McLoughlin v. White.

Wanganui Herald, Volume XXXXIII, Issue 12584, 3 October 1908, Page 3

McLoughlin v. White.

Mr. Justice Chapman's decision in the five actions preferred against the Captain ot the Alexa by five seamen, for damages for malicious prosecution, came to hand yesterday. Only one case was heard when the Supreme Court sat — that of JidcLqughlin v. White — and the jury hearing the case failed to agree, and no verdict was returned, His Honor was then asked by defendant to nonsuit the plaintiff, and after hearing argument his Honor reserved judgment of the nonsuit pqint. In his judgment, which was a very lengthy one, his Honor said that at the £lospi of- plaintiff's case defendants' counsel moved for a non-suit 3 on the ground that the plaintiff failed to give any evidence of want of reasonable and probably , cause for laying the information. He was. inclined to grant this, but thought it safer to let the case proceed, reserving defendant's right to make this motion, and all rights which defendant might have. The defendant called evidence < which did not tend to add strength to plaintiff's case. Two questions were put to the jjiry (1) Whether the defendant acted "without reasonable and probable cause, and (2), wh.ejt.her he acted maliciously. The jury failed-, to agree, and neither question was answered. - The motion to non-suit was then argued before his Honor, Mr. Hutchison objecting that his Honor had no i power to non-suit in the absence of any finding on the disputed facts and that ! the abortive yial could only be regarded as an ineffectual step. The general principle upon which the Courts Act in actions for malicious prosecutions was that given by Bowen, LJ., as follows: "In an action for malicious prosecution the plaintiff has to prove first that- he was innocent and that his innocence was pronounced by the tribunal before which the accusation was made ; secondly that there was a want of, reasonable and probable cause for the prosecution or as it may be otherwise stated, that the circumstances of the case were such as to be in the eyes of the judge inconsistent with reasonable and probable cause ; and lastly that the 'proceedings of which he complains were initiated in a malicious spirit, that is from an indirect and improper motive, and not in furtherance of justice. "All those three propositions the plaintiff has to make out, and if any step is necessary to make out any one, qf ..those three propositions, the harden of jnaking: #ood that step rests tlpon the plaintiff." In the light of these- requirements his Honor was oi opinion toil- plaintiff had to make out hrs own innocence. He (his Honor), held that it was indisputable that the plaintiffs absence from the ship on the morning; he was arrested was without leave. -His Honor -also failed to find any lawful excuse for the plaintiff's absence. The men committed an offence for refusing 1 to Work at 8 a.m., even if there was an excuse* for quitting the ship an .hour latex to keep their- appointment with JM.r. -Hutchinson, and they might have been arrested for that offence. . Their failure to ask for leave was also fatal to the suggestion that they had a lawful excuse for'-.lsaving. . Theyvknew they had been ordered not to. Ko ashore without leave, and Were refusing duty whjen thisorcier reached them. If .they had lawful ground? foil claiming leave" to go' ashore they should have asked for it, and if refused leave, the question of the lawfulness of their action might have arisen. * His Honor was satisfied beyond douot the defendant had good grounds for going to his solicitor | and giving instructions for laying the informations. As to. the second cause laid down by Bowen, L.J., his Honor thought it was difficult to -see what evidence of malice there was for the jury to consider, the relations throughout the .'voyage being those of absolute peace. lAs to the question whether his .Honor had power to enter a.joon-suit, in view of there being a- verdict 1 Mr. Hutchison referred to cases which he contended supported the .proposition ..that the question of reasonable and probable cause should be determined on facts found by the jury. That .ivas, however, his Honor stated,, wjhere there was. a' dispute as to the facts, or as to the proper inference of fact to be drawn frqm proved facts. In the present case" there was "neither sf act nor inference of fact, tcr be found b» the jury, for., the plaintiff .Had supplied "the whole of the facts' upon which his Honor formed a conclusion of iaw.' His p-lonor thought, therefore^ hte aught to have non-suited the plaintiff at ,the conclusion of his "case, and that .the course, k\ hich for the reasons driven he took, was not strictly correct. ■ To recognise this was of some importance, -as it .showed he ought not to have 'put to the jury the first of the issues which he did put. In place of :that issue a judge ought to put sucii issues of fact as are necessary to enable him to .decide the question as a question oflawV That means that in this case 1 there was no "disputed, question to put Jo the jury. ■ -There was also the question .whelier, in face of. the abortive verdict he^duirht to allow ih,e for non-suit. ' The case was rare but nof absolutely " Williams, J., in a case in which tthe jury .failed to agree on an iss.ue without a finding; on which [the plaintiffs could,, not succeed, on motion pursuant to' 'leave reserved, nonsuited the plaintiff, holding that the contract relied on in support of Jthe issue which the jury had not determined, hati not been proved: In that case there was an. agreement &hat questions not covered by .the issues should be determined by the Court but that \a> r as one of the questions covered by the undetermined issue. When the plaintiff closed his case a question of .Jaw, -capable of being" determined upon -.undisputed facts was then raised, and leave was reserved in the fullest terms. - As to the meaning of. this his Honor re-f erred to- the expression used by Channel. Bi, a most experienced judge: — "The real meaning of reserving leave is' to raise a point of law for the consideration •of the Court, and they have, to deal :swth'. tithe case as they think -best in the interests- of justice." The whole case was before .the Court when his evidence closed. If the defendant obtained leave to move updn undisputedifactsrtoscntera non-suit; his, Honor did not see how he could be in a worse position by reason of the dis-agreement-of fhe jury thai? if the Court had directed a Verdict for the plaintiff, subject .to .the leave, reserved, or the parties agreed that the verdict should- be so entered. Mr. Hutchison contended that Jhe- action .might be regarded as one for false imprisonment. One ground of • this contention was .that Section 133 of . The Shipping and Seamen's Act 1903, did not justify the detention of seamen absent without . leave for more»than 24 jhours whereas plaintiff was detained from to' Jjflo'nday. This «was based on a misconception of section 133, which I relates -to summary arrest for the purpose, of taking a seaman on board his ship, not to an- arrest on warrant for a punishable offence. Here the magistrate ksuGd a warrant, instead of a summons, as hp had. power to doi ■ A summons a£ainst a sjeara-an not ■domiciled in the - Dominion, and who might readily obtain work anywhere,- might 'prove valueless as a means of bringing the seaman to Com*. ' The magistrate was not mislod', .and his -warrant .protected the de* i fondant. • . f I Judgment of non-suit was entered, ' with co«;ts (arrainst plaintiff) on the lowest scale. Costs of second day's hear-

ing £5 55., witnesses expenses and disbursements to be fixed by the Registrar, (soars -of nreftioarJor *o»-auit £g ss. t