SUPREME COURT.

Otago Daily Times, Issue 9337, 30 January 1892, Page 5 (Supplement)

SUPREME COURT.

IN CHAMBERS.

Friday, January 29. (Before his Honor Mr Justice Williams.)

DOCIIERTY V. MAM.

In this case his Honor delivered judgment in the following terms:—" I am satisiiecl that the defendant had, under the circumstances disclosed hi evidence, no reasonable or probable cause to justify him in tiling a petition in bankruptcy containing the statement that Daeherty, with intent to defeat and delay his creditors, lucl departed from his usual place of business aud residence, and in deposing on oath to the truth of that statement. The oath which the defendant .swore was not merely, as it would have been iu the case of a criminal information, that he had reasonable grounds to suspect that the plaintiff had committed the act, but a .specific statement that the plaintiff had actually committed it. I do not think that the defendant had reasonable grounds for suspicion ; certainly he had none for making a direct assertion of the fact. Want of reasonable and probable cause, however, is not sufficient to maintain this action. It must appear also that the proceedings were taken maliciously—that is, either that the defendant did not honestly believe the truth of the statements or that the proceedings were taken from some indirect motive, and not to recover a sum lawfully due in a legitimate way. It is always open to a jury, if they find that proceedings were taken without reasonable and probable cause, to infer from that circumstance alone, in the absence of evidence to the contrary, that they were taken maliciously, as above denned. In the present case there is, in addition to this want of reasonable and probable cause, evidence from which a jury could properly lind malice. Mair signed the petition in Mi-Solomon's office and then went straight to lunch, and lunched with Docherty himself, immediately, therefore, after swearing that Docherty had left his residence with intent to deluy his creditors. Mair discovered that he must have sworn what, iu fact, was not true. Any man in such a position, who intended to act rightly, would have forthwith gone back to his solicitor and havo said ' 1 made a mi.-iiake ; Docherty is here.' Nor can Mair say that he did not do so because he thought it would be too late ; for, when asked why he did not, at a subsequent interview between himself. Docherty, and Thornton, mention having taken bankruptcy proceedings, he gave as his reason that he diil not think that at that time the petition had been actually tiled. What took place afterwards does not, in my opinion, amount to an accord and satisfaction of Docherty's right of action, although it does operate as a settlement of Mair's account. Docherty was not under duress, and if he chose to settle tho account without consulting his solicitor he must take the consetiuonees. 1 assess the plaintiff's damage at LSO. Judgment for L3O; costs as per scale; disbursements and witnesses' expenses to be fixed by the registrar."