SUPREME COURT.- CIVIL SITTINGS.

Southland Times, Volume I, Issue 61, 20 October 1864, Page 3

SUPREME COURT.- CIVIL SITTINGS.

Wednesday, 19th October, 1864. (Before Mr. Justice Chapman, and & Special Jury.) His Honor took his seat on the Bench at ten o'clock. MENDOZA V. BUTTNEB AND ANOTHER. This was an action for malicious prosecution, arising out of the charge of conspiracy, at the instance of Messrs. Buttner and Hallenstein and Mr. H. W. Whitton against Moses Mendoza, Mo ria Salek, and Joseph Silberberg. The jury was then empannelled, and consisted of Messrs. N. Chalmers (foreman), GL S. W. Dalrymple, John Hare, Joseph Hatch, Henry W. Mitchell, Alexander Smith, W. F. Tarlton, Angus Xerr, Joseph E. Clark, John Eoss, A. T. Maning, and Thomas J. White. Mr. Button appeared for the plaintiff; for the defendants, Mr. South, and with him Mr. Harvey. Mr. Button, having opened the case for prosecution, called evidence as follows •• — Mr. Price, late Besident Magistrate, deposed to the defendants, on the 27th June last, laying an information, on a charge of conspiracy, against Salek, Silberberg, and the plaintiff. Mr. South, who accompanied the defendants to my office, explained the case. At the time of the laying the information, I explained to the defendants, through Mr. South, that I thought there was not a sufficient case to connect Mendoza with Salek and Silberberg in the conspiracy. Cross-examined. — Besides the defendants, there were present at the information some six or seven others, creditors of Salek. Among these were Messrs. Boss, Miller, Ritterath, and Geisow. John Hare, clerk to the Bench, deposed: — This is the information laid, and those are the depositions taken at the time of the case being heard. (Documents produced). The depositions are in my handwriting. They are signed by Mr. M'Culloch, J.P. The summons produced was issued from the Court on the information being laid. The first hearing took place on 28th June, in presence of Mr. M'Culloch. The case was continued on the following day, and the result was that the charge against Mendoza was dismissed. °J. S. Johnston, Registrar of the Supreme Court, deposed that the depositions made in the Eesi"dent Magistrate's Court were in his custody since the case was heard. Moses Mendoza, the plaintiff in the action, deposed — I am an auctioneer, and have been in Invercargill for eighteen months. I know defendants. I know Silberberg. I was employed by' him to advertise a sale at the Koyal Hotel under a bill of sale. The sale was either on Mouday or Tuesday the 28th June. The sale was interrupted by Mr. Banks, clerk to Buttner and Hallenstein. He tried to stop the sale ; my principal ordered me to go on. The police shortly afterwards came in and stopped the sale. The next thing I received was a summons to appear at the Resident Magistrate's Court. [Summons produced.] I appeared before Messrs. M'Culloch and Pearson on the following day. One of the justices remarked at the close of the first day's hearing, that there was no ca3e against me, but Mr. South said that they were seek-' ing for evidence to connect me with the conspiracy. The case was dismissed against me on the following day. I have suffered injury and damage in consequence of the action. I have had to pay £10 for my defence, and I have lost my connection down here. By Mr. Harvey — I was in G-eelong before I came to this colony. Buttner did not know me previously. He once employed me in tbe case of Spurling's sale. It might be in May last. Till the information was laid there was . no 1 ill feeling; shown towards me hj him, bo so far as lam aware. I endorsed only one bill for Salek. It is the only bill I ever did endorse. Buttner and Hallenstein employed me at another sale on the North Road. It might be in the month of May last. I received my instructions as much from Mr. Miller as the other. The bill I endorsed was an accommodation bill to Salek. I never endorsed, accepted, or drew a bill for Salek for £300. After some fencing, witness admitted that he put Mb name to a previous bill. The amount was for £215 or £220. I know Mr. H. T. Eoss. and Mr. Henderson, of Henderson, Bonar and Co. I knew Henderson in Melbourne, as salesman to Dalgety and Co. He also knew me. lam intimate with Salek. Have only known Silberberg since he came down from the Lake. After he came down, I was very often at the Royal, but not much in : company with Silberberg. Salek — a long time back — consulted me on his money matters. I swear that I knew- nothing of the bill of sale till after I hadifisliructions to sell. 3alek had never mentioned one word on the sub--1 ect before I was instructed to sell by Silberberg. I dalek did not tellme he was going to abscond. If he did, I would have stopped him, as I had a dishonored acceptance of his that day. Previous to his absconding, he made no arrangements with me regarding the settlement of payment of this j bill. I was not.;tQ- receive more than five per cent, out of the proceeds of the sale.* I was not to retain the amount of my bill out of the proceeds. ■ - Mr. Harvey. — Tour Honor, I hear that notwithstanding the caution, there are two "witnesses listening at the door. ' His Honor— -If this can be substantiated, I shall commit' theni for "contempt 5 of* Court. Who are they? Mr. Harvey— They -were Morris Salek and Joseph Silberberg. . *'. ; .. t ....... His Honofl— -Bring them in. "" ' Evidence was then .taken, but "they were dismiiseel with a caution. They had been outside the Court, but it being raining, there was some pretence of their having sought shelter close to the building. ' My Mendoz^'s. examination. b .c<?n^ue4.---BaJpK

ing.. He did not mv everyday. . iwas.notaware of! the state of his affairs. ,1 was; not aware;)or the bill of sale being granted till after he had loft. ... ■•:. By the Court— lt was about two days, after. ■ Examination continued.— lt was not arranged that I should not know what was going on—wan, not aware that something was being done. After Salek left, I saw Silberberg frequently in reference to" the sale! J Since Salek"was*"brought back,.l'ye-; been to his houee-two or three times. The bill that/was dishonpr'd was given, for goods. I remember when there was a distraint for rent ;at the Eoyal. : I found of^the money. : f In. security for my endbrsation of the bills to'Salekj I held lease of the Royal Hotel, a box of jewellery and some deeds of land -in rVictoria. They were lodged with Buttner "and " Hallenstein. 'In 'the event of Salek's bill to Buttner and Hallenstein, not being paid the securities were to be handed over to me. „ .„. i His Honor. —lf Salek paid his bill, •■"what right would you have had to the securities 9 r . ; ■ — I. merely held one copy of the two documents made .out- making over the lease of the hotel to me in default of. Salek's not meeting the, bill. „, „,,,.,.,...... '.. ..,..,= ■■,-...-^, --. I " : His 'Honori— But 'Buttner and • >Hallenstein would , haye ; kept vthe securities if the bill; were s dishonored. : : v Witness. — -But I was to have them if; I had' had to pay it.: <.. J[ ,'i Ix*; * • Examination continued — I endorsed the.bills out of terms of friendship to Salek. I knew him ten .year? in Yi ctol ?a. ; ;I ;hav;e nofelbeen, on "unusual.terms of intimacy. ; , ; .; I never; asked' him his position when endorsing- his j bills. ' Ijlf. did not,, advise him to ,go and 'raise money : from?But&er and Hallenstein. He told mt; after, he had been to them, that the security was not sufficient, and _ "asked! .me" to endorse it,' and if so, Mr. Ghip'ari' would do so also. Salek did;not tell me that the Union Bank was pressing him at that time., „-1. think the bill . dishonored ., by Salek, to ; me "was £135 in amount. ' I took a writ but "against him. Did not know Silberberg prior to his coming down here. I- am not aware that the £600, the consideration mentioned in the bill of sale, did not pass. • I did not know, of the bill of sale, .rl do not know that the £600 was not paid. I knew Salek had absconded the day following — it wasa current reportc all through i ''town. I took no steps to upset the bill of sale. I believe^it can be done. My place of business has been' open since my failure. I was a general, dealer in Victoria—for five or six years in (Jeelong. I swear again that I never knew of the bill of sale 'Still Silberberg gave me instructions to sell. I have suffered in repute by the fact of my name going forth to the public, that I" was charged with conspiracy. I have been doing almost nothing. I have scarcely been making £2 a week. I always before this got a share of what was going. I had an undeniable repute in Victoria, ■as a storekeeper. We never needed credit. Our firm was Mendoza and Hart, of Greelorig and Melbourne. H. M'Culloch; Esq;, R.M., deposed:— l was one of the Magistrates before whom the case of conspiracy against Mendoza, Salek, and Silberberg was heard. Mr. Pearson was the other Magistrate. The hearing lasted two days. At the end of the first day-s proceedings, 1 could not swear that there was any evidence to connect Mendoza then adduced. ■ The prosecutors undertook to produce further evidence to connect him with the charge. There was none produced. :It was very slight, if any. The result was that he was discharged. On doing so I said there was no evidence against him. By Mr. South.— l can't recollect the exact expression. ,;■ Joseph Exall, reporter of the Baity 2Vew», deposed to reporting the evidence on both occasions on the bearing of the case. I have my notes, taken on both occasions, with me now. At the end of the first day a conversation did take place between Mr. South and the Magistrate. (The notes taken were then read to tbe Court, and were corroborative of Mr. M'Culloch'a evidence.) By Mr. South. — There was some additional evidence adduced on tbe second day's hearing. I cannot recollect how far it implicated Mendoza. Sarah Salek, wife of Morris Salek, deposed as follows :— I know Mr. Buttner and Mr. Whitfon. Eemember last session of Sup.veme Court here. At that time I saw Mr. Buttaer at the Eoyal Hotel. It was in the afternoon. Had a conversation with him. I don't think I'm justified in telling what took place. It was a private conversation. His Honor. — If you refuse, I shall be obliged to commit you to gaol. Examination continued.— He said he was sorry for me and the children. He said all would be settled if Mendoza would withdraw his action. He also said it was not Salek or Silberberg but the " other one " he wanted to get at. Cross-examined. — I asked him into my room. I was a great deal agitated. I did go on my knees and say to him, " For , God's sake take some steps to relieve Mr. Salek." He said he was very sorry for me and the children. ' By the "other one" I fancied he meant Mr. Mendoza, as we had spoken of him before. My husband left for Melbourne on a Saturday, in June. Mr. Mendoza was not constantly visiting at the house. The depositions of the witnesses at the hearing of the case in the Resident Magistrate's Court, which referred to the plaintiff's connection with the conspiracy charge, were then adduced in evidence. : . This closed the case for the plamtiff. Mr. South- now opened the case for the defence, and said he would be able to call in evidence which would fully "prove that through the proceedings formerly taken at the instance of the defendants that the plaintiff had not suffered loss of character, loss of business,' * and : loss of reputation, and that they (the defendants) had not taken those proceedings without reasonable and probable .cause. He thought there never could' be a weaker case for the prosecution than the present, and he said he would be able to show that Mendoza was implicated in the action of Mr. Salek in a manner that cannot but be manifest to everyone. i H-Buttner, examined by Mr. Harvey, deposed |—I am one of tbe : defendants m this action. I have known plaintiff since his arrival .in this colony. Was acquainted with Salek and Silber-. berg. Have had transactions with Mendoza and Salek conjointly six or seven months ago. The one (Salek) "accepted a bill and the other endorsed it. I never endorse bills, but I believe five per cent, is the usual commission charged for endorsing bills. I knew Mendoza and Salek were then on . the most intimate terms:. Salek frequently spoke of Mendoza as being his particular friend. About the, end of May, or commencement of June, I saw Salek ■more than- usual walking about the town, which caused some slight suspicion in my mind. On two occasions I saw Salek going up Dee-street, and in one particular instance saw him 1 go into the premises of Mendoza, which causedme some uneasiness in consequence of what I had formerly heard. I asked Salek" if he had made his property over to Mendoza. He replied that he had not; nor to any one else. This was about a fortnight before Salek left. • Had heard that Mendoza had sold off all his property, and the rumor was that he was, going to leave. He did not leave, and he became an auctioneer, to my great astonishment.-.- Xdon't think Mendoza would put up quietly with a heavy loss T was not "aware that he was a creditor to the extent of £135 ; he took no part in t the meetings of the creditors. Was astonished to find the lelse of the Boyal Hotel advertised for sale by Mendoza. I thought it was odd that he should be the auctioneer, as he was already aware that the lease was in our possession. We sent Mr. Banks to get an explanation. Very soon after I discovered that £30 was due for rent of the hotel. This was after Salek left. The money came from Mendoza to pay .the rent. This caused a still greater suspicion in my mind. I never had any dispute in business with Mendoza. I assisted, him by-putting sales in his way.' , Cross-examined.— -I never endorsed ,a-bill out of a friendly feeling for another. J I never considered it was customary -for such things being done. I have' been> nine ■> years in busineß3, and my transactions have been extensive. I scarcely ever made'use of bills -in , my business. I cton't Jaiawr »-<£«?*«««£ paid by-

'Mrrßutton) macUf a 'good deal of fusVabotft it. IhereXwas ,?n6tKing ieiso: but this, -and the affair of the sale, yrhich in duoed me to connect Mendoza witfrSalefc- J -• - * •-■ ' ■ _ :■' - ' G-. D. Menteith, olark to Mr. South, proved th» of the summons.onjyfr. Mendoza. feoMbrris^SaleE dupbsed-^-I know defendants. Also lmow v Mendpzaj the plaintiff. Wont to Melbourne "on _~ Saturday, . l§th_ . June. Mr. iMenddzMis a particular -friend -of mine. Ilavo never lent monejrto him, nor he to me. Have had transactions of goods. When I left I owed < him money for goods which I had : bought of him on credit./. Owed -him in all, £231; V.-Saw him before I left, and asked him for time. He said ho would give me as long a 9 he could. I don't know if he knew I -was ,, then going to leave the place. Silberberg paid me ' the £600 partly in notes and partly in'gold. ;; l never told Mendoza or any or o else of the biU of sale.^;s?he bill for £135 fell duo a week or a fortnight before I left. Mendoza took proceedings oil this bill."' I ■was served -with a wit for ike bill and open account (in all£2S3) the week I left town. • W. D. Banks, clerk to Messrs. Buttner and ;llaUenstein, deposed--The; sale 'was on June 27. [ saw Mendoza a few days before that. I askedhim how he came to advertise the lease of ; the Royal i Hotel when ho knew it wns in our possession. :He declined to give any explanation. He said he had received his instructions^ and also'that ho would advertise the moon if it. were put into his hands for sale. I was, in conjunction with another, a bauiff at the hotel, oh' the Saturday before the sale. The money to pay ithe rent came from 'Mr. M9ndoza. So far as I rei member, the order to, sell was given by Silberberg. 'Mendoza told me, so. - 1 don't know that at that time the writ of" foreign attachment was served _ on Mendpza., ,'.!.,.,, ::;.■.,;; «.,;r" :■.;■ >r ■::•■•-' Cross-eiamined.T-:You .said , you . paid the rent ** (£3O) under protest. '* You disputed my "right to - bo.tliere,at;all./.I : heard you say that 1 the- 1 distress was illegal, and that, you paid, the money under protest.. H. T. 3J058,-merchant, Don-street, deposed :— Know Mr. M^jndoza,.theiplaintiff, and Salek, and Silberberg. Recollect when, Salek disappeared. About* orbefore that time when the, report got abroad that Salek was "down," I saw, him and SUberberg frequently going inio Mendoza's place of business. My suspicion* was aroused. By Mr. Button. — I have not told Mr. Buttner of this. J. C. Henderson, of the firm of H. Bonar and Co., deppaed— -Know L Mendoza. ;. Knew him in Melbourne for three or four years. Mr. Button objected to any evidence as to character being given, inasmuch as plaintiff did not claim for special, but only for general, damages. ' .. : :I . ■ His Honor concurred. Council on both, sides having addressed the jury, His Honor summed up the evidence, saying I that he had considered carefully the facts brought ' but, and he was of opinion that Mr. Buttner had ' not had' sufficient and reasonable cause for having taken the action he did with regard to the charge of conspiracy. , Ho ; said the award of damages would range between those claimed (£2,000) and £10, the amount that the plaintiff had paid for his defence in the action before the Resident Magistrate's Court. He reminded .the jury that damages should always be of a reasonable anioumV— not only to please those who had heard the cause tried, but to leave tho court with a clear: conscience, sufficient to disarm them from all suspicion of haying favored either tho one side or the other. His Honor then commented briefly on the evidence adduced, and after taking all tho circumstances into their consideration, including tho position of the parties in society; and generally tho wrong done, he advißed them to retire and consider their verdict.The jury retired at half-past four o'clock, and after an absence of three-quarters of an hour, His Honor said that he had been informed that they could not agree as to their verdict — that eleven had agreed, but that there was no possibility of their coming to any further agreement. Ho asked counselif they " would agree to the jury's being discharged. The counsel objected, and His Honor agreed to postpone the decision till seven o'clock. At seven o'clock the jury had arrived at a verdict, and awarded damages in favor of plaintiff to the extent of £175. The Court then adjourned till this day at eleven o'clock.