SUPREME COURT.

Globe, Volume IV, Issue 435, 4 November 1875, Page 2

SUPREME COURT.

SITTINGS IN BANCO. OSBORNE V BANKS AND OTHERS; In this case, a decree for taking accounts was made by consent FOWLER V MCARTHUR AND ANOTHER. In this case a rule fiisi had been obtained, calling on defendants to show cause why the verdict for plaintiff should not be set aside and a new trial bad on the following grounds (1) That the learned judge who tried the case had improperly admitted evidence of the character of the plaintiff. (2) That the damages are excessively small. Mr Garrick now showed cause, and contended that evidence of character was admissible. His Honor pointed out 'that would apply to actions- where it was sought to recover damages for injury to reputation and character, but in actions for malicious prosecution damages were sought for personal restraint and inconvenience as well as for injury to reputation, Mr Garrick resumed, and argued that evidence as to character was admissible in aggravation or diminution of damages. (Sedgwick on Damages, American edition, 1874. p. 692), His Honor said that a judge of New Zealand would be bound by the decisions of the

English ‘Courts as to the common law of England, although he might, in his private judgment, go with an American decision. And this was because, by a declaratory Act of the General Assembly, it was stated that the common law of England, and even the statute law of England, held good in New Zealand where they were applicable. Mr Garrick said that there was an allegation in the declaration that plaintiff had suffered in his reputation, and where that was the case evidence as to character was admissible. He also contended that the evidence was admissible in contradiction of plaintiff’s statements. As to the second ground, the amount of damages was peculiarly a question for the jury to decide.

His Honor—Here is a case in which £lB6 damage was proved, and yet the jury found one farthing. Mr Garrick contended that the jury had the right to look at all the circumstances when considering the question of damages. He had not been able to find any authority to show that a jury was bound to find the amount of damage legally proved. Mr Joynt, in support of the rule, submitted that evidence of character in an action for malicious prosecution, was not admissible either to prove probable cause or in mitigation of damages. [Taylor on Evidence, section 328; Newsome v Carr, 2 Starkie, 69 ; Downing v Butcher, M. and R., 274 ; Jones v Stevens, II Price, 235 ; Cornwall v Richardson, R. and M., 305 ; Thompson v Nye, 16 Q. 8., 275.] Then as to mitigation, he would submit that even if the evidence were of a kind to be adduced in mitigation of damages, it dealt with matters of a kind of which notice ought to have been given. On all the authorities in an action for malicious prosecution, such evidence ought not to have been admitted at all. It was remarkable 100, that in speaking of cases where character was involved, no notice was taken in the books of the admissibility of ,evidence as to character in cases of malicious prosecution, and this would seem to imply that the English Courts rejected it in such cases. The plaintiff’s character was not in issue ; the evidence therefore was not admissible on the ground that it affected plaintiff’s credibility. As to the smallness of the damages, he would submit that according as the evidence ?ed, the jury had not given a reasonable verdict. [ Armitage v Haley, 12 L. J. 323, and 4 Q. B. 917.] The jury by their verdict found that there was no reasonable and probable cause, and yet they only gave a farthing damages. This, he would subipit, was owing to improper evidence being admitted, which influended the minds of the jury, and therefore he would argue that the rule must go, and a new trial be had. His Honor took time to consider. DIVORCE AND MATRIMONIAL CAUSES ACT AND RE HILLS V HILLS AND ANOTHER (CO RESPONDENT). Mr G. Harper applied for an order settling questions of fact for the jury pursuant to rule 45. The Cojurt made the order. The Court then rose.