SUPREME COURT.—CIVIL SITTINGS.

Otago Daily Times, Issue 6383, 28 July 1882, Page 4

SUPREME COURT.—CIVIL SITTINGS.

Thursday, 27th Jvly. (Before his' Honor Mr Justico Williams and a Special Jury.) JfLEOD V. KKKVES.

Claim £2000, damages for alleged malicious prosecution, aud £20 bpecial damage. Tha case arose »ut of proceedings in connection with tho Industrial .Exhibition, upon which the presont plaintiff had been prosecuted on charges of theft and assault, which charges wore dismissed by tho Magistrate. The presont caso was hoard at the October sittings of the Court last year, when Mr Justice Johnston ruled that thero was no case to go to the Jury. This ruling was subsequently sot aside, and the case again came on for trial. Tho following jury . was empanelled :— Messrs Francis 0. I'ulton (foreman), John R. Morris, sen., Androw Lees, A. Cameron, Goo. P. Austing, Thomas Baiid, James Smellie, John Shaw, John Alves, Charles White, .Robert Wilspn, and John Binnio. Mr Donniston, with him Mr Sinclair, for the plaintiff; and Mr E. Stout for the defence. Mr Denniston, in opening tha case, said that at the close of the Industrial Exhibition the men who were engaged removing things from the building, among them the plaintiff's employes, took several bottles of wines and syrups, and drank them quite openly. There was no reason for saying that this was anything but part of the injudicious revelry which ends up things of the sort. Later in the day Mr M'Leod entered the building, and took from Mr Moffat's stand a bottle to see whose manufacture it was, Mr Moffat being one of Mr M'Leod's friends. Mr Brownlie, whose dignity appeared to havo baon hurt during the day, rushed up and said, "We have had enough of this " and attempted to take the bottle away. A scuffle then ensued. Tho proceedings taken by the Committee subsequently went, he submitted, ridiculously beyond what could possibly have been considered reasonable under the circumstances. The Committee demanded an apology, and full restitution for losa or damage; not a word was said of larceny or assault. Mr M'Leod replied asking what apology was wanted, and what amount of damage had been done. Then a demand was made for an apology, and "10 guineas towards making good the wines he and his men had stolen from the hall," and stating that if he failed to comply with tho demand proceedings would be taken against him. This, the learned counsel said, was an attempt to levy blackmail, if ever blackmail had been levied. To this demand Mr M'Leod replied that he was not to be intimidated, and prosecutions for theft and assault Vero instituted, which the Magistrate dismissed" without calling upon the defendant for an answer, ,as, counsel submitted, anyone who was not insane must have done. The present plaintiff had been prosecuted as a felon, he contended, not because the Committee believed he had stolen anything, but because their dignity had been offended, and he had not eaten humble pie with sufficient avidity. A man in the plaintiff's position having been improperly charged with such an offence had only one course open: he was compelled to bring these proceedings to ensure his complete vindication. Under the circumstances he considered the plaintiff entitled to substantial damages. If, from the circumstances, the Jury concluded that the Committee had not acted with a desire to protect the public rights, but from pique, and with a desire to intimidate Mr M'Leod, then the plaintiff would be entitled to a verdict. The evidence of James Simpson, William Brownlie, and the plaintiff was then taken. Mr Stout submitted that there was no case to go to the Jury, on the following grounds :— (1) That there was no evidence whatever that Mr Reeves ever authorised the prosecution; and (2) that there was no proof 'whatever of want of reasonable or probable cause. Mr Denniston replied. His Honor declined to nonsuit the plaintiff. On the first point his Honor considered there was sufficient evidence to connect Mr Beeves with the action taken by the Committee, and that if the action of the Committee as a body had entailed wrong upon any person, Mr Beeves would prima facie be liable for that wrong. Upon the second point he did not wish to say how much evidence there was, or to prejudice the Jury, but he thought there was some evidence to go to the Jury—as the question of want of reasonable and orobable cause, Mr Stout said the evidence necessary to call was very slight after the evidence given on behalf of the plaintiff. The Jury, ho thought, might ask themselves why the case had been brought into Court. The counsel on the other side had said it was for the vindication of Mr M'Leod's character. What was there that the plaintiff wanted to vindicate 1 He took the bottle of wine: there was no doubt about that. The charge of felony was dismissed, but he could not understand how a man guilty of a wrongful act could bring such an action as the present one. If Mr M'Leod said he was sober, that made his ease all the worse. Had he been labouring under the influence of liquor one might have .excused his conduct, but what excuse could there be for a sober man with his workmen taking wines and cordials off the stands, drinking them in a dark recess, and then taking another, and, with the assistance of one of his men, attempt to resist those who endeavoured to stop him ? The only thing used against the defendant was therealkindness of the Committee, who, knowing Mr M'Leod's position, had asked him to pay for the damage done and apologise for his conduct. That fact, however, did not Bhow that the Committee did not believe that the offence charged had been committed, but only that the Committee wished to be lenient and to see M'Leod get out of a difficulty. There was, the learned counsel believed, an ample defence to the action ; but he would call evidence to make the defence absolutely clear. The Jury had nothing to do with the guilt or innocence of Mr M'Leod, but simply to say, first, whether there had been reasonable and probable cause for laying the information, and, 'secondly, was it done "maliciously." The .onus of proving these things lay on the plaintiff. But the Committee did not rest on their own opinions, but obtained the opinion of Mr Harvey, who examined witnesses, and told them that on the evidence produced before him he considered a theft had been committed. Tho law on the subject was abundantly plain. It was a good defence to actions of this kind that the defendant, before preferring the charge, laid tho matter before professional counsel, and had acted bona fide upon the advice given, however erroneous. That was the English law, the American law, and tha common sense of the matter.. He would call evidence which would be so conclusive that they need not be troubled for two minutes in making up their minds on the verdict.

Tor the defence, Mr Harvey (solicitor) and Messrs C. S/ Reeves (the defendant), Mark Sinclair, John Marshall, and John Mitchell were examined.

The defendant, in the course of his examination, said he believed the plaintiff had committed the offence, but he believed it with very great reluctance. There was no reason to doubt that the statements made were true. He was Chairman of the Committee, and did not move any resolutions. The Committee was, he believed, unanimous.

Cross-examined: Very lately I met the plaintiff after the charge was made, and chatted with him. I really did not know which Mr M'Leod it was who was charged. Mr Donniston : Then you took proceedings without knowing which Mr M'Leod it was J. Mr Reeve 3: Yes. Efad it been you, it would have macle up difference. Mr Denniston : Are you aware of the legal consequences of theft ? • Mr Reeves: Yes; theoretically I am. I did not think he ought to be sent on the roads or imprisoned with hard labour. A man who is charged with stealing something of trifling value may be convicted and discharged. It was ray opinion, on the advice of ft{r Harvey, that it was a clear case of larceny. I did not say I thought it was not a case for punishment. If a man was convicted and discharged, that would involve punishment. I think it was a serious theft for a man in Mr M'Leod's position. What would be a serious theft for one in your position would not be a serious theft for a man wanting a meal.

Mr Denniston : In that case it was a matter that should have been seriously punislftd. Witness continued : You surely do not want mo to review* the Magistrate's decision. Acting on Mr Harvey's advice, I considered the Committee quite justified.

.Re-examined: ]j considered Mr Harvey's opinion correct, that ;a theft had been committed. I considered that possibly in a case of the sort a very heavy punishment would not be inflicted.

Counsel on both sides addressed the Jury. His Honor, in summing up, said that tho qneation for tho Jury was whether the information was laid under instructions of the Committee, maliciously and without reasonable and probable cause. Both of these points wore essential in order to enable the plaintiff to sustain the action. However, if it should appear that the information had been laid without reasonable and probable cause, that was evidence from which they could conclude, if they thought proper, that it had been laid maliciously. The word malicious here did not imply legal but actual malice. If the facts had been fairly laid before Mr Harvey (solicitor), and he advised that larceny had been committed, there would be no want' of reasonable and probable caiise, provided tho defendant and the Committee really believed a theft had been committed.

The Jury, after retiring for over an hour and a-half, answered the issues in favour of tho plaintiff, granting 40s general damages, but giving no finding as to special damages. Mr Stout: I would ask your Honor to fix a day to movo for leavo to enter a nonsuit. His Honor : Very well: the first sitting in Banco.