THE CASE OF RUSSELL AND BARTON.

West Coast Times, Issue 328, 11 October 1866, Page 2

THE CASE OF RUSSELL AND BARTON.

(fkom the otago daily times.) (Before their Honors Mr Justice Rich- * /raond and Mr Justice Chapman.) Monday, Ocjsobee 1. Russeij. v. Barton. — This was an action for malicious prosecution ; and the verdicb was for the plaintiff, damages LSOO. • B Mr James Smith now moved for a rule nisi for a new trial, on the grounds that the findiqg was against the weight of evidence, and that the damages were excessive. He contended that Mr RobertGillies' evidence was sufficient corroboration of that of Mr Barton to establish reasonable and probable cause ; and that there was nothing to show special damage, or in any way tor justify a verdict for such an amount as that given by the % iury. Mr Smith, also asked that'he might be allowed to talte the rule »?',??, so tn3t he might have time, which he had not yet had, thoroughly to examine the reported cases, Mr Justice Chapman : Entertaining the very decided opinion that we do, we agree | that no rule should go in this case. As to the first, ground, the question is one ptfrely for the jury.; and although my learned Brother was of opinion,- at the time, that the damages were large, yet, with the verdict for the plaintiff, he had no reason to be dissatisfied, 1 nor any reason to be dissatisfied with the mode in which the jury answered the questions, seeing that what was really submitted to them was a question of credibility of testimony, with which the Court had no right to interfere. It was not necessary to the answers given, that the jury should absolutely disbelieve Mr Gillies : it was sufficient for them to say that Mr Barton ought not, upon such a statement, to have entertained such a state of mind as he did, and which alone could, in his own belief, justify his going, before a Magistrate, and charging Captain Russell with wilful and corrupt perjury: The jury must have thought that ttfat was a hasty and unjustifiable proceeding; and, therefore, they answered the questions in such a way a3, justified the Judge in concluding that he so went without reasonable and probable cause. As to the second ground. No doubt, taking into consideration the whole of the circumstances^ the damages appear large. As I have said, I had occasion, some years ago, to look narrowly into (he reported cases of application on the ground of excessive damages. I found that the cases cited by the text writers in favor of the Court interfeiing, were, with the exception *of two or three, cases in which the Court had declined to interfere : that is to say, cases in which' the Courts, in declining to interfere, had always saved their power to interfere — had said, in substance, " We will interfere where (he damages are gross, or enormous, or»excessive, but we are loth to interfere." That, I believe, states with sufficient correctness, the current of the decided cases ; and we do not think that we should now be justified in interfering on the ground of, excessive damages. If we granted the rule* nisi, with the opinion we entertain, both on the law and the facts of the case, it could only end in the discharge" of that rule, andputtitig the defendant to additional expense. The rule must be refused.

Mr Justice Richmond: In saying, just now, that I was not dissatisfied with tl*.e verdict, I did nbt imply that I Concurred in it. In saying that lam not satisfied with it, I only mean that I cannot takeupon myself to say -that it is wrong. My own answers to the questions put to the jury might have been different ; still, when those questions are answered in the affirmative, it is. by no means certain that the prosecution for perjury is justified; because a man is not justified in preferring a charge of perjury in every case in which he has reason to believe that his adversary bjas made an incorrect statement. It is not enough that the statement is false : there must be' reasonable ground for believing it to be wilf ully and corruptly false. Rule refused.