SUPREME COURT. CIVIL SITTINGS. (Before Mr Justice Chapman.)

Tuapeka Times, Volume V, Issue 234, 25 July 1872, Page 6

SUPREME COURT. CIVIL SITTINGS. (Before Mr Justice Chapman.)

July 15. MALICIOUS PROSECUTION.

Patrick Cottar v. James Toiirib was an action to recover LSOO damages for malicious prosecution. There was a special couat f>r damages in respect of expenses incurred in defending the proceedings out of which the present action arose, injury to plaintiff's reputation by reason of those proceedings, and on account of their aggravated nature. Mr Macassey appeared for the plaintiff, aud Mr Smith for the defendant. The plaintiff and defendant reside at Cardrona : the former being a sla jghterman, and the latter a sheep farmer, which business plaintiff also carried on. The parties owned about 1200 sheep a-piece. About three years ago, plaintiff instituted civil proceedings against tho defendant, and recovered judgment against him ; and on behalf of the former it was contended that tho result had been to raise ill-boo 1 between them. At the end of 1 :st year defendant informed constable Cummi <i :, stationed at Cardrona, he had lost a considerable number of sheep ; and moreover that he suspected Cottar of having stolen them. This charge was rcnde to the p >lice constable on more than one occasion, and, in order to bring the matter to an issue, the coustab'e recommended that if defendant found any of his sheep in Cottar's po3SO3?ion, he should send for him (the constable) and he would institute the necessary inquiries. At length the charge assumed specific form, and on the 12th January defendant aud his son appeared in Cottar's yard, when r© was en ■gaged mustering and shearing sheep, and said, " I have come to search for stolen sheep." This accusation naturally roused Cottar's anger, and the result was he assaulted Tonic, for which he was subsequently fined. Tho constable .wis sent for, and Tome having selected one out of a flncU of sixty sheep, as being his property, he accused Cottar of having sto'eu it. Torrie's sheep were branded with a circle, and had a horizontal bar across, and had car marks — two slits on the off car. Cottar's brand was T on the near shoulder, with a slit on each ear. The sheep selected by Torrie unmistakably bore Cottar's brand, and each of its ears had a slit on it ; neveri thelcss Torrie persisted in claiming it as his, and it was carried away by him. The cha ge of stealing it, preferred against Cottar, wju3 investigated iv the Warden's Cout at .\r rowtown, and at the investigation, vhich took place before Mr Beetham. Torrie and seven witnesses were examin d. The magistrate dismissed the case without calling on Cottar for any explanation, or examining any of his witnesses, of whom a number were in attendance. For the plaintiff it was alleged the prosecution was a malicious one, and in support of that contention nn extract from the defendant's examination before the Warden at Arrowtown was read, as showing the groundlessness of the charge he made against Cottar: — "Tho sheep p'odu ed ha-s one slit only on the off ear ; my brand is two slits on the off ear. To explain the contradiction, I would say that the second slit might have been cut off by Cottar. I cann t point out any mirk showing where the seiond ear has been cut. The sheep produced does not show any mark of having been cut recently on the car ; but I believe the ear has been recently cut, for the purpose of cutting off the second slit. It is merely my suspicion that the second slit has been cut off. ... I have no hesitation in saying the sheep is mine : at the same tune 1 have only a suspicion tha.t the ear was cut." Mr Smith said he would merely put the defendant in the witness box that the jury might be enabled to judge upon one point, viz., whether or not as had been pointed out by the learned counsel on the other side, the defendant in bringing the charge of sheep stealing against Cottar, had been actuated by a vindictive feeling arising out of a trumpery action for L 6 some three yeara before. Torrie, as would appear, was a very simple minded man, and though be acted possibly on good moral grounds, unfortunately for him he had not sufficient legal evidence to justify him in setting the criminal law in motion It would appear perfectly clear that he was not actuated by any such motive as had bepn attributed to him ; and that he really believed his sheep had bean stolen. He submitted Cottar's reputation could not have suffered to the ex' en tof L3OO as alleged by him. ; and that all that he was entitled to was the reasouable expenses of himself and his witnesses. Torrie would be sufficiently punished for taking the law into his own hands without taking advice, in the first instance, as to whether he had sufficient grounds to go upon, by having to pay the heavy expenses of this action. The defendant, in cross examination, said he still believed Cottar stole his sheep. The jury, after half-an-hour's retrement, found for the plaintiff. Damages, LBO. DETENTION OP TITLE DEKi'S William M'llroy v. James Bee was a claim for damages for the wrongful detention of title deeds. Mr Barton for the plaintiff ; Mr Maca'sey for the defendant. The plaintiff is a quarryman at Oamaru ; and the defendant a storekeeper and commission aj>ent there. Iv 1867, plaintiff purchased from Mr Jackson, manager of the Union Bank at Dunedin, section I, block 80, Oamaru. In March of that year, he placed the section in Mr B°e's hands for saloon commission, handing over to him the Crown grantandconveyance of theproporty. Months elnpsed without anyone offering to purchase the land, and plaintiff intending to come to Dunedin, went to Mr Bee and asked for his. deeds The latter at first said he thought he had returned them to plaintiff, but on the latter denying that he had ever received them back, he promised to institute a search for them in his own premises. A good many conversations took place between the parties, aud in ono of them Bee said he must eitherhave lost the deeds, or they had been taken away, and he promised to get a copy' of the conveyance, but plaintiff said it would be of very little u-:e if he had not a copy <>f the a'so. Ultimately Bee referred him to his lawyer paying that he had a letter from plaintiff which taok the responsibility off the shoulders of himself. Finding negotiation useless, plaintiff brought an action in the Oaroaru District Court to recover possession of the documents, but Mr Bee objecting on the ground that the Court had r.o jurisdiction, the case fell through. Then followed the present action, since the commencement^ which the missing documents had been- found. " ■ ' < Mr Macassey, in addressing the jury for the defence, characterised the action as .an ill-advised proceeding,' and pointed out that under any circumstances plaintiff's right to dispose of the land could have been established by the expenditure of the paltry sum of 18s. Again, if the jury should believe "Eddie's evidence, they would siy there was no ground of complaint against defendant, but against France, if at all, the deeds, so it was alleged, having been handed over to plaintiff. Haying addressed the jury at greater length, Mr Maeassey called John Cuddy, deputy-registrar, and James Anderson, solicitor, who gave evidence as to the expense neceasary to re-establiph — consequent on the loas of the deede— plaintiffs right to dispose of the taw}.

His Honor, in summing up, said the real question for the jury was which of the two versions of the story put forward they believed. M'llroy's account was/ that, having had certain deaiings with Bee, aud thinking he was likely to find him a purchaser for his section, he asked him to endeavor to get him one, which Bee promised to do. Accordingly M'llroy took his title deeds to Bee, and delivered them to him. There could be no doubt that M'llroy had so delivered them, or that, up to the time of the action brought, he had the right to demand possession of them, no matter where found. How the deeds git into France's hands was the question the jury had to try ; there was no evidence as to the exact time, circumstance, or place under which that delivery took place, or as to by whom they were placed in France's hands. But there were two or three possible ways suggested. First of all it might have been when the transaction took place, re ferred to in the evidence of Eddie, when the deeds were passed across Bea's counter, and placed in M'llroy's hands. If, therefore, the jury believed Eddie's evidence, the defeuclant would be entitled to a verdict. If they were satisfied that the deeds wore taken out of Bee's hands and placed in those of M'llroy, it wai of very little consequence how they got hit) Franc j's. Bee, with M'llroy's couscnt, rniqht have handed them over to Fiance to obtain a purchaser, and so divested himself of all responsibility. There was another suggestion, though an improbable one, that inasmuch as M'llroy had been in the scrub all night, and haviug the deeds in his possession, they might have been tumbled out of his pocket, a:id beiug picked up found their way into F. ance's possession. But that was a conflicting chain.of evidence which was not likely to take place. There was Eddie's evidence of having seen M'llroy 24 hours after the transaction over the shop counter somewhat the worse for liquor ; and it was possible that he had deposited the dee Is and forgotten all about it. His direction was that if the jury believed Eddie's evidence their verdict should be for the defendant ; but if on tho other hand they preferred to give effect to the evidence of MTlroy their verdict would be for the plaintiff on the second count, damages one shilling.

The jury retired shortly after twelve o'clock, and were absent till ner.rly two, when it was intimated that eleven of their number had agreed. Ilia Honor said that by the Act of last year he could take a verdict of a majority of a jury, after they had been locked up six hours ; but there was nothing to prevent counsel accepting a verdict of a majority before that tine. Mr Maca^sey having intimated that counsel had agreed to accept the verdict of the majority, the jury were brought in and answered the issues as follows : — Did the defendant detain and does he still detain the title deeds, the property of the plaintiff? Yes. — What damages is plaintiff entitled to recover by reason of such detention. One shilling.