SUPREME COURT.

Otago Daily Times, Issue 7926, 18 July 1887, Page 4

SUPREME COURT.

CIVIL SITTINGS. Saturday, July I(j. (]sefore his Honor Mr Justice Williams and a Jury of four.)

JOHN HOY V. JAMES PATRICK WAr.SII. Claim £200, damages for malicious prosed tion.

«M-. r, I?, ennisfcou appeared for the plaintiff, and Mr I. K. Chapman for the defendant. The hearing of this ease was resumed at 10 a.m., and the following witnesses were called for the defence :-Deteetive Henderson, Henry Harding, and Sergeant Macdonell. Counsel on both sides then addressed the

His Honor, in summing up the case for the jury sam: Ihe plaintiff claims damages from th« defendant on tho ground that he has been prosecuted by him without reasonable and probable cause and maliciously. It is essential for the plaintiff to prove that there was an absence oi reasonable and probable cause, and that the defendant acted maliciously-that is to say, that h« did not act from an honest desire to forward the interests of justice, but from some indirect W.O.W rl"estioii as to whether the proportant in au action of the kind for you in connot consxler that question. No need you It is not the case that when a man has been | persecuted and turns out not to have been guilty, that therefore ho can recover against the person who persecuted him i» an a ° tion for damages. It would be manifestly contrary to public policy that such should be the case , lor if everybody who prosecuted did so |at the peril ot being cast in damages in the event or the person prosecuted being acquitted, people would not institute prosecutions. No doubt, if a m an h^ been | cnarged with a crime when innocent, it is a very great hardship; but it would lead to mischiefs which would tar more thau counterbalance that hardship 11 whenever an innocent person was charged and acquitted, he should be able to recover damages from the prosecutor. As I have said, m order to sustain an action of thiskind, two things must be shown: that the prosecutor acted without reasonable and probable cause, and that lie acted maliciously-that is to say that he was actuated by some sinister motive If the prosecutor did act without reasonable and probable cause, then it would be open for the jury to iiud that ho must have acted trom some sinister motive. It does not, however, follow that because a man does act without reasonable and probable cause that he acts from a sinister motive, for he might still have a hona fide belief that he is acting in the interests of justice Then the defendant even in that case would be entitled to a verdict I shall ask you three questions. The two first wi 1 determine whether or not there was reasonable and probable cause, and the third will determine the question of malice:—(l) Did Walsh take, reasonable care to inform himself of the true facts of the case ? Then (2) Did Walsh honestly believe that the saddle had been stolen y F:° y '« ,If he did- then l direct you as a matter ot. law that he had reasonable and probable cause to institute the prosecution; and it lies on the plaintiff to show that he did not take S^i^w..??' he had»°t honest belief. Then the third question, which goes to the question ot malice, is, Was Walsh actuated by. any indirect motive in preferring the charge? And a man may art rashly yet m good faith, believing that he is promoting the interests of justice; and f he does so he cannot be said to be acting maliciously. His Honor then referred to thi leading points of the evidence, and left the three usues to the jury. The jury retired at I p . m ., and a f ter deliberating for some time returned to court and inquired if they could give indirect answers to the questions put to them. His Honor thought that direct answers should be given, and the jury after retiring again for about half-au-hour returned and answered the issues as follows :- Did Walsh take reasonable care to inform himself of the true facts of the case ?—He did not.

Did Walsh honestly believe that the saddle had been stolen by Roy?-Only three of us have agreed as to that issue. We find that on the morn ingot the case he did not honestly be-

3. Was Walsh actuated by any indirect motive in preferring the charge?— That questiou we leave open; we cannot say. n r SJ i?'i Or, Sa, id that the having found that Walsh had not taken reasonable care to satisfy himself of the true facts of the case, they need not trouble about the second question, which was merely subsidiary to the first t lhe jury agam retired, and returned at 3 20 o clock and gave a three-fourths verdict for the plamtift, damages £10. Judgment was entered for the plaintiff accordingly, costs being granted on the lowest scale.

The court rose at 3.30 p.m.