SUPREME COURT.

Globe, Volume IV, Issue 420, 16 October 1875, Page 3

SUPREME COURT.

SITTINGS AT NISI PRIUB.

Friday, October 15.

1 Before bis Honor Mr Justice Johnston and a Special Jury,] HisHonortook his seat in Court at 10 a.m. FOWLER V MCARTHUR AND ANOTHER. For plaintiff—Mr Joynt, with him Mr O’Neill. For defendant —Mr Garrick, with him Mr Cowlishaw,

The fuuhcr hearing of this case was resumed.

John Flowers deposed to attending at the Waian Court-house to give evidence against plaintiff on the prosecution of John McArthur.

Edward Rent, a sheep farmer in the district, gave evidence as to the defendant having sai l that, plaintiff was a nuisance, and he would have him out of the country in two years.

William Armstrong was examined by Mr Joynt, but his evidence was not material to the issue.

This closed plaintiff’s case,

Mr Garrick submitted that plaintiff must be nonsuited, because he had not given evidence of the absence n* 5 reasonable and probable cause of prosecution, or on the same, ground that his Honor direct the jury to return a verdict for the defendant. There was no evidence of malice on the part of tne defendants in tire action, and therefore he submitted that the defendants were entitled to a non-suit or a verdict in their favor. | Cases cited—Lyster v Perryman, 31) L J. Court of Exchequer, pg 176 ; Brookes v Plain, C. P., pg. 1 ; Wyatt v White, 21) L. J., Exchequer, pg. 193.] Mr Joynt, contra, submitted that there was no evidence at all before the Court to show that the defendants had the slightest cause for acting as they had done in prosecuting the plaintiff. After hearing the learned counsel on both sides at great length, His Honor declined either to grant a nonsuit or direct the jury to return a verdict for the defendants.

Mr Garrick then proceeded to call evidence for the defendants.

The defendant, John McArthur, was called, and produced fac similies of the various ear marks of plaintiff and his (defendant’s) own, deposing that Fowler’s brand could be made by altering defendant’s brand by the cutling of a piece out of the ear, and that in three or four cases sheep wore found with defendant’s face brand and the ears recently cut, giving rise to the suspicion that defendant’s mark had been altered to that of plaintiff. Plaintiff’s attention had been frequently called by defendant to these supposed alterations On one occasion he called attention to a cross-bred wether, which boro marks of recent alteration; the plaintiff bad no cross-bred sheep. On 22nd February, 1875, drafting was going on at Stanley Vale, and defendant picked out a sheep with ears freshly cut. It had defendant’s face biand on it, and he claimed it as his. Plaintiff did not deny the ownership of the sheep, arm said that he could not account for it except that it had been done while shearing. The sheep in question was shorn and bore plaintiff’s wool brand. On the 2-lth February, Corbett brought a sheep’s head to St James’ station with plaintiff, who had been arrested by Corbett. Defendant recognised the head as belonging to him. Corbett then detailed the circumstances under which plaintiff was arrested by him. On arriving at the Waiau Court, the defendant was requested by Corbett to swear an information, but ho declined, and Corbett made the information, defendant not being at all clear as to the dates mentioned in the information.

On cross-examination by Mr Joynt, the witness deposed to having shorn and facebranded sheep, the property of the plaintiff, and also that it was a common practice among sheep farmers from mistake. James Robinson, a shepherd, gave evidence referring to the finding of a sheep amongst plaintiff’s sheep bearing defendant’s ear mark. He knew of fourteen sheep having been shorn in a bush gulley. Mr Fowler had told him so. It was a mattor of general report that plaintiff had ear-marked other people’s sheep, and had also shorn some of McArthur’s sheep. The general character of plaintiff in the district was bad. The witness had gone into Fowler’s service for the purpose of watching him. The defendant engaged him to watch the plaintiff. The witness left McArthur’s employment to go to Fowler’s, where ho got better wages than at McArthur’s, and sundry advantages. In cross-examination by Mr Joynt the witness said that the defendant, John McArthur, knew that Fowler had asked him to go to him. Ho told Mr McArthur two or three times what was going on at Fowler’s. He did not act in concert with Corbett, but the last week or so he was watching Fowler together with Corbett. He had an understanding with McArthur that he could go back again when he left Fowler’s. He never told Fowler that ho was watching him ; that would spoil the game as regarded the watching. Had he known earlier that Corbett was a detective the plaintiff would have been arrested earlier.

Hugh Mcllraith deposed to the information against the plaintiff being sworn by one John Corbett, who said he was a detective. The plaintiff bore the reputation in the district of being a suspicious character as regarded wool and sheep, nothing else. That reputation had attached to him for some eight or nine years. It was very often the case that a wool brand was put on a sheep belonging to some one else, but never of a ear mark being made in mistake.

Alexander Kennedy, a shepherd, deposed that on the Bth February they were drafting at 8t James’, when there were more of Fowler’s sheep than of McArthur’s. Mr Duncan McArthur picked up a sheep having his face brand and wool brand, and Fowler’s earmark recently made, 'ihe witness also gave evidence, on cross-examination by Mr Joynt, of the mustering of the sheep on Lake Guyon country on the occasion referred to. The sheep were driven to St James’yards, which are twenty miles from Fowler’s. There were yards at Lake Guyon, which was only two miles from Fowler’s. Duncau Mci 5 rthur, one of the defendants, gave evidence as to the finding by him of the sheep on the Bth, as spoken of by the witness Kennedy; On cross-examination by Mr Joynt, the witness deposed that he did not know what information Corbett laid, nor did he read it. He had given Corbett information that he had found the sheep on ihe Bth February, as detailed by the other witnesses ; Corbett himself was not present on the Bth. Mr Garrick tendered the depositions of John Corbett, taken at Waiau, for the purpose of showing probable and reasonable cause. His Honor declined to allow of the depositions being put in, on the ground that evidence given before the Magistrate by Corbett could not be got in to show that the prosecutors had reasonable cause. John Scott Caver hill was called, but did not appear. The addresses of the learned counsel on both sides being expected to last some time, The Court then adjourned until 10 a.m, this day.