QUINLAN V. SWAN.

Wanganui Herald, Volume XXXXII, Issue 12395, 20 February 1908, Page 5

QUINLAN V. SWAN.

An Interesting Case.

A Non-Suit Granted.

(Per United Press Association.)

AUCKLAND, February 19. In the case of Patrick Quinlan v. John George Swan and others, heard before Mr Justice Denniston at the civil sitting of the Auckland Supreme Court in November last, the written judgment of His Honqr was received yesterday and read to the parties interested. In the course of his judgment his - Honor sai/ that plaintiff was an hotel-keeper in Auckland, and the defendants were brewers, carrying on business in Wanganui The transactions commenced by defendants in May, 1906, advancing the plaintiff <£100, the consideration being the. getting of » >share of his trade. The plaintitf -got "into arrears Tvith vis payments, 1 both in meeting bills and on current account. In September he had met one of the defendants in Auckland and had a settlement, giving promissory notes for the balance. These notes were dishonoured, and on January 31st, 1907, a summons in the Magistrate's Court had been issued in respect of one sucbr-note fo/ ,£37. On that date plaintiff wrote to the defendants on the subject of his financial position with them, and enclosed two cheques (one post-dated) in settlement of' the summons. The plaintiff alleged and the defendant denied that this was accepted by- the defendants in settlement of the judgment. The 'defendants subsequently obtained judgment on the note, and later a warrant of distress was issued, under which a bailiff entered oh the licensed premises of the plaintiff. The plaintiff sued the defendants for damages, but being advised that the judgment wa» a bar to the action, he discontinued, and obtained an ex parte order setting aside the judgment and all subsequent proceedings, and then brought this action. At the close of plaintiff's case counsel for the. defendant asked for a nonsuit on several grounds. His Honour intimated that in his opinion there was no evidence to go to the jury on the question of malice. TBe cause of the action alleged by the plaintiff^was that the defendants wrongfully, maliciously, and without a reasonable and probable .cause, caused a distress warrant to be issued and executed against the goods of the plaintiff. His Honour,, in a lengthy review of the case, said that there was no case to go to Hhe jury on tho.. ground either of want of reasonable and probable cause or of malice. He had therefore decided to grant a nonsuit. r