SUPREME COURT, DUNEDIN.

Clutha Leader, Volume III, Issue 131, 12 January 1877, Page 3

SUPREME COURT, DUNEDIN.

Tuesday, January 9. (Before His Honor 'Mr Justice Wniian*sj.

His Honor took his seat at 10 o'clock, and the common jurymen were sworn.

THOMAS HILL V. ROBERT ANDREW,

Claim for £500. damages for ma-licious-prosecution. Mr Macassey for the plaintiff, and Mr Haggitt for the defence. "

Thomas Hill deposed that he was a storekeeper, living at Catlin's River. He had commenced' business as a storekeeper abo,ut a *m on th before the prosecution complained, of. He had been in the Province for 18 years, and had known the defendant for between/ 12 and 13 years. Witness was' at Catlina River when defendant went there,, and, had been working at the mill for some time previous. After' Mr. Andrew, took the mill, witness was engaged for nine months rafting timber for him. 'Mr Andrew kept the general store connected with the mill, and witness opened a general store at Catlins River. On ;the 4th July witness and his brother went to purchase somb timber from' Mr Andrew, and to borrow a punt to bring it round. ,At this time witness' had opened his.store, which was two mile's by the river from defendant's store 5 - and mill. The arrangements, for theopurchase of the timber and the loan of $he print .were made by witness" brother: He was friendly with -the defendantsat this time. -On going down, the river witness got some timber froni a' Mr M'-Badyen. The ;* timber' cj-was-v refuse ; timber, such as people were taki rig-to. ■ ',"-'■■• C'ri., '■ -A AA-A KA l ,'t;TT*--.*J..* ..rp ..f.J-ftk&.j burn. A here was not more than ouft. of^his timber taken, and it was no.t;ofi any value. The timber was taken to

trim She punt with* When they reached the [store- the refuse timber was thrown on the ground, and it was lying there still. On the 6th of July" witness receivedi a letter ffdrri Andrew, rDicksou, .and; Go.,* threatening, to -set the police, in motion ., if .the timber was-'nb't^reX' turned. Witness sent his brother to defendant to explain .what had been taken. Nothing further' occurred'between plaintiff. and defendant/until an information was served upon him, and he appeared at the Court at Balclutha to answer a charge,,' of stealing thetimber. Th c d efe nda n t g*a ye cvi ci ence, and ! the result wasHhat the .accused, persons; — tiie witness, his brother, and 'M^Fad-. yen — were discharged..-. , Before this charge of felony no, charge had.eyer been' brouaht against him. •'-' ''

..Witness, cross-examined by Mr Haggitt, said' that the' store- he had opened would not much -with the,deiendant's store. He could say that the

prosecution was' taken because he shad opened the store. '■•'; -•'"-' ■ ■ •.'George^ M'Fadyen ..deposed that he bad been discharged by, Mr.' Thomas Dickson, several days prior to 4th July. On' the 4th of July witness-gave'plain-tiff some refuse .timber— some ten 'or a dozen pieces. Most of the timber had been lying near the house before MiAndrew was proprietor of the mill, and what was taken -was' hot" worth a sixpence. . , . James Hill gave evidence similar to that given by the first witness, r

Mr Haggitt moved for a nonsuit, on the grciund that there was not evidence of want pf sufficient cause ori the part of the defendant, in instituting*. the proceedings. ... ..., His /Honor having considered the point, said that it the timber that the.

plain tiff was charged with having. taken, was really refuse timber, and of, no.

value, and if it was taken in open; day, when people were about, and; without any of the circumstances ordinarily indicating felonious intent, and if the parties who were concerned in taking it shortly afterwards gave a reasonable account of the circumstances under which it was taken,— if then the defendant instituted proceedings for, felony, the proceedings would be instituted without reasonable and probable cause. The question whether the timber was refuse timber, and as to whether the explanation was a reasonable one, was for the Jury. He would not stop the proceedings a*; this stage, for if the timber was valueless, and the explana-

tion satisfactory, the Jury would be right in -finding* that the defendant acted without reasonable cause.

Mr Haggitt then addressed the Jury at length for the defence, and called —

Robert Andrew (the defendant), who deposed that James Hill and M'Fadyen were dismissed from his mill for drunkenness and neglect of duty, Thos. Hill left of his own accord to build a store. Witness gave plaintiff and his

brother some timber, sold them several lots, and also lent, them .money,, to pay the carpenter. The store started by the |plaintiff did not at all interfere with witness. On the 4th of July witness sold plaintiff some timber, and lent a punt for its removal. The timber

lying near M ' Fa dy en's, house was. the property of the firm.' It was secondclass timber, and worth 4s per" hundred feet. On the sth of • July'witness-re-ceived information, that the . Hills had taken away a large quantity of timber. One of the men said 3000 feet had been taken away. , ,On the following day witness wrote the letter which had been read, and in consequence of that one bf

the Hills came to his office and said he would not return the -timber, as they had bought the timber and paid M'Fadyen for it. The statement was flatly denied by M'Fadyen, and James Hill afterwards declared that, bejiad never made, such a statement! When the information was laid* he* -had not the slightest malicious feeling against the men, or either of them. He" took

legal advice before laying the information, and stated the whole of the facts to Mr Taylor, ths district Crojvn,prosecutor.

Robert Monker deposed to having seen John and James Hill removing! the timber which they were afterwards charged with* having -'stolen* : i". Counsel on both sides having addressed the Jury, and his Honor having directed them and read over the" principal points of the evidence, the Jury . retired, and after . t deliberation returned a verdict for deferidant*.' The answers to., the "issues." which .had not

been admitted by the defendant we're, that there had been' no malicious prosecution, and that the plaintiff was not entitled to, damages.— Guardian.