Supreme Court.

Southland Times, Issue 18013, 8 December 1902, Page 2

Supreme Court.

SATURDAY, 6th DECEMBER.

Before His Honour Judge Williams.

The court resumed at 10 a.m. CLAIM FOR DAMAGES.

John W. S. Nichol v. James Cumming, claim £lOOO damages for malicious prosecution.

Mr Sim addressed the jury on behalf of the defendant, and submitted three issues for their consideration: (1) Bid tho prosecutor take reasonable care to inform himself of the facts of the case ; <2) did he honestly believe in the truth of the case he laid before the court ; (3) was he actuated by malice, or by some motive other than an honest desire to bring to justice a man he believed- to have bn,ken the criminal law. The facts of the sale, us disclosed by the evidence, showed that Nichol represented to the

defendant that he was buying the chuff on behalf of Shiel and Co. The sale note now produced showed pretty clearly that tho chuff was sold to Nichol himsel,.', but the defendant was not furnishel with a copy of it, and hud to rely on his own recollection of the sale, and a Inter conversation with Bagrie. There wus no doubt that Nichol represented to

these farmers that he was buying on behalf of Shiel and Co., but cunningly got the contract note signed making it a sale to himself. The jury would also have to consider the circumstances at-

tending the payment oi the money from Shiel and Co. to Nichol. Cumming had endeavoured to get payment, but various excuses were made. Both defendant and Wise were informed that the weights

had not yet arrived, and on 29th August it was discovered from papers in Nichol's office that he had been paid for the whole of the chaff. On the 14th August Nichol received £75, ami on the 22nd tho balance of £29 had been remitted to him. It was further ascertained that tills latter cheque had been cashed by the plaintiff in a .surreptitious sort of

way in Gore the day of his going away. The defendant was fully justified, under the circumstances, in concluding that Nichol had defrauded him. '1 he circumstances of the plaintiff's departure from

lore were suspicious, and he should have

been able to produce something more than his own bare word that he had gone to see some mysterious client on auctioneering business. It was a reasonable assumption that when the plaintiff left he had no intention of returning, that he hud come to the end of his tether in (lore, and only stayed until he got the proceeds of this chuff in iris pocket. On the second point, there was no reason to suggest, ns far as Cumming wns concerned. that he did not honestly believe that Nichol bnd committed a breach of the crimimil law. although he might not appreciate tho strict legal questions invol-

ved in the informations laid. On tile third point counsel submitted Hint there wns no evidence of malice, and the fact that the informations were withdrawn us

soon as possible after the defendant had a doubt about them was evidence of his lionti fides. He hail a perfect right to take the proceedings in the Bankruptcy Court, and it was before them in evidence that the petition wns dismissed on a mere technicality. Counsel submitted that Nichol, on his own showing. hud been guilty of false pretences in his timisactions with the farmers, mid was not entitled to any damages from the de-

femiant. Mr Macdonald in reply said that the plaintiff had undertaken toprove XI) that the charges of larceny had been made against Nichol ; (2) that the charges were not true ; (3) that Nichol was innocent : (4) that proceedings terminated in Nichol’s favour'; (5) that Cumming had no reasonable cause for instituting these proceedings ; (6) that he was not actuated by any proper motive in laying the informations; ,(7) and that they were laid maliciously. If the jury were satisfied on all these points it was for them to say what damages Nichol should receive. There was no doubt that (he charges were laid, and the innocence of the plaintiff had been actually admitted, as the defendant had admitted that he had made a big blunder, and got the

charges withdrawn. Counsel for the defendant tried to make out that though a

mistake had been made the defendant hud reasonable and probable cause for doing what he did, on the ground that Cumming thought he sold to Shiel and Co., not to Spence, Nichol and Co. The contract note was as plain as language could put it that the defendant sold to Nichol himself. The defendant had re-

ceived a letter from Shiel and Co., staling that Nichol was not authorised to bay chall on their account, and he lia-1 this before him when he laid the informations. He knew perfectly well Unit th? sale was with Nichol, and his actions were, inconsistent with any other theory. There was another phase of the question in connection with the introdu ,-tion of the bankruptcy proceedings, and if the jury had any doubt about tho malice of the former actions they would have none al out this. Th. defendnirt had said that he did not want money; all he could say, as excuse for his wrongful anil reckless actions, was that he thought the phiintill was guilty of a

cr’ininal ollence, and he wanted to punish him. .Ho found he would be sued for his high-handed and unjustifiable proceeding, und so instituted the’ bankruptcy petition, and kept appeal after appeal going as long as he could to choke Nichol oil. Had there been any case against Nichol nt all it should have been false pretences, not theft. But the defendant w<*„ .n a dilemma, and tried to get out of it by reducing Nichol to bankruptcy. 'The plaintitl had been ruined by the action of the defendant, and counsel submitted that the jury should assess a fair und reasonable sum us’

dur inges. His Honour, in summing up, submitted the following issues to the jury :—(1) Din the defendant take reasonable care in informing himself of the facts of the case before laying the informations ; (2, did he honestly believe that the plaintiff had committed a criminal < iT.-ire : (3) wns the defendant, when ho laid ti e iu.'ormntioii. actuated by malice or ly some motive other than nn honest desire to bring to justice a man he l elieted to have offended against t'.iu crl i.1r.;,! law ; (I) what damages is the plnb tlfi

ei.titled to recover ’? His Honour reviewed the. evidence at considerable length pointing out that while the defendant might have gone away in good faith, his conduct was such that u reasonable man might be induced, to believe that he had no intention of returning.

The jury returned a verdiet for the. defendant. Mr Sim asked for judgment on a counter claim for amount admitted by the plaintiff, £42 18s Id, and His Honour entered judgment accordingly. ANOTHER CLAIM, Margaret Lucas v. Campbelltown Corporation, claim £520 damages for injuries received through accident caused by defendants’ negligence. Mr J. MactiJlster appeared for plaintilT, and Mr Solomon, with Mr Stout, for the defendants.

The following sat as common jury J. Norrie (foreman), A. Sims, I’. Haynos, A. O’Connor, W, H. James, A. Jackson, C. F. Greig, A. Dcwo, J. Davis, C. lilomfield, W. Brownlie, and A. Campbell. Mr Macalister, for the plaintilT, rend the statement of claim. It was stated that the defendants wrongfully and negligently constructed and maintained an open ditch or drain in front of the drill hall, Ululf ; that the danger of the said ditch or drain was increased by making an obstruction or encroachment, by the erection of certain steps into the. buildfnv. whereby the path was diminished in front of the hall ; which was also a source of danger. It was alleged that the plaintiff, by reason of these defects, fell into the drain, and sustained injuries for which damages were now claimed. A statement of defence had been filed by the defendants, denying that they constructed the drain, or that they had anything to do with the drain ; that the plaintilT sustained any injuries u.t nil ; that if an injury was caused it was through the negligence of the plaintilT ; that they were not guilty of negligence ; that oven if they were guilty of such negligence there was contributory negligence on the part of plaintill ; that their actions In respect to this drain wero done under the authority of the Municipal CQrpprfttioßß Act.

tiff and her husband wore resident at the Bluff, and it would be shown that they, had not an intimate knowledge of the locality of the accident. On the evening of Juno 25th they were present at the intercessory services held in the Drill Hall in connection with the illness of his Majesty. The night was dark, and coming out of the hall the plaintiff fell into the ditch, and sustained severe injuries. The ditch was five feot or six feet wide at the top, and from three to three and a half feet deep, and was part of the drainage system of the borough. As a result of these injuries, and the accompanying sAock, the plaintiff (who was pregnant), consulted Dr Torrance of the Bluff, and later on Drs Fullarton and Hunter, of I p.veicargili, and they prescribed for her. He would submit evidence for the consideration of the -jury, and thought they would come to the conclusion that the plaintiff was entitled to substantial damages.

Percy McDonald, surveyor, Gore, gave evidence that he made a survey of the road where the accident took place, and found that the steps of the hall made an encroachment of twenty inches on the footpath. The door of the hall was about twenty chains from Leith street. A. McClure, town clerk, Campbelltown, gave evidence that the borough was not lighted. There had been applications before the Council for permission to drain floodwater into the ditch. The hall.was licensed on July 12th, after the accident. The previous license expired on March 21st, and proceedings were taken against the person in charge for conducting a hall without a license. To’Mr .Solomon: The drain was necessary to carry away floodwater in order that the road might be used. There was a similar drain on the other side of the street. An open drain was the most effective manner of dealing with the drainage, as there was a large quantity of silt brought down from the hill, which would choke up a pipe drain. There were miles of similar drains in the borough. There was a 10ft clear •footpath in front of the steps, and 12|ft from the hall .front. The planks were put in by private individuals for their own convenience.

To Mr Macalister : There were any amount of covered drains in the borough Had heard rumours of other people falling into the ditch ; did not remember any complaint being made to the Council.

William Preston, formerly inspector of nuisances for the Campbelltowb Corporation. gave evidence that the lighting of streets by kerosene lamps was discontinued about eleven years ago. Tie gave general evidence regarding the drains. This drain had existed fully twenty-one years ago, before the street was cleared of scrub.

Elizabeth Bowers, nurse, Bluff, gave evidence that she visited the plaintiff the morning after the accident. Plaintiff was much bruised, her eyes were black, and her nerves unstrung. Witness attended her at intervals for about three weeks. About a month after the accident Mrs Lucas had a miscarriage. To Mr Solomon : Was not aware of any other reason for the latter misfortune than the accident. Evidence was also given by J. Bigwood. E. Barber, and A. Haines, and the case adjourned till 10 a.m. on Mon1N DIVORCE. A decree nisi, to be made absolute in four months, was granted in Culling v. Culling, Gore, (wife’s petition) on the grounds of cruelty and adultery. The question of alimony was held over till the decree is made absolute. Mr Neave appeared for the petitioner.