A NON=SUIT GRANTED

New Zealand Illustrated Sporting & Dramatic Review, Volume XVI, Issue 938, 27 February 1908, Page 21

A NON=SUIT GRANTED

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 Honour was received last week and read to the parties interested- In the course of his judgment, his Honour said 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 me p’aintiff the consideration being the getting of a share of his trade. Plaintiff got into arrears with his payments, 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 th? balance. These notes were dishonoured. and on January 31st, 1907, a summons on the Magistrates’ Court had been issued in respect of one such note for £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 sett’ement of the summons. The plaintiff al’eged, 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 on the licensed premises of the plaintiff. The p’aintiff sued the defendants for damages, but, being advised that the judgment was 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 defendant asked for a non-suit on several grounds. His Honour intimated that, in his opinion, there was no evidence to go to the jury on the question of maHce, but that it was advisable that the jury should assess the damages provisiona’ly. Counsel for defendants did not call evidence, and the jury assessed the damages at The case was then adjourned for

further consideration, defendants asking for a new trial.

The cause of the action alleged by the plaintiff was that the defendants wrongiu'ly. ma iciously, and without reasonab’e and probable cause, caused a dis-tress-warrant to be issued and executed against the goods of the plaintiff. Hi’s Honour, in a particularly lengthy review of the case, said that he was of the opinion, after the full consideration of the facts and arguments of counsel, that there was no case to go to the jut y on the ground either of want of reasonable and probable cause, or of malice. His Honour did not think the plaintiff did, in fact, suffer any damage. There was no seizure- He himself, quite properly informed his banker, and his'leading creditor of the fact. His c’aim for ,£lOOO damages, and the lines on which his case was conducted, showed that he, as was usually the case, wanted to make money out of the transaction, outside any reaT damage. The question of damages, however, was always one for a jury. The effect of a distress, however indulgently conducted, was not capab’e of exact estimation. The only ground on which his Honour might have considered the app’ication was. that, notwithstanding his intimation that only such damages as might be reasonably assumed to have been caused by the entry were recoverable, counsel for plaintiff urged upon the jury the conduct of the defendants as grounds for practically punitory damages. In sum-

ming up, his Honour warned the jury not to act on these suggestions, but it was impossible to say how far they may have influenced their verdict.

His Honour therefore decided to grant a non-suit.