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Otago Daily Times, Issue 268, 29 October 1862, Page 5

"If any person shall be guilty of any fraudulent ; evasion or attempt at such evasion of the payment of '• any such toll or ferryage, every such person shall, for ! every such offence, forfeit and pay any sum not ex- l ceetliiiii five pounds over and above the amount of j such toll or ferryage, to be recovered by way of summary proceeding, at the suit of such ferryman." The case was arguid at some length by Mr South | and Mr Barton, and ultimately his worship gave judgment for the plaintiff ia the sum of Is 6tl, being the .amount of toll for a horse crossing by the ferry boat; the costs of the court to be divided between the parties. Smith v. Arnold.—Claim for LI. Case adjourned until Wednesday. Wil-on ami another v. Leckey.—Claim for Ll7 10s. Case dismissed. Kennedy v. Moses.—Case dismissed. ' Fnrgie v. Child.—Claim for 17s 6d. Judgment for plaintift. Hinchiife v. Johnson and Another.—L2 12s. Case dismissed. | Fargie and Another v. Downev.—L4 8s lOd. Juxbj ment for plaintiff by default. " ° Tuesday, Oct. 28. (Before A. C. Strode, .Esq , R.M.) Drunkenness—Walter Blake and Thomas M'Lean wereea-jh fined 205., or 48 hours; and Thomas M'Lean was further fined 55., and costs, for using obscene language. Attempt to Commit a Robbery.—James Sullivan was brought up charged with an attempt to commit a robbery at the Newmarket Hotel. It appeared thai Mi\s Wilkes, the landlady, found the prisoner concealed behind the door of her bedroom, and that she at. once seized him, and succeeded in detaining him until she obtained assistance. The prisoner had slept in the house on the preceding night. Sentenced to four months' imprisonment, with hard labor. Figiitino.—Patrick Harnby and Michael Pollock were charged with fighting, in Isaac's Auction Mart, Jetty-street. Mr Barton, who appeared for the piaoners, urge.l that as the place where they were alleged to have been fighting, was not on a street, but on private property, the constable had no right to arrest them. Both prisoners were discharged. Stealing a PoiiTiiA.NTEAU.-S. Gover had been charged by Mr Isaacs with stealing a portmanteau, during the row in which Harnby and Pollock were engaged, but Mr Isaacs who now appeared, said he was satisfied that Gover had no felonous intent, and declined to press the charge. The Bench in dismissing the case, informed Mr Isaacs that he had laid himself: open to serious consequences, by having a man locked up on a charge that he was not prepared to go on with. Dog Stealing. — Samuel Barnes and Henry Groves were charged with stealing a d >g, the property of — Burnett. The prisoners were severally fined L 5 and costs. Charge of Embezzlement.—Timothy Cronin was brought up on the charge of embezzling stores on board thpbrig Gratia, on her passage toDunedin. Mr Weldon explained that the prisoner had been arrested on a charge of embezzlement, but, as it appeared that he was a passenger that charge must fallto the ground. The prisoner was at once discharged. Before leaving the court Cronin enquired what redress he could obtain for being locked up for nothing. The Magistrate—That is a matter upon which I cannot advise you ; you had better see a solicitor. Stealing Trousers.—Alexander Krskine was brought up on the charge of stealing a pair of trousers iroin. Joseph Samuels. It appeared that the prisoner hap gone into the prosecutor's shop as a customer and had taken a pair of trousers, which he refused to pay for or give up. Mr Samuel", who was in Court, declined to prosecute, as he did not believe the prisoner meant to steal the trousers. The prisoner was therefore discharged. He statsd that the trousers were his own ; roperty. Assault.—Alex. Simon was brought up on the charge of violently assaulting his wife. A loaded gun that had been found in the tent was also brought into Court. As i. appeared that Simon had received great provocation, his Worship dismissed the case, repri-I manding the woman, and detaining the gun. | Nuisances.—The Inspector of Nuisances then, re- I ported upon a long list of cases, in most of which the nuisances had been abated. ' The Court then adjourned. , ' ,

SUPREME COURT.—CIVIL BUSINESS Tuesday, 28ih October. (Before IT is Honor, Mr Justice Gresson.) The Judge took bis seat at ten o'clock. ' MALICIOUS PROSECUTION. ..^sskllv Brows.—(Special Jury).—The plain - l|™a™ H aS3eU» s<>«.e;ht to recover damages (setdown :•'-LoUU), from the defendant, for that on the 11th j -ruary he "falsely and maliciously, and without : • ■ .■ reasonable or probable cause," swore an iuforma- ; before the Resident Magistrate in Dunedin. j ging the plaintiff witli stealing certain sheen I :s, a-.d upon that information, obtained warrant, by virtue of which the plaintiff was , .^ rested and imprisoned, and taken before the said I i^f 818?! f\ ,Th, e defendant pleaded the general issue, that he had not acted falsely &c Mr Gillies wasfor the plaintiff] and Mr Howorth, senior, for the defendant. • IlM ta *mi? the ™se, Mr Gillies pointed out to the jury that the mere facts of arrest, &c, could not supply ground of action ; that must come from the maliciousness of the prosecution, tlie want of reasonable oi probable cause for laying the original information, but the jury were at liberty to infer malice, if the defendant failed to show that he had reasonable or probabe cause. If there was nothing in the ea*e ; but a series of uncontested tacts, it was for the Jmke to say whether they amounted to reasonable and probable cause • but where there was doubt or disputewhere the law and the foots were mixed-then the qu ™ °?.? f cause» was strictly one for the iurv i lie following witmsses were cilled Alfred Chethnm Strode said that he was Resident Magistrate, lie produced the information sworn X™? ll\°r V le ns! l Febj ™ry «>y Alexander Brown, thr. defendant. Consequent upon that informationfcdward Ha«seH, the plaintiff, was brought before him (the witness) on the 11th. and a«rain upon the 13th I-eliruary, on remand. He dismissed the charge, believing that there was noprima fade ewe ot stealing the .sheepskins as alleged; ami he told brown that he thought he was not warranted iv bringing sucii a case before the court. . By Mr Hnworth : There was nothing in the ca<=e as it came out at, the Police Court to warrant his sending Hassell for trial, lie knew Mr Musgrove, a magistrate ; but he did not remember whether Mr Muv grove fiat on the bench with him on the 13th February. If Mr Musgrove was o i the bench, he certain ly toolc no part iv the proceeding?. Mr Mus-n-ove did sit on the bench several days, to watdi the°proceedmffii; before assuming oifice at Tokomairiro as Ile•sniejt Magistrate. Edward Hassell, the plaintiff, said that in September last he was keeping a store on the Lindis diggings in theWanaka Lake district. He first went to the luapeka divings on the 29th November. His brother, afc Oau>aru. was a fell monger, and iv the habit ot buying skins. A few days after arriving at luapeKa, he was offereclame skins by Thomas Kells and \Y in M'Murray, both of whom he knew as havirv worked for his brother. Kells was a shoemaker" lucre were 200 skins, more or less, and he gave L3O for thorn. The skins wore lying at the back of Walsh a .store, near an old sheep yard, said to have been Murray and Musgrove's. W.-ien ho bought the skins, thfy were lying- in an unoccupied teat belonging to Keils. His object was. v make money. He kept the skins till the 27th January, when 'he sold them to Patrick Nolan, at is each, tlmv having sweated a good deal, and so deteriorated in value. His original intention was to have s.->nt the skins to his brother at Oamaru, but lie found that the freight whs higher than he Ind expected, lln sold to Xohu precisely the same skins he had bought.. On the 9th February he arrive.l in town, and on the 11th he was apprehended by Detective Tuckwell, under a warrant, and taken before Mr Stole. He (the plaintiff) was in the Commercial Sale Yard, purchasing a horse when he was arrested. Hi? was first, taken to the lock up, and then to the Resident Magistrate's Cwurt. where he was liberated on bail, having bocn in custo ly an hour and a half. On the 13th, the defendant made a charge against him, but the case was dismissed. He (the plaintiff) was put to an expense of L6 iv defending himself; he was detained three or four days in town. The llesilent Magistrate's Court was crowded on the 13th instant. He (the plaintiff) saw several persons present who knew him on the diggings • and his name appeared in the newspapers. By Mr Howorth : He did not know how long Kells and M'Murray had been at the diggings. Kells, he thought, had not bsen there more than a month or fivejweekf, He (the plaintiff) was not surprised to find two men who were digging, in possession of 200 sheepskin?. The men said that they bought the skins from Mr Murray, of Murray and Musgrove; but it was after they made the purchase thai they said they gave only Ll2 for them. He believed the skins to be worth L3O ; but he did not suspect that the men had come dishonestly by them, when they si-.u> they gave but Ll2 for the lot, because men often p ••>d up bargains, and he thought that Murray n .. have had a special reason for the s:. He forgot whether it was 6J. or Is each that a .skedfor taking the skins to Oamaru. He knew .kins were bought and sold at the diggings, but i 1 not know any particular buyer, nor did he ini\ re for any. He sold to Kolau because he wanted o. get down to town, not because he wanted to have the skins out of the way. A gentleman sat with Mr Strode when he (the plaintiff) was in the Magistrate's Court. He did not lunw that that gentleman was Mr Musgrovp, nor had lie ever heard it stated. Mr Gillies : I admit that Mr Musgrove was on the bench, but lie took no part in the case. Patrick Nolan said that in January he was a carrier between Tuapeka and Dunedin. About the end of January he bought a lot of sheepskins, 200, more or less, from the plaintiff, at 2* each. There had been to his knowledge a sheep yard near the tent, in which the skins were, but no sheep bad been killed there for a month. He sold the sheepskins to the defendant; lie called at tho defendant's place on his way to Dunedin and offered the skins. Tlie defendant bought them at 4s each. The price of carting skins from Tuapeka to Dunedin was at that time 9J each. The defendant's place was some nine miles from town. The defendant "pulled him very hard" to know where he got the skins, and he said 'that he young man at Gabriel's from whom he bought, said that he had a brother a fellmonger at Oamaru. to whom he originally meant to send, the skins. The defemlantthena^ked, <;Was his name Hassell?"and lie (the witness) said that it was, adding that Hassell had come to town to buy land at Oamaru.

By Mr Howorth : The defendant said that he had had many skins stolen at the diggings, and after examining this lot, he pointed out a mark which he said was his on one of the skins. The defendant's brother first examined the skins, and tben called the defendant. The-mark was like two cuts of a knife inside the skin, about the neck part. A great proportion of the lot consisted of pieces* not of whole skins. _ Only throe marked whole skins were found, The skins produced bore such a mark as was pointed out to him. He offered to the defendant to leave the mar-ked skins on being paid cost price. The defendant paid him 4s each for 150 skins, that being all the whole skins there were, when he (the > witness) came to count with the plaintiff. The pieces and wool he bought from the plaintiff at 2d per lb. Ho sold the defendant all he got from the plaintiff, and fourteen bullock hides in addition, for L52 14s ; the hides were taken at 6s 6d each. The defendant gave him a cheque for the amount; but when he was going to the bank with ib he met the defendant, quite convenient, in Princesstreet, with a detecive. He was taken by the officer to the Police Station, and as those there thought they'd have to take him into custody, he pulled out a receipt for Lo, which he" had paid to the plaintiff on account of the skins. He was afterwards examined before the magistrate as a witness.

Re-examined : Before the masrktrate two skins were produced. One of them whs like the whole skin now in court; the other before him was only a piece. Thomas Kells, shoemaker, said that he had worked for four or five months at*Oamaru, for Mr Hassell, whom he now knew to be the plaintiff's brother. He and a _ mate named M'Murray bought some sheepskins in a pile from Murray that has the run there, and which were then lying* alongside the sheep-yird, behind Wa'sh's store. They paid Murray Ll2, which he (the witne?s) at .the time considered was too much from the state the skins seemed to be in. About a week afterwards, the plaintiff came up, and he (the witness) asked him if his brother at Oaraaru was still buying skins, and would he buy this lot. The plaintiff said he did not know what it would cost to get them to Tuapeka; but he afterwards agreed to give L3O for the lot. In December, he (Kells) was coming from the diggings, and when near Green Island the defendant stopped him, and spoke. In the course of conversation, he told the defendant that he had bought some skins from Murray; and the defendant said that he had had a letter about them, telling him not to buy, as the skins were bad, and the wool could not be got off. He (the witness) told the defendant that he bought the lot for Ll2, and had sold them to young Hassell (the p'aintift") for L3O. The defendant asked, was Hassell buying skins up there, and he (™c • witness) replied not—only that lot. He added that the defendant might get the skins yet, as Hassell had declared that he would sell to a carrier or drayman, so as to get rid of them, as they had been more bother than profit to him. He had told the defendant that he liad done well at the diggings; aivt when the defendant asked why he was leaving, !;■; nuied that he was going to Melbourne with his > -in-law. Mr Howorth: He and his mate worked at ngs for a week in sorting the lot, and the skins put out upon a line to dry. Afterwards he i,'nt a tent for 14s for the purpose of putting the • _ a<? in. When Murray made the sale, he was in i^<w Q store, beade Walsh's, and his storem,aa and M'Murray were present.

Mr Howorth, in addressing the jury, contended that even u^on the plaintiff's case there was evidence for grave suspicion—abundantly sufficient to supply probable cause for the defendant's believing that the plaintiff had stolen or improperly obtained the skins. They were said to have been sold for one-fourth their value to two obscure men, but the alleged seller had not been produced. Murray and Musgrove were said to have been the sellers through Murray. Mr Musgrove was on the bench when the Resident. Magistrate dismissed the charge against the plaintiff; and the least that the plaintiff ought to hive done now was to produce Murray before the jury, that it might be tested whether he was the seller ot ( skins, some of which were undoubtedly the property of the defendant. He (Mr Howorth) declared that the case was the strongest of-reasonable and probable cause, of which be had ever heard; and that it was one which ought to have been further investigated, the plaintiff being compelled to clear himself of the possession of the skins. If such actions were shown to be maintainable, dishonest Derails would reigD triumpiiant; for losers of property would tear to call possessors of that property to account, lest by a passible failure of justice they might make themselves liable to be sued for extravagant compensation Alexander Srown. the defendant, said that he was a tellimnger, at Green Island. He remembered Nolan offering two loads of skins for sale. He (the uetenuant) began to examine them, and while doiiv so, his brother came down and identified some as be" ongmg to themselves. He picked out three which bore their private mark, and he (tlie defendant) wanted to take them away; but Nolan would not leave them without being paid, and he bought the lot at 4s each. He commenced buying skins at the diggings in Juiy or August previously, his brother bang vie buyer. He bought everything they came across • and he was not aware of any one eke bciug engaged in the trade. The value of skins ci the dig-ings during the period ranged from 2s Gl to 3s 6d eachlliey marked their skins with two cuts across th- inside ot the neck. They had lost skins at the di'«nn°s —a considerable quantity during September. S°The skin and the piece produced each bore their private mark ; the wh.Lj skin was amongst the lot obtained from Noian. In consequence of what he heard from Noiau. he the next morning took out a warraur against the plaintiff; the infbrmatin of Nolan was partly given in the Detective Office. He laid tho infrruntion upon whicn the warrant was issued, because he found that the piamtiff, at the diggings, sold the skins to JMolan, a long way under their value. At tljat time lie had never seen the plaintiff, who was first pointed out to lam by Hutchinson, a postman, after the war rant had been obtained. He had known the plaintit; s brother previously, but had never had dealings with linn. °

By Mr Gillies: He neither knew anyHiiti" for or against Mr Hassell, of Oam iru ; lie knew he whs in business, but nothing more. A few days before t»-e ti-an«iction with Nolan,he (the defendant) bid against Ay Hassell at a land sale—not for more than 500 acres, lie thought. There were only a few section; and he did not know ihat Hassell had previously hid them down, in paddock. He knew that Hassell bought a lam; tract of lane', and paid L3 an acre for some of jt. When he laid the information, lie knew that it was against Hassell's brother ; but he knew nothing at all about young Hassell's character. He did not know whether his own brother ever bought skins from Murray; but he did know that Murray had been slaughtering extensively. The private mark was put upon the skins immediately after delivery. Alter laying the information, he asked Tnckwell \rtiat course lie had better take, and Tuckwellsaid it would be tetter to take out a warrant. He lost from 100 to 200 skins at the divings, raost'y in September ; | but he could only identify three in the lot offered for sale by Nolan. He made no effort to find tbe plaintut before taking out the warrant; but Nolan had told him that the plaintiff had come down to Dunedin to buy land. He had a reason for suspecting that the plaintiff had stolen skins, beyond finding three in Nolan's possession; that reason was the sale at so much below their value, and a further reason was that the skins appeared to have been kept in a lump to disfigure them. He did say oefore the Magistrate that he " had no reason to sus pect the accused of such an offence " as steal-ng the skins; but when the question was put to hint there, he did not fully understand it. The 2s (id to 3s Gi mentioned was for good, sound skins, there beincr more wool -when the higher price was paid. He set no value on the skin itself, so that if the wool w;s sound, a damaged skin would he worth as much as an undamaged one. Wool was quite as good from a sweated skin, if it was not burned, as if it came from an unsweated skin. Re-examined: He knew Kells, but Kells did not call on him during December last, nor did he meet Kells during that month. He met him once, in consequenre of some skins which were sent from Port Chalmers. Kells never spoke to him about having bought skins on the diggings. He was positive that Kells never told him that he had sold skins to young Hassell (the plaintiff). The witness denied all the portions of Kells' evidence as to the alleged interview He was prepared to [have bought 300 acres of the land which Air Hassell, of Oamaru, obtained at auction^ By Mr Gillies: He did not believe, indeed he was satisfied in his own mind, that not a word passed of all tiiat Kells had sworn to as passing between them. By a Juror : The pieces of skin were not bought from Nolan by weight; so many were taken as making a skin. He onsidered that he bought the pieces at about the same rate as the whole skins. John Brown corroborated the main portion of his [ brother's evidence, nnd identified the skin produced ias having been bought and marked by himself at the diggings. He had lost as many as six skins at once • aud he reported the robberies to Major Ooker, but not until after a gool many had been stolen. J By Mr Gillies : He never purchased skins from Murray. When first he began the business ha went to Murray, who said that he was sending all his skins to Dunedin. He marked every skin he bought, as soon as he got it, and he bought daily. He missed skins both from the drying-rails and from the stack, into which they were put after being dried ; he was constantly missing them from September to January. In addition to going to Major Croker, he (the witness) sent a letter to his brother, describing the mark, and saying that if any skins so marked were, met with, they would be stolen, as he was not selling any. He remembered seeing a pile of skins by Murray's stock-yard, but he neither examined them to see if any of the stolen ones were there, nor did he try to buy them. Detective Tuckwell was called ; but Mr Gillies ob • jected that the officer's advice to the defendant could not be evidence, and the objection was held to be good. Mr Howorth summed up, contending that Ihe defjndaut had throughout acted bonafide, and that the jury must conclude that he had reasonable cause for his suspicion of the p'aintiii'. Mr Gillies replied at considerable length. He retorted the question, "Why is not Murray here?' In February last, there was recorded on the depositions that these skins had been sold by Murray. It was not for the plaintiff, standing on his innocence, to bring Murray into Court, for he had called the man from whom lie himself bought ; and if Murray could have been useful to any one it was to the defendant, if he could prove that he did not sell to Kells. The fact of Mr Musgrove sitting on the Bench beside the \ magistrate, was strongly in favor of the plaintiff; for, j himself a magistrate, he could not have sat and heard justice defeated by false statements from Kells. Suppose the defendant did act bona fide ; that was not enough—he must prove that he had reasonable ground for the belief upon which he acted. The Judge, in summing up, said that the jury had i been rightly told that the law was justly jealous of j actions of this nature; for if they were lightly brought they would deter the public from prosecuting (criminals. If the jury concluded thai the defendant | had no reasonable or probable cause for what he did, they would infer malice. If they believe! Kells, they could have very little doubt that the defendant did act causelessly; but the whole question was in their hands. The jury were absent 35 minutes, and then gave a verdict for the plaintiff: damage?, £2'). The Court rose at 20 minutes to six o'clock