SUPREME COURT.

Timaru Herald, Volume XXXIX, Issue 2883, 19 December 1883, Page 3

SUPREME COURT.

TIMAKU— Tu.E3DAT, DKC. 18. 1 j (Before His Honor Judge Johnston.) ' His Honor took his seat at 10 a.m., to ' commenoo tho liat of oivil business of tbia < BCBBIOD. ' I THE COMMON JUBY. ' A common jury panel was called and sworn ■ for hearing certain of the cases Bet down. < There wore several absentees, but nearly all ] appeared later, and explained that they had ] been misled by the summons demanding them ' to appear at 11 a.m., or that they had no 1 means of coming to town except by train, ' and none of the trains arrived till nftor ten. < In the case of one of tho exoeptionß Dr Mac- ' intvro appeared, and proved tbe por«on eum- ' moned was too ill to. attend. From three ' others no explanation was forthcoming. There ' wora J. D. MoKeon, wool-broker, Joseph ' Cameron, gardener, and F. J; Wilson, archi- ' tect, against whom the penalty, £2 each, - remainß set down. I OlVrii CASE3. ' N.Z. Loan and Mercantile Agency Com- ' pany v. S. Wheeler — Claim £1270 6s 3d. Mr Joynt, with bim Mr C. Perry, appeared ] for tho plaintiff Company, and Mr Stout for i defendant. j The following common jury of twelve was ' called : — A Beswick, Jas. Kirby, R. Bartlett, 1 J. Mee, E. Taoon, P. J. Foster, J. Russell, ] B. B. Munro, Wm. Howe, H. Oldfield, Thos. . Palmer, Jas. Mcllwriok. Mr J. Meo was e chosen foreman, j Mr C. Perry stated to tho Court and jury ) the grounds of the plaintiff's claim and the pleas of defendant, and Mr Joynt gavo a 1 general explanation of the case. , Tho case . may be summarised thus : In | July, 1882, defendant owned certain crops of f wheat and oats, chiefly the former,, on land | situated on the Waibao downs, and on the 4th ] of that month he obtained from Mr Secretan, ■ the plaintiffs' agent !at' Waimate, ah advance of £475, secured by agricultural lien, which , was also to cover any other advances that ( might be made. Other advances were made t from time to time, principally in payment , of orders given by defendant, for harvesting , and thre»liing, until the dofendunt's debt ( reached nearly four times tho original advance. ( About tho 4th of Juao, 1893, tho plaintiffs 1 i agent took possession of tho grain, just as ] threshing was about concluded, under' the | powers given by the lion, tho quantity takou ( charge of being 10,403 bqihols of wheat qnd ;

2i2« bushels of oats. In dealing with t pram, certain expenses wero incurred cartngo, rni!".qo and m doming some of t |,'.v\»i». »!, : ch, »;ih ini,ro«t upon tlio « I vanas, amounted In a i i.f -il — after declucti | Iho proceeds of pi.iir. fold, nnd valuo of Hi [•,_■) I etill unfold— of £1270 (i» 3d, tlio balance nc MK-.I for. The plaintiffs' witnesses— Mr LeCren, local nmua»er for the CompanMr Seereta;i, agent at Wainißto, nnd U etoreraen— showed that the larger portion tho wheat was very much damaged by w< co much bo (.but some 70 biga ,vcro nov carted from tho field, und weie liurncd . buried there, ucd over 300 bias of whe wero sold at 8d por bag at the Waihao railwr station as not worth pun ing on tho truck Mi.d m tho belief that if not s-M nt om even tho bugs would bo lost,— rottf away with tho wet wheat they conlainei Nearly 300 Backs more wore soid under t,h same, oircum.'tmces at 4s 8d por bag. Th rest was Ufcei by rail tp plaintiff*' ntoro i Studliolmu Junction, and from time to tim 'urger or smaller lots wero disposed of a buyers could be found. A quantity of when 'till remained on hand, which hud been value by nn independent expert at 2s 6.1, but, buyer could not bo found, it, was so much out c condition, ami, m order to closb the account 3s per bushol was allowed for this, or 6.1 übov its value. The small proceda of tho grai Bold added to tho valuo allowed for tha remaining unsold, resulted m tho licno being indebted to the lienea m th amount stated. The accounts wero enverall examined by Mr Stout, and nil voucher for payments made were produced b plaintiffs. The accounts wero found correct except m that the accounts were tnado out a half-yearly interval,., and tho interest on eac! account was added to tho next one, mnkini the charge compound interest. This chargi the Court ordered to b> reduced to sin pi. interest, and the rliim then ftond at £l2Gi Is Id. The defendant complained, through hii solicitor, that the accounts rendered were un sali-fnetory, us they did not show what line become of tho wheat, and there seemed to b( a tremendous loss which needed explanation. On tho other hand, Mr Sc-rofan showed that defendant went away after Ilia seizure, and ho never saw him agnin until after the accounts wero rendered that he might explain matters to him. Tho defence re?olved itself, ac tho cuso proceeded, into one of law, Mr Btmt pressing two points; first that the local manager, Mr LeCren, who bad institute! the proceedings, was not legally empowered to buo for the Company, and secmd, that, the lien required the Company to sell all the grain, and as they had not. yet done so, tho proceedings had been instituted too coon. Mr LeCren produced a power of attorney executed by the Auckland Board of Directors, and Mr Stout questioned the power of th local Board to givo such an authority, Mr Joynl replying by pointing to amended Articles of A«soeiation of thn Company, providing for tho locil Biardin each oolony having eonrirato seals. As to (he second point, Mr .Joynt crgued that tho defendant could Buffer no injustice if he wero allowed 6d por bushel nioro for the wheat unsold than it was worth. It was finally agreed that tho jury should give a verdict for plaintiff for £1267 Is Id, subject to the points of law raised by Mr Stout bring further considered afterwards, and this was accordingly done. Mr Joynt. pressed His Honor (o givo judgment, with lojvo to tho other Bide to move for arrest ; but, Hiß Honor preferred to reserve, his judgment, with tho understanding that the matter »hall bo mentioned later during this eemion. James MeLoish v. WiHie, Allan and Stumbles— Claim £673 15s 4d ; defendants' counter cUim, £1075 6s sd. Mr Hameisley for plaintiff, Mr Whito for defendants. Tbis was n c»«o calling for investigation ef accounts merely, and it, was agreed that they ho referred to tho Registrar, judgment to he entered for tbo amount found by him. Tho defendants uclmit tho plaintiff's claim, but themselves claim the larger sum. David Evans v. A. Crawford— Claim, £200, damages for malicious prosecution. Mr Whito for plaintiff ; Mr Joynt, with him Mr Perry, for defendant. Tho following common jury of four was chosen : — A. Beswick, W. 'M. Howe, K. K. Mnnrn, and T. O'Driscoll (foreman). Mr Whito ehorlly stated the case. The defendant Crawford had on the 11th October last gono to Mr J. Jackson, J.P., to lay an information to tho effect that he hod reason to suspect that ono cook and five hens had been feloniously stolen from his place and that they were concealod on tho premises of the plaintiff. A search warrant was accordingly issued, and under virtuo of such warrant tho premises of plaintiff were searched by Detootiro Kirby and Constable Philips, tho defendant also accompanying them. It would be shown that tho goods never wore concealed on tho premises and never found thereon. Tbo plaintiff had been greatly injured by the whole proceeding, and ho thoroforo claimed £200 as compensation. The defendant admitted procuring tho warrant, saying that ho did so without any malicious motive, and that ho had eauao to think the poods wero on tho promises of tho plaintiff. Mr White then stated what evidence he intended bringing forward m support of tbo case, and then called David Evans, tho plaintiff, who stated that he bad resided m Edward street for the last five years, and during that time had bean employed at a wheelwright at Messrs Ogilvio and Byers'. Ho had known tho defendant for tho last three year?, tho sections they respectively occupied adjoining ouo another. On tho 11th October witnoss was busy m his garden when Detective Kirby, Constablo Philips and tho defendant called at bis house, and tho Detective informed him that ho had a warrant to search his premises for fowls. A diiigont and full search was then made of the wholo premises, witness assisting nil m his power. Thoy were occupied 'fully twenty miuutos m making the search. After somo daja elapsed and. nothing further occurred, ho (witness) saw his solicitors, and instructed thorn to write a letter to Crawford. (Letter read stating that plaintiff could not imagine why defendant had Buspoctod him, and that if a satisfactory settlement wero not come to, nn action would be- begun m tho Supremo Court.) The defendant did not reply to the letter, therefore witness instructed his solicitors to bring this iction. On tho 7th December defendant camo to him at the workshop, and said that he wanted to come to somo arrangoment ibout the affair betweeo them, offering to pay £20, saying that it would bo far better to 3ottleitbotween themselves than let it go to the lawyer.'. Witness requested him to put what he bad to cay m writing, and ho might accept it. Witness asked defendant if ho had any probable c«u--e for spying what ho did, and was informed none whatever. Witness also lskod him why ho did not reply to the letter 3ent him, to which defendant ropliod lhat ho thought thoro was no occasion to answer it. There were a good many lioubps m Edward streof, and round about. So far as ho wob aware there was do reason to suspect liim, and he knew nothing about tho 1033 until Detective Kirby's visit. He bad not been Further charged m tho mattor. It was just ibout tho dinner hour when the police called, md thoro wore a good many people about. Cross-examinod by Mr Joynt : He had never had a, disagreement with Crawford. Witnoas bad kept fowls all tho time ho had been living m Edward street, as ulso did Crawford. The latter had ncvor cotnplaine:! to him of losing fowls. His fowl yard was eorao 100 feet away from Crawford's. (Mr Joynt produced a plan of both premises, and witness ihowed where the fowl houses wero.) Witness' fowls and defendant's had not raised together for the last two years, John Jackson said defendant bad called at liis office on the 11th October with a search warrant, which he had signed. After reading the information bo askod dofondaot if he bad my cause to suspect plaintiff, and told him bbat it was a serious mattor. Defendant said lie had roasoni, but he did not tell them to witness. A. Kirby, detectivo of police, Baid he met iofendant on tho 10th September, who Baid Lhat ho had somo fowls stolon from hi« premises on the Saturday night or Sunday prorious to the date mentioned, and that bo suspected bis noiehbor, D. Evans, bad lakon thorn. Ho navo witness a written description of ihe fowls tint woro missing. Witneastold him thalif hewanted loseuxchdofoudßnt'apremiees bo would havototakeouta warrant. Defendant then naid that ho would defer tha matter for tho presont. Witness met defendant on the 10th October, and ha said bis euepioious, ksd

h been further fctrengthened, and that ho m m tender) taking out a eenrch warrant the nox lie morning. On tho following morning he me d- defenduut by appointment, who, witl ng witness and Conalablo Phillip?, pro at cpcvled to the residence of ths plain iw tiff, ami nftsr prorluning tho warrant V. the premises wore searched. No furthei ■ ; steps hud been taken m (ho matter tc fo witness' knowledge. o( Cross-examined by Mr Joynt : Ho did no) t, nilvise Crawford to take out a search warrant, cr The searching was done quietly, and there ir were very few people about at the time. \t M. A. Evans, wifo of plaintiff, was called ,y and said she knew nothing about the loss ol «, the fowls until tin- search party come. In i-e---•e ply to Mr Joynt, she 6aid ehe had never d spoken to the Crawfords. I. This was the case for the plaintiff, c Mr Joynt submitted that there was no oaau c to go to the jury. 'Ihcro was nocause Bhown ,t of any malicious prosecution — a mere issuo of a c search warrantnnd nothing raore. Nothing had s been done to affect tho phintiff personally. t A long argument then took place between His [I Honor and Mr Joynt on this point, the latter a quoting eoverid authorities m support of hia f view of the caso. Ultimstely it was decided , to defer the matter for a time, and Mr Joynt n then called tho defendant, j A. Crawford, who statod that his premises t adjoined the plaintiff's, and that they both r kept fowla. Somo of his— tho most expensive a kind — he missed on Sunday, the 9th Septemj ber. They were, he behoved, taken away. » rhe plaintiff must have known he kept ! fowls becauso ho could see right into the , section. When ho missed the fowls he ; went down to tho run and noticed somo tnarkß i of footprints There were marks on both ; eides ot the fence. He also noticed that trie i feneo hud been partly broken down and ths • wire nottiog of the run pulled out of place. There were a number of feathers about which i had belonged to Hnurlans— the kind he had mimed. From appearances he concluded that tho fowls had been taken during tho night. He told tho detective ho suspected his neighbor had taken the fowl?, his suspicions being excited by the way m which plaintiff epoke of the fowls at different times. Ho had missed fowls before, and hud on ono occasion found one lying dead on tho vacant section next his residence. He eu«pected that Evans killed it, as ho hnd complained of them being m his garden. He had epoken to plaintiff at the workshop on tko 7th inst. and told him that «ooner IhaD bare any more worry about tho mntter hu would prefer having it settled privately, it beins; of course fully understood that this was m no way to prejudice the present cusp. Plaintifi' replied that the caso was now iv the hands of his solicitors, and that the proposition must be submitted to them, and thßt possibly they wculd favorably consider it. Ho did not mention auy particular cum of money ho would bo prepared to pay- — only that ho would pay out of pocket expenses, and that he (plaintiff) ought then to bo satisfied. Croßs examined by Mr White : He generally attended to the fowls. The dog he possessod novor killed any fowls to hia knowledge or was evor m the fowl yard. Ha remembered receiving the letter, which be went through carefully and then handed to his solicitor?. Mr Joynt did not call any othor witnesses. He addressed tho Court at considerable length, us did aleo Mr White. His Honor m summing up referred to the difficulty of defining what amounted to a " malicious " prosection, and ther, glancing at tho evidence ot dofendant, told tho jury that if tho defendant had acted upon the facts he had recounted, ho had acted without reasonablo or probable cause. As to the malice, if they believed the defendant had been actuated only by a deeiro to bring to juetica a person whom ho believed to bo a thief, then they woidd not find malice, but if they believed ho hat! acted recklessly, and under Borne other feeling than a conviction of tho »uilt of the accused, it would bo competent for them to find euch malice bb was contemplated by the law. The jury then retired, nud after an absence of twenty minutes, returned a verdict for the plaintiff with £75 damages. Mr Joynt applied for and Hia Honor granted loavo to move to enter a nonauit ot tho next sitting m Banco at Christebureli. Tho Court at G. 30 p.m. adjourned to 10 o'clook this morning.