jwdga and Resident Magistrate in Dunedin. I produce an information sworn by Mr Smythies on the 4th 0ct0ber,..1876, charging Captain Russell with perjury. ■. The charge was heard before me on the 13th December. The information! was dismissed. After the information was dismissed no application was made on behalf of Mr Smythies to take his recognizances under the recent Act. ; '•. .' '. '■.- V...'

! W. P. Street: lam Clerk ,to the District''and Resident Magistrate's Courts. The depositions produced were taken by me. ■ • : Cross-examined: I had occasion to make a search for the .depositions in the case of Russell v. Barton.' They were not found. I stated in evidence that I had reason to believe they had been sent to the Supreme Court. : [The depositions taken at the hearing of the charge of perjury against Russell in the R. M.. Court in 1876 were then read.]. . , . ; A.- Hiii Jack,: Manager of the National Insurance: Coiupsny: Captain Russell is marine surveyor to the Associated Insurance Companies, He has been in that position for'dyer two years. Ho .is Lloyd's surveyor. I:wa9 cognisant of this information having been; laid against Captain. RusselL ! An argument. took place as to whether the witnesg should be allowed to answer the following question:—Has Captain Russell sustained any injury, to hia reputation, in .your estimation, through the defsndant's information against him? . .. . ' His Honour: It seems to me that - the' evidence is admiasable on the ground that it is not evidence, of special, but evidence of general, loss of reputation. ; '.: ' ;

i Mr Stout's objection to the above question was noted.by His Honour.

: Witness believed that Captain Russell sustained some injury through the information having been laid againsi, him. ... . . , : ........ .' George Win. Eliott, agent for the New Zealand , Insurance Company: The information against Captain Russell was, in my opinion, calculated to> damage his reputation, but the' Boorce from which it came had not that impression upon me, that it would otherwise have. Joseph S. Webb, insurance, estate, and eonimisaion agent and accountant: Some years ago I was accountant .and agent for the trustees in the estate of Miller Brothers. It was in 1865, I think, and subsequently for about. three years, rl - had some: documents belonging to Messrs Howorth, Barton, $vnd Howorth, and believe that I gave a receipt for them. On the 20th June, 1866, Captain Russell and Mr Smyiihies came to my office to copy some documents which I received fron; Mr Barton. They had an office placed at their disposal, and I am not in a position to say whether they made copies of, or simply extracts from, cthe deeds, : Cross-examined: Between.the 18th and 20th1 June, I got the deed 3 from the arbitrator, Mr Morris. I believe -they were returned to the office of Messrs Howorth, Barton, and Howorth. I did not take a receipt for them, as I had not then sufficient experience. .1 do not know how long the documents were in my possession. I believe :they.: were 'returned to.Tthe- office--6f-Meesrs - : Howorth,, Barton.. and; Howorth, shortly after the 20th June. ! Ec-examined: Immediately after /an interview with Mr Davie, on the 21st June, Ireturned some documents that I had received on the 18th-to Messrs Howorth, Barton, and Howorth. The receipt produced, dated 18th June, 1866, is in my,handwriting. It relates to copies made for;Mr; Sniythies of' a deed of partnership arid assignment made between Messrs Russell and Miller in 1864. I had documents;:from; Mr Barton's office after the 20th June, 1866, but I have no record of them.

; Archibald Ure, Registrar of Births, Deaths, and Marriages in Dunedin: In 1866 or 1567) 1., think, I was carrying on business as a grocer in Dunedin. ; , I have known Captain Russell for twenty, thirty, or forty years—perhaps more. He is a cousin of mine. The letter produced was received by me in February, 1867, from Mr Smythies. I thought that the dispute between Mr Smythies and Captain Russell would have been eettled long ago.. I:tookagreat interest in the matter and tried to get it settled. '> Cross-examined : I have known a great deal of unpleasantness between Mr Smythies and Captain- Russell. "I am under the impression 7 toat it arose from money matters. It commenced before I received the letter produced, and dated Bth February, 1867. This contained, an offer by Mr. Smy thies to settle his costs against Captain Eussell for the sum of L 250. "• : Robert Chapman: I was formerly Registrar of the Supreme Court, Dnnedin. I rememberthe case of Russell v. Barton, I received theaters ; produced, dated; 25th February, 1867, and 22nd Jane, 1867,fr0m Captain Russell, who was then in Dunedin GaoL: My deputy generally taxed the bills of costs. I did not take away with me the bill of costs now missing from the Supreme Court. ■ : Jame3lJre Russell, master mariner: lam surveyor to the Associated Insurance Companies, and have been so for nearly four year 3. I am Secretary to the Fire Branch, and also surveyor to Lloyd's Shipping Resiater for the island. In the early part of 1866,1 suppose I became a client of Mr Smythies. He ceased to be my professional advissr at about the end of 1866. I did not employ him as my solicitor after Lhat. At the instance of Mr Smythies, I was kept in Dunedin Gaol for about six months after the Christmas eve of 1866. My estate waa afterwards put through the Bankruptcy Court. The affidavit produced was made in June, 1868, but an affidavit similar in substance was made before that time. "When I was in gaol in 1867, I ..wrote .the letters produced to the then Registrar of the Court. The affidavit of June, 1868, sworn to by me, was prepared by Mr Barton. This affidavit was almost identical with that.-.to.which I swore in gaol in 1867.. I instituted criminal proceedings against Mr Barton, and there were counter proceedings by. Mm against myself. When I returned fromMelbourne, in April, 1868, I found that between Barton and Smythies, instead of haying to receive LIOO from the Supreme Court, I would; have to pay, about L7 to make up the" solicitors' costs, I waa angry with Mr Smythies more so than Mr Barton. I enquired as to what 'remedy I could have. Mr Smythies advised me to take action,against Mr Barton for perjury, arid promised that he would only charge for costs out or pocket. Mr Smythies first sent me to Mr Prendergast, who waa then Crown Prosecutor, and who told me that he could not interfere with the matter at that stage. Mr Smythies accompanied me to Mr Strode's office. Mr' Strode seemed to advise me against going to extreme measures, and suggested- that a r civil action should be taken against Mr Barton or Messrs Howorth and Barton in the small debts Court—the Resident Magistrate's Court We did so, and we lost that case, of course. By the time I had done with Mr Smythies I knew the cost of a rule nisi and every other rule.—(Laughteri) The only point I ever gained was on a demurrer. I then took action against Mr Barton criminally, and Mr Rees appeared for me in that casei Mr Smythies conducted the subsequent criminal proceedings against Mr Barton, and afterwards sought to charge me for them. On the 23rd June, 1876, Mr Smythies took two deeds from the Supreme Court to his office. His son and I urged him to.return them, but he said that if they were missed he would say that they had got accidentally mixed lip with his papers. His statement that he wanted to return the deeds and that I refused to allow him to do so is grossly false.'

By Mr Stout: I authorised the engagement of a,'special'shorthand reporter to take full shorthand notes of the recent actiou- in the Resident Magistrate's Court, Smythies y..Russell. I was very anxious that as much as possible of the1 case: should appear in the newspapers. Tha speech of my counsel was fully reported in the Star, but noj; "the whole of the evidence. '".■•■ ':

iMr Macassey": It is all in print now., ;'. Witness continued : I-have paid Mr Smythies !L4oofor conducting "about 20 actions forme. jl have been..successful iw some of them. The Star's special shorthandvwporfcer would get

aboat L25 for reporting the recent case. Ire flatted some urging by~MrJSmythies before taking action.against Mr Barton, principally ; on account of the costs. luthe first perjury case against Mr Barton, I stated-:-" Most emphatically Mr Smythies is not the instigator of tuese proceedings. If he had never been born. I would have taken action for the recovery of ?/ fe 100 ' "^ might have gone on." :^lr Itees was my counsel in the second,action for perjury, and Mr Smythiess was called as a i* 1™?8!; I was entirely guided by the advice ot Mr Smythieß. I would have taken proceedings against Mr Barton to recover my LIOO, ifany other solicitor than Mr Smythies had advised me. Every step that was taken was at the instigation of Mr Smythies, who said after my return from Melbourne on the 7th Apttf—'.* Yba must charge this man (Barton) ;with perjury." •iTh« Cowt rose at 5.15 p.m., and adjourned tiUlOsop. the following day. ' ' -