SUPREME COURT, DUNEDIN

Cromwell Argus, Volume III, Issue 141, 23 July 1872, Page 6

SUPREME COURT, DUNEDIN

! CIVIL SITTINGS. K [We extract the report of the foil J case from the. Evening Star of the lotK-B !It was heard on that day before Mr Jtfl i Chapman and a jury.] fig MALICIOUS PROSECUTION. M Patrick Cottar v. James Torrie *M action to recover L.GuU, damages for lnahyß prosecution. There was a special count! damages in respect of expenses incut™ defending the proceedings out of which present action arose, injury to plaintiff l .' putation by reason of those proceedings on account of their aggravated nature" Macassey appeared for the plaintiff, a y Smith for the defendant. The plaintiff' and defendant reside at ( drona : the former being a slaughterman.] the latter a sheep- farmer, which business plaintiff also carried on. The parties <J about 1200 sheep apiece. About three v ago, the plaintiff instituted civil proceed against the defendant, and recovered k ment against him ; and on behalf of the! mer it was contended that the result hadb to raise ill-blood between them. At the of last year, defendant informed Consb! Corayn, stationed at Cardrona, that he lost a considerable number of sheep • moreover, that he suspected Cottar of liavi stolen them. This charge was made to I police constable on more than one occasic and, in order to bring the matter to an iss the constable recommended that if defends found any of his sheep in Cottar's possess! he should send for him (the constable) 8 he would make the necessary inquiries length the charge assumed specific form a on the 12th January defendant and his si appeared in Cottar's yard, when he was 6 gaged mustering and shearing sheep a said, "I have come to search for stol sheep." This accusation naturally rous Cottar's anger, and the result was he assault J'orrie, for which he was subsequently fine The constable was sent for, and Tonic havi selected one out of a flock of sixty sheep being his property, he accused Cottar of ha mg stolen it. Tome's sheep were brands with a circle, and had a horizontal baracros and had ear-marks—two slits in the off ej Cottars brand was a T on the near shoulde with a slit in each ear. The sheep select! by Torrie unmistakeably bore Cotter's brain and each of its ears had a slit in it ; neve theless Torrie persisted in claiming it as hi and it was carried away by him. The clian of stealing it, preferred against Cottar, i investigated in the Warden's Court at Aran town ; and at the investigation, width to place before Mr Beetham, Torrie and seve witnesses were examined. The niagistia dismissed the ease without calling fur any explanation, or examining auv of ][ witnesses, a number of whom were iii attei uanee. For the plaintiff, it was alleged (hi the prosecution was a malicious one, and j support of that contention, an extract inn '.he defendant s examination before the Wai den at Arrowtown was read, as showing tl groundlessness of the charge he made again] Cottar :—« The sheep produced has one si only m the off ear ; my brand is two slits i the off ear. To explain the contradiction,) would say that the second slit might harj been cut off by Cottar, [.cannot point oii any mark showing where the second slit hai been cue away. The sheep produced <W not .show any mark of having been cut re cently on the ear ; but 1 believe the car hj been recently cut, for the purpose of cuttin| oil' the second slit. It is merely my suspicioi that the second slit Ims been cut off. 1 have no hesitation in saying that the slice] is mine : at the same time", I have only a sus picion that the ear was cut."

Mr Smith said he would merely put thedd fendaut in the witness-box that the jiirj might be enabled to judge upon one point, viz., whether or not, as had been pointed OB by the learned counsel on the other side, till defendant, in bringing the charge of sheep stealing against Cottar, had been actuated hj a vindictive feeling arising out of atrumpaj action for L.li some three years before, Tome, as it would appear, was a very simple minded man, and though he acted possiblj on good moral grounds, unfortunately fa him he had not sufiicient legal evidence to justify him in setting the criminal law in motion. It would appear perfectly clear W ho was not actuated by any such'motive as had been attributed to him ; and that lie really believed the sheep had been stolen. The learned gentleman submitted Cottar's reputation could not have suffered to the extent] of L.300, as alleged by him ; and all that lie] was entitled to was the reasonable expenses! of himself and his witnesses. Torrie would] be sufficiently punished by having to paytlie! heavy expenses of this action. The defendant, in cross-examination, sail he still believed Cottar stole his sheep. The jury, after half an hour's retirement,; found for the plaintiff,--damages, L.BO.