SUPREME COURT.

Globe, Volume IV, Issue 438, 8 November 1875, Page 2

SUPREME COURT.

SITTINGS IN BANCO.

Thursday, November 4

(Before his Honor Mr Justice Johnston.) His Honor took his seat at 10 a.m FOWLER V M‘ARTHUR AND ANOTHER.

His Honor gave judgment in this case:— “ The defendant in this case having abandoned his rule nisi for a new trial, I have now to determine whether the rule obtained by the plaintiff for a new trial ought to be discharged or made absolute, and I have come to the conclusion that it must be made absolute. The two grounds upon which it was moved are—first, that evidence of the general bad character of the plaintiff was improperly admitted at the trial; and second, that the damages awarded by the jury were inadequate in the face of the uncontradictcd evidence of expenditure by the plaintiff caused by the prosecution. With regard to the first ground, the evidence was tendered and admitted both for the purpose of establishing the existence of reasonable and probable cause, and also for mitigating the damages. As the jury have found that reasonable and probable cause did not exist, the plaintiff has not, in this respect, any ground for a new trial; and the question therefore is whether the evidence was receivable in mitigation of damages. Now, with regard to this point, it is contended for the plaintiff that the Court must assume that the smallness of the amount of damages awarded must be, or probably was, attributable to the evidence in question, as upon any other supposition the verdict would appear to be one of mere compromise, and such as in some cases has been treated as no verdict at all. It was submitted for the plaintiff that even if the evidence were admissible in mitigation of damages it could only be so if the defendant had given notice, according to rule 66, that he would claim mitigation of damages in respect of the general bad character of the plaintiff. It is unnecessary for me to decide whether the non-compliance with the rule would be good ground for a new trial if the evidence were admissible at all, because lam of opinion that there is no authority to show that such evidence is admissible in enaction for malicious prosecution. The vexed question alluded to by Mr Pitt Taylor in his work bn Evidence, 383, must, I think, be taken as applicable only in actions of defamation, where injury to the character is the primary and fundamental cause of action, and although I might have fel trustified in adopting the conclusion arrived at by that learned commentator, if the action had been one of libel or slander, I do not feel justified in extending by analogy the principle on which such evidence is said to be admissible in such actions to a case of malicious 'prosecution, • where injury to character, though incidental or consequential, cannot be said to be the very foundation of the right of action. In the absence of any express authority in favor of the defendant’s contention, I am obliged to conclude that the evidence in question was not legally admissible. It is unnecessary for me to go into the question of measure of damages, and whether, in the absence of any evidence of general bad character tending to reduce the damages, the inadequacy of the amount found by the jury in the face of the uncontradicted evidence would have been a good ground for granting a new trial. “ For the reasons above-mentioned, I am of opinion that there must be a new trial, and the question of costs must be reserved till the conclusion of the second trial.” Rule absolute. Leave to appeal granted. HERBERT Y THOMPSON AND OTHERS. His Honor gave judgment in this case : " This was a motion for an attachment against three members of the Otago Waste Lands Board, It was heard before me at Dunedin, Messrs Macassey and Haggitt appearing for the parties moving for the attachment, and Messrs Barton and Stout for the Waste Lands Board. The argument was heard at considerable length, and before its close I intimated to Mr Barton that I would give him an opportunity of being heard on a point on which he laid considerable stress—namely, the absence of jurisdiction in the Court to issue the injunction at the time when the motion for dissolving the injunction should be heard before me. On account of circumstanc°s over which I had no control, I was obliged to leave Dunedin before hearing the motion to dissolve, and before giving Mr Barton- an opportunity of being heard again. The case was subsequently heard before Mr Justice Williams, who delivered judgment-dissolving the injunction, holding that the parties who procured the injunction had no equity ; and also deciding against Mr Barton as to the jurisdiction of the Court. Now, although as at present advised I agree with my learned brother on both these grounds, it would have been quite competent for Mr Barton to have insisted that he should be heard again, as the decision given by my learned brother does not bind me; but from a telegraphic communication received yesterday, I understand that the members of -the Waste Lands BoardJ do not wish to be heard further in this question, and I am therefore at liberty to proceed to give judgment. I am sorry that I have not the affidavits at hand to refer to, but from my notes and my recollection of the case, I am enabled to give judgment at once. In the first place, it was not doubted that an attachment [might issue for contempt, even if the injunction had been irregularly obtained, and on insufficient grounds, because it was a settled doctrine that it was the duty of every person to obey an injunction until it was dissolved. It was to be remembered that the injunction was moved for on the 6th July, whilst the act sought to be restrained would have taken place on the 6th July. The injunction was granted, and three members of the Board, contrary to the opinion and protest of the chairman, resolved at all risks that the injunction should not be obeyed, and they accordingly directed that the officers of the Board in the country, whom the chairman had directed to abstain from receiving applications, should receive them. In determining the question before me I have to consider the acts of the parties against whom attachment is prayed, as stated in the affidavits in support of the rule; and also those acts as qualified and explained by their own affidavits. In the first place it is clear that they made up their to rua the rialt of contumacy pstj

disobey the injunction of the Court I may state that I was asked by Mr Macassey to treat their affidavits as scandalous and irrelevant, and to order their removal from the file. I did not see my way clear to do that, but I must state that the affidavits contained expressions which gave rise to a certain amount of suspicion that the parties were desirous of vindicating the conduct of the Board to the public. There were certainly some expressions in those affidavits from which — although contumacy was disavowed, it was perfectly iair to come to the conclusion that there was some intention of defying the authority of the Court. That being the case it would be perfectly justifiable for me to come to the conclusion that if the Court did not see its way to punish the members of the Board by committing them to prison, it might so far punish them by mulcting them in the costs of the motion. That is a conclusion I might have come to, but after consideration of the status of the parties who moved in this matter, it not only turns out that they had no equity—which might not have been enough of itself todisentitle them to have their costs —but also I cannot forget that this motion, which was for the purpose of initiating coercive measures, was made the day before the time when, according to the proclamation, applications had to be made ; and the Board might have thought that if they turned out to be in the right the public might have suffered from the nonreception of • the applications at the time proclaimed. Taking all this into consideration, I do not feel that it is necessary for me to say that the contempt or quasi contempt was such that it ought to be punished, either by imprisonment or by mulcting the parties in the costs of the other side. The rule for attachment willjtherefore be.discharged without costs. Mr Garrick applied for leave to appeal, which was granted. SITTINGS IN BANKRUPTCY. His Honor took his seat at 11 a.m. BB EDWARD CROKEB. Debtor, who in person applied for his final order of discharge, said that he attributed his bankruptcy to want of employment ; he was a retired officer in her Majesty’s service, and had also been employed in the Civil Service. No debts had been proved in his estate. His Honor granted the discharge. BB WILLIAM GRANT. This case was ordered to stand over to 6th December. ' BB JAMES OLDHAM IRVING. Mr Bamford applied for the final order of discli arge • Bankrupt, in reply to the Judge, said he attributed his bankruptcy to being laid up with a broken leg for six months. Order of discharge granted. JBB JAMBS MCMUBRAY. Mr Slater, for Mr Thomas, applied for the final discharge. In reply to the judge bankrupt stated that he had taken contracts, having no capital to start with. There was no opposition. Discharge granted. BE WILLIAM BUENIP, This case was adjourned to 6th December. BB JAM ECS HOLES. Mr Slater applied for the final discharge. Bankrupt, in reply to the judge, said he had, been ill for three months. None of his creditors appeared to oppose. Discharge granted. BE JOSEPH. BRUNT. Adjourned to 6th December. RE JOHN HESLOP. Bankrupt in person applied for his discharge. In reply to the judge, bankrupt said that he attributed his bankruptcy to sickness in his family. Discharge granted; RE MIDDLETON AND MCQUADB. No report having-been filed, the case was adjourned to 6th December. BE ANDREW SCOTT AND THOMAS SCOTT. Adjourhed to 6th December as no report had been filed. RE STEPHEN CROPP. Bankrupt in person applied-for his final discharge, which was granted. BE NATHANIEL WILLIAM MELBOURNE. Bankrupt in person applied for his final discharge, which was granted. RE JOHN H. NODING. Bankrupt applied for his final discharge, which was granted. RE JAMES GLEN PURVIS. Mr Slater for Mr Thomas, applied for the final discharge. No opposition. Final discharge granted. BE JAMBS GILBERT BURGESS. Mr Joynt applied for final order of discharge. No opposition. Discharge granted. RE WILLIAM M'CLUBE. Mr Slater applied for the final discharge, which was granted. BE ROBERT ALEXANDER JOHNSON. Mr Bamford applied for the final order of discharge, which was granted. ADJOURNMENT. The following cases were ordered to stand over to 6th December—J. W. Donald, Joseph Carder, J. G. Seth Snoswell, Thomas Jervis Byan, David Miller. BE RICHARD SHANNON. Bankrupt applied for his final discharge, which was granted. RE BARKER AND PAWSON. This case had stood over from last sitting. Mr Oowlishaw, who appeared for creditors, now applied for a further adjournment for the attendance of witnesses from the Peninsula. Mr Thompson, for the bankrupts, said he bad received no notice of the application. Ordered to stand over to the 6th December. BE HENRY PHILLIPS. Mr Slater moved for the final discharge, which was granted. RE THOMAS SHAILER. Bankrupt applied for his final order of discharge. Bankrupt was examined by Mr Jameson, , for Mr H. 0. Adams, a proof creditor. He stated that in May, 1867, he obtained a loan from Mr Adams of £3OO, at 10 per cent; had not put the debt due to Adams in his schedule as a liability as he considered he was released therefrom by deed. The Court granted the final discharge.

RE JAMES RANALD MARTIN. Bankrupt applied for the final discharge. Mr Slater and Mr Joynt appeared for proved creditors. Bankrupt was examined by Mr Joynt, as to certain transactions he had had with a creditor, Mr Funstone, and as to certain orders which he had given to Mr Funstone on the Collector of Customs for payment of a pension of which bankrupt was in the receipt. Had not given orders to other parties for the quarter’s pension. He gave the order to Mr Funstone. Had asked Mr Funstone to assist him with an accommodation bill. Bankrupt said that he had been threatened by Mr J. S, White, one of his creditors, because he had put him in the schedule. Mr Funstone also threatened him by a moneylender named Evans. Mr Funstone, examined by Mr Joynt, stated that it was on the strength of statements made by bankrupt that he gave bankrupt credit to the extent of £52. The witness was also examined as to his transactions with bankrupt, whom he stated had asked him for an accommodation bill, and also if he could recommend him to a moneylender. The case was adjourned until the 6th December for the evidence of the Collector of Customs, and the teller of the Bank of New Zealand. RE FRASER AND BROWN. This case was adjourned to 6th December, for the attendance and examination of witnesses. The Court then rose.