Page 4 Advertisements Column 9

Otago Daily Times, Issue 9299, 15 December 1891, Page 4

DOCIIEHTV V. MAIR. Claim, L4OO damages, for malicious prosecution, and LIOO, an amount alleged to have been overpaid. Dr Fitchett appeared for the plaintiff, and Sir R. Stout for the defendant. In opening the case for the plaintiff, Dr Fitchett said that this was an action for damages for malicious prosecution, or the wrongful abuse of the process of the court, for which L.OO was claimed, and also for moneys paid under pressure in excess of what was rightfully due. The facts were, learned counsel said briefly, as follows: Robert Docherty was a farmer, and James Jlair a storekeeper living at Tapanui. From 1887 to 1891 Jlr Jlair practically acted as Mr Docherty's banker. Jlair made advances to Docherty in cash, supplied him with goods, sold his produce, and received the proceeds of the sales. No account was stated between them during the whole fivo years, and when the account was rendered it was in such a form that Docherty could not possibly check it. It was arranged that Docherty should have a fair opportunity of checking the account before he was called upou to pay. Docherty had sold his business, and the whole of the proceeds of the sale, a sum largely exceeding Mr Jlair's claim, were in the hands of the Loan and Mercantile Company, who held the proceeds for the purpose of paying the claim as soon as satisfied of its accuracy. Then Docherty came down to get the account checked. Jlair came down a day or two afterwards and the parties saw each other repeatedly, and ultimately went into the question of the accounts in the office of Fitchett and Thornton. In the end it was arranged between them that with the view of securing to Jlair the amount due to him when ascertained, an order should be given on the loan company, directing the company to hold the amount due to Docherty pending the adjustment of accounts between Jlair and himself. Mair signed this, consenting to the arrangement; - and it was also agreed that if the adjustment was not made prior to the expiration of 10 days, the order should be extended. Mair's account was rendered in such guise as not to be easily checked by one not an accountant. This extraordinary method had been adopted that on every penny advanced to Docherty and on all the goods sold to him interest at the rate of 10 per cent, was charged, but no interest was allowed upou sums received for him. The result was a piling up of interest against Docherty ; and although there was no agreement as to interest, 10 per cent, was charged. During the period of 10 days when the money was lying to the joint account, the accounts were gone into, and it was found that the amount due was L5lO instead of L 650. Jlair refused to accept L5lO, though he could not give any reason why it should not be accepted. Jlr Thornton then went with Mair and Docherty to the Loan Company's office to see if they could make an adjustment with the assistance of the manager of the company. AVTien they got to the office they were told that nothing could be done as Docherty had been adjudicated a bankrupt, and intimation had been received that the official assignee had been appointed receiver. The same night Mair got Docherty to go to the office of the solicitor who had filed the petition and get the order, and as the result of what went on there, added to what went on at the solicitor's office next day, Docherty was induced to pay L6lO and take a receipt for Blair's claim. His Honor, learned counsel remarked, would see that the facts stated proved that there could be no reasonable or probable cause for filing proceedings in bankruptcy against Docherty. The plaintiff would tell his Honor that hut for the dread of what might happen in bankruptcy proceedings he would never have paid the money, and that he had, as a matter of fact, paid LIOO more than he ought to have done. For these reasons the plaintiff claimed damages against the defendant for having maliciously instituted proceedings against him and a refund of what he had paid under pressure. The defence (the learned counsel said) was that the bankruptcy proceedings were taken in gootl faith; that Docherty had not suffered any damage; and further, the defence set up " accord and satisfaction." The plaintiff was called and examined, and in cross-examination admitted that he had received quarterly accounts,** and that though he expected to be charged 8 per cent, for advances from Mair, he had heard that Mair had to pay 9 per cent, to the bank. Evidence was also given by Andrew Todd (manager of the N.Z.L. and M.A. Company) and J. R. Thornton (solicitor). The proceedings in bankruptcy were put in and this closed the plaintiff's case. Sir R. Stout, in opening the case for the defence, said that to begin with no duress was shown. There must be malice alleged and proved in an action for setting the civil proceedings in motion. If, as the fact war, that Docherty was away and was making off fir Australia, Mair was justified in talcing proceedings as he had done. It seemed now that Docherty was in this position .- That if he'could succeed in the office good and well, and if he could not he had nothing to pay costs with. AATiere was the malice proved ? There must be express proof of malice. Even according to Jlr Thornton's statement, Mair wanted to know where Docherty was. AVhat was Jlair to assume but that Docherty would string him on till the time named in the order expired, and then take the money and clear out. The learned counsel said he should call the defendant and Jlr Solomon (his solicitor) as to what took place at the time of the settlement, and it would be seen from this that the settlement was as alleged in the amended statement of defence. In taking the proceedings the defendant had acted to protect himself, because he could not find Docherty, and the money in the loan company's hands would on the 10th of the month revert to the plaintiff and might be withdrawn by him. S. Solomon (solicitor) and James Jlair (the defendant) were called and examined. The defendant, in his evidence, denied that he had any feeling against Docherty, hut stated that he could not find him, and had taken the proceedings in bankruptcy to secure the ifloney which was in the hands of the Loan and Mircantile Agency Company, because he was informed by the manager that if Docherty asked for the money on the 10th it would be paid to him. Docherty had agreed to pay him L6lO in settlement of the claim, and that was paid, it being agreed that that should settle the whole matter, that nothing should be published in the papers concerning the proceedings in bankruptcy, and that the defendant should pay the costs. The defendant also deposed that when he could not learn where Docherty was he told Mr Thornton he must protect himself, and went to Mr Solomon. He asked Jlr Solomon if he could arrest the money in the hands of tho company, and Jlr Solomon replied that the law was too slow in motion to protect him in that way. He also told Mr Solomon that he could not find Docherty, though he had tried for eight days to find him, and Jlr Solomon advised him that there was nothing for it but to file a petition iv bankruptcy. It was agreed that he should file an affidavit as to communications received from Jlair inquiring for Docherty. Counsel then addressed the court. His Honor reserved judgment. The court rose at 6.30 p.m.