SUPREME COURT.

Nelson Evening Mail, Volume XI, Issue 206, 22 August 1876, Page 2

SUPREME COURT.

[Before his Honor Mr Justice Gilubs.] Fow'er v. Macarthur and another. At the close of the plaintiff's c&»e, shortly before fire o'clock yesterday, Mr Conolly submitted that there was no case to go to the J u ry^ sn J ° malice wha tev<;r on the : part of the defendants had been proved. His Honor was of opinion that qnite enough had been adduced to call for a defence Mr Conolly then aldressed tbejury stating that he had hoped that the Judije might have agreed with him that it was unnecessary for him to proceed with the defence, but since he had decided that to some extent Bufficient grounds had been adduced for the allegations of the plaintiff, it would be necessity That he should inflict upou them a sp^ch Vnd addi! tiona leTi'eace. He had in his own mind very litt'e fear indeed as to the reault wh-n the whole case had been pl-cd before them, which would be that they would agree that there was no evidence on which to find a verdict for the plaintiff He would ask them to give their very aerious attention to the matter before them on the groun i that the charge against his clients was as odious as matiy criminal charges. One who could maliciously and without cause bring such a charge against a neighbor as would place him in a felon's do k must be a thoroughly bad mm, far worse than many who commit actual crime. He would, therefore, ask them to look at the matter very seriously indeed He ehouid be able to prove to their entire satisfaction that the defendants had acted in perfect bona fides, that they actually believed the plaintiff to bs guilty of the offence wilh which they charged him. He would prove tint arrangements such as were customary between neighboring runholders had been made between defendants and phintiff to the eff-ct that when each found' any sheep of the other's in his yard he chore them, and accounted to the owner for the fleeces After a time Macarthur found that this was working very unsatisfactorily, and became conunced that he was a large loser, whereupon he intimated to Fowler that the arrangement must cease. What did Fowler do then? He immediately altered his ear mark, which had previously been quite distinct from, and in no way whatever similar to, Macarthur's and registered one which by a single cut' half across the ear would change Maossrthiir'B

into hfsown. Time after time -the defendants; were told that their sheep hid been aean with 1 th?ae apparently alterediearmarks, and ,thenf tn 6j; look the step of employing a mm,': non?inainy N to &<& a 8 boundary shepherd, but 1 who -really wasVudateetive, to watch the., plaintiff. They got further iuformition from him as to what was goiug on, hue would not take any active steps without really good ground. On the occasion when Fowler cut off the head of the sheep, Corbett, the : detective, announced hferreal character, and made the arrest without consulting the defend- 1 ants, who, however^ endorsed" his action. A number of charges were made at the time, but on one only was action taken. On the 22nd of Februwy, of which they had heard, a sheep was found with Macarthur> face brand bat Fowler's ear mark; and lie would prove by, witnesses who were perfectly disinterested, and not like Fowler and his son who seemed to forget and remember exactly what suited them, that the ear mark was quite fresh. Immediately afterwards another sheep was found in exactly the same condition. Now who could they suppose would do this except the P ar ?y .to .whom it was likely to prove » benefit? Accidents frequently occurred in face branding 'but not ' ao in ear marking. It was shown that the Macarthurs had occasionally lace branded other sheep than, their own by mistake, but never, except in one instance,: ear marked any, and thaife vi^h no feloniousjntent. ! He would not weary them by anticipating the "evidence he was about to produce, but would merely say that the witnesses he would call were men to whose evidence they must attach con•iderable Weight. He would prove that when Fowler Was given into custody it Was not done haitily, .but on thoroughly good grounds. By the. evidence of the defendants, ami that which was to be .had at the- time of Fowler!s trial, he would show them what was tha evidence upon which they acted, and he felt that they (the jury) would say, even if Fowler had been charged with an offence he had not committed, first,, that there had been no malice on the part of the defendants, and secondly, that at the time they were convinced they had good cause to believe the charge 'aj' good one: The present jury were not called upon to 'say whether- Fowier was guilty or innocent," that had already been 1 decided. by a jury at Ghristchurch, but what they had to do was to say whether or not the defendants had misconducted themselves as alleged. It would be a dtngerous principle to ett&biish that, because a mau wa» acquitted of a charge preferred against him, after the case had gone through all its stages, owing perhaps to the stupidity of witnesses, or the ability of bis counssl, therefore, he should be able to bring an action against thoss who bad prosecuted him. ■ The Court than adjourned until this morning at ten o'clock. The examination of witnesses for the defence occupied until half-past two, when Me Conolly rose to address tha jury.