WAIRARAPA DISTRICT COURT.

Wairarapa Age, Volume XXXI, Issue 9178, 29 August 1908, Page 5

WAIRARAPA DISTRICT COURT.

QUARTERLY SESSION. The quarterly session of the Wairarapa District Court opened at Masterton yesterday morning, before His Honor District Judge Haselden. ALLEGED MALICIOUS PROSECUTION.

William Morris, of Masterton, butcher, claimed from John Ogilvy, David Ogilvy ar,d D. R. Ogilvy, trading as Ogilvy and Sons, butchers, of Masterton, the sum of £3OO darnages, on account of a malicious prosecution instituted by the defendants against plaintiff.' The statement of claim set forth that on or about the 16th of May the defendants laid an information against plaintiff accusing him of cattle-stealing, and on the 19th of May the case was heard at the Magistrate's Court at Masterton, and dismissed. Plaintiff alleges that the proceedings were taken without reasonable and prouable cause, and defendants were therefore influenced by malice. Plaintiff claim' ed that his reputation and credit were damaged by the action of defendants, and that he had incurred expenses and loss of time in defending himself, and claimed £3OO as damages. Mr P. L. Hollings appeared for plaintiff, and Mr C. A. Pownall, instructed by Mr D. K. Logan, for defendants. The following composej thd jury: —Tobias Milar (foreman), W. H. Denbv, H. Clarkson and A. C. Williams. Mr Hollings, in opening, said it was essential for him for the success of his case to prove malice in defendants. Plaintiff was in a fairly small way of business at Kuripuni, defendants being in a larger way at Masterton. For some time thefe had been a bitter feeling between the parties over trade matters which had culminated at a meeting of ths Master Butcher's Union, of which plaintiff was chairman, and at which he tabled a motion to reduce the price of meat (which was carried) after having been bitterly opposed by defendants, the motion having bsen put for ward on account of an oulside butcher cutting prices. Later on plaintiff pjrehased a couple of beasts at the [ Masterton pound and took them to the abattoir to be slaughtered, being quite ignorant as to whose they were prior to being taken ' to the pound. The animals turned out to have been defendants, a fact not ascertained until after the cattle were killed. One of the defendants went to plaintiff and demanded an explanation, a full one being given. Defendants were not satisfied with this, and endeavoured unsuccessfully to get the police to institute a prosecution for theft. It would be shown by the evidence that any reasonable person would clearly have understood that no thefts had been committed, and further that defendants had had ample warning that they had no cause to lay such a serious charge to plaintiff. Counsel would submit that the grounds of the information were absolutely unreasonable, and the case was influenced by malice and ill-will. It would be shown by the action of defendants in respect of certain witnesses that suc-h a bitter feeling was shown by them that it wa3 clearly malice inspiring the defendants. Counsel pointed out the heir.ousness of the offence oc cattle-stealing, in illustrating the measure of damages sustained by plaintiff, and further pointed out that as a Borough councillor of ten years' standing, and as a public man in other positions he had received damage to his reputation beyond tha£ which a person in a lesser position might have done. William Morris, plaintiff, deposed to purchasing two "head of cattle at the Masterton pound on March 11th, one being a strawoerry and white cow (aged), and the other a maiden heifer. Witness dmve them home through Villa street and Pownall street, speaking to several persons en route. Witness did not lo>k for brands. The sale was duly advertised and regular. Witness here detailed the steps taken up to the time of the prosecution. A visit was ;-,aid to witness by Ogilvy, senior, and the Sergeant of Police, to whom witness explained what cattle he had killed, describing the two purchased from the pound. Witness said he had seen no brands on the latter animal, and the reply from Ogilvy was "You should have seen them." The Sergeant seemed satisfied, and drove off. Witness said Ogilvy, senior, had latterly appeared very bitter towards him, and was very "cross" over a motion tabled at the meeting of the Master Butchers' Union, that the price ot meat should be Jowered. Witness had heen a resident of the district practically all his life, and was a mem tier of various local bodies. By Mr Pownall: When witness bought the beasts at the pound he did not examine them for brands. Witness did not know that Ogilvy had cattle near the Waingawa riverbed bearing the Riddiford brand, not having passed by this particular paddock shortly before he purchased the cattle from the pound. Witness stated that he saw no brand on the cattle purchased from the pound, although he drove them about three and a-half miles. Witness denied inquiring from Holloway whether he had lost a beast bearing the Riddiford brand. Witness believed that the information was laid out of pure maiice. Joseph George Morris, son of plaintiff, deposed to having assisted hia father to drive the cattle to the abattoir from the pound. The beasts were wild, and were put into separate pens. Witness was occasionally driving behind the cattle and again in front. By Mr Pownall: Witness had been connected with butchering all his life. He affirmed positively that he did not notice any brands on the cattle. Charles Winteringham deposed to seeing plaintiff and his son driving two cattle from the direction of Lincoln road along Pownall street. They corresponded to the description given by plaintiff of the beasts he bought from the pound. Both animals were frisky, and witness did not look hard enough at them to notice any brands. Win. Cameron, blacksmith, also gave evidence as to seeing Morris in charge of the cattle going in the direction of the abattoir. H. E. Gosnell, stock-dealer, said he was in the vicinity of the pound about the date in question, and saw two beasts in the pound, me was

branded with the Riddiford brand, which he thought could be visible a chain away, although somewhat blurred. Henry Hilton, butcher's assistant, employed by Holloway and Son, MastertDn, deposed that his employer had in April last a mob of cattle bearing the Riddiford brand. Witness saw a heifer in the pound with a similar brand, and Holloway then mustered up to see if a beast was lost, but found such was not the case. Henry Billington, farmer, gave evidence to the effect that he saw in the pound two beasts of the description of those lost by Ogilvy. | Joseph Billington, farmer, stated that he mentioned to defendants that he believed the beasts sold in the pound belonged to W. Perry. He supposed this on account of the one with the Riddiford brand being mated with the other, which came from near Penrose. Peter Jorgenson, head butcher at the abattoir, who killed the two cattle brought to the works by plaintiff, deposed that one bore a plainly visible brand, that of the Riddiford estate. In cross-examination he said he thought that if he had to drive the cattle three miles under the circumstances detailed by plaintiff he would have noticed the brand. He described to Ogilvy the beast he had killed "out of the pound" for plaintiff. Witness, in re-examination, said he might notice a brand sooner than the average person as in skinning a beast a deeply-branded hide might be penetrated unless care were taken.

James Shackleton, second slaughterman, gave similar evidence. Nathaniel Miller, Sergeant of Police at Masterton, said that he interrogated Morris, in company with Ogilvy, senior, as to what beasts he h?d sent to the abattoir from the pound. Morris described the colour and general description, but said he did not notice the brand. Witness remarked that it was somewhat strange that plaintiff did not notice the brands. Morris said that the hides had gone to Wellington, and on witness making inquiry he' found that they were in course of treatment and past identification. Witness told defendant J. Ogilvy and his solicitor, that he did not feel justified in going on with a criminal prosecution. To his Honor: He did not feel justified in laying an information until the police themselves had made a thorough investigation. By Mr Pownall: Witness was of the opinion that Ogilvy firmly belnved that his impression regarding Miyrris was correct —that the animal had been stolen. He did not think that defendant was actuates by bias. Ogilvy's impression was that the beast slaughtered at the abattoir was not the one brought from the pound. Jan. s Andrew Donald, farmer, said that Ogilvy, senior, and his elder r"n visited him prior to the prosecu-ion, with the object of ascertaining what animals witness had sold to Mnrris. They remarked that they were suspicious that plaintiff had stolen ne of their beasts. They admitted t -it they had missed nothing befon. Later on witness rang, up Ogilv on the telephone, and warned hi in to be careful regarding what he might propose to do respecting Morris, but the reply was to the effect that there would be a prosecution in the morning. By Mr Pownall: Witness had known Oglivys ever since he had been in Masterton, and was satisfied in his own mind that Ogilvy senior, at least believed that he was justified in accusing Morris of the charge of theft. This conclu-led plaintiff's case. Mr Pownall admitted all formal matters, and in his opening address said he felt bound to move for a nonsuit on the ground that no evidence to show malice had been adduced. The only evidnnce which might tend in that direction was in reference to the Butchers' Union business, and that of one witness who thought some bias was shown. But malice in fact had needed much stronger evidence to support it. There was the evidence of witnesses, including the Sergeant, who said they firmly believed that no malicious spirit animated defendants.

His Honor said, in reference to the law on what constituted malice in fact, that it was so wide that counsel could not state it categorically. It would be inconvenient at that period to enter into'a discussion on points for a nonsuit. Counsel concurred, and formally opened his case. If it was shown that defendants took all, reasonable precautions in laying the information for cattte-stealinf? then they must get a verdict. No imputation was made against the plaintiff in the present case, and all that defendants now sought tj do was tT establish that they were justified in their action. By evidence it would be shown that so far a." deftendantT were concerned they had exhausted every avi-nue of information open ti them before making the serious charge which was eventually laid against Morris. John Ogilvy, senior, defendant, said that he purchased the cattle on March 7th, and put them into a paddock on the Waingawa river bank, one being found missing on April 13th. Defendant and his sons made inquiries at the abattoir, and at the pound, and from the information gathered he concluded that the animal had been stolen. Witness also interrogated the ranger, the Sergeant of Police, the two Billingtons, the facts gathered from them assisting to confirm his belief that Morris had stolen it. Previous to this no illfeeling existed on the part of witness towards plaintiff. By Mr Boilings: Witness had inquired from Parry if he bad lost a beast, and found that he had not. It had not occurred ti witness that because Billington might have seen the animals in Perry's paddock he had thought they were Perry's. By His Honor: It was on Mr Logan's advice that the prosecution was taken. Mr Hollings interpolated that counsel's opinion was not admissable as evidence, but llis Honor said the fact that the advice was given was irrelevant, but the value of the advice in relieving defendant from the responsibility of disproving malicious intent was another matter. Donald R. Ogilvy, son of the previous witness, and co-defendant, detailed the facts of a beast having been lost, with the Riddiford brand. Other purely formal evidence was tendered by witness. David Ogilvy, another son and codefendant, gave evidence corroborat-

ive of the two previous witnesses. He said that the Riddiford brand was of such dimensions that it would be hard to make it blur in applying it. Witness declared he honestly believed that when the information was laid that plaintiff had stolen the beast. By Mr Hollings: Why witness could not accept the statement that the beast killed at the abattoir for Morris was the one bought from the pound was because the descrip'ions by various persons did not conespond. It did not occur to witness that' to complete a case against Morris it would be necessary to prove that an exchange had been effected on the way to the pound. Witness admitted that on the evidence adduced so far he did not think that there were sufficient grounds to I\y an information. Witness denial that the witness Donald warned him to 'be careful about taking proceedings against Morris, and also that he said "there wouldbe an arrest made in the morning." Witness averred that it was on the request of Sergeant Miller that he interviewed Donald at all. The relations between plaintiff and witness had always been of a;i amicable nature. Wm. A. A. Davidson, Borough and County Ranger, deposed that the animal he drove to the pound with the aged strawberry cow previously referred to was a red roan cow, and could not be mistaken for a maiden heifer. There was no ear-mark whatever. Witness saw these animals sold to plaintiff; witness was positive they were the same beasts. If plaintiff killed a Riddifurd branded heifer at the abattoir it was certainly not one of the two animals sold at the pound that day. Witness knew the brand very well, as he had made it as a blacksmith. - *• By Mr Hollings; - Witness did not usually give brands when he knew the owners, and in this case he thought the animals belonged to Narby, another butcher. Witness persisted that the roan animal bore no brands, even though Gosnell and Billington might say it hid an earmark and a brand.

Thomas McKenzie, stock buyer, deposed to selling thirty head of rattle branded with the Riddiford brand. The brand was plainly visible, and could be distinguished two or three chains away. William George Page, drover, who delivered the cattle to defendants for McKenzie, said he thought the brand would be fairly canity visible to anyone driving the animals. Win, Perry, of Penrose, said the fences in which Ogiivy's cattle were enclosed were in good order, and he had neyer known cattle to get over them. Witness saw the two animals wliich were impounded, and was under the impression that the roan animal was one that had a calf.

William P. Simpson, of Opaki, farmer, said he formerly had a property at Taratahi. His fences were burnt in the autumn, and some of his stock got away. While searching alone: the Waingawa river-bed he rounded up two cattle, one dehorned and the other with horns. They corin description to thosa described by previous witnesses as the animals bought by Morris, but witness looked particularly for brands, and ear-marks, and saw none. A few weeks after witness saw two beasts advertised for sale at the pound, and on going to inspect them he found they were the two animals 112 had seen on the river-bed. By Mr Hollings: Witness was at the pound two days before the animals were sold, also on the day of the sale. This was about the second week in March. Why witness noticed particularly there was no ear-mark was because he wai looking for one, as his own cattle bore, ear-marks. John Savage, farmer, brother of the poundkeeper, stated that as his brother's wife was ill he visited him frequently about the time the two cattle in question were impounded. He looked at them ckrefully and saw no brands. This closed the cafe for defendants. Counsel then addressed the jury, and His Honor also went exhaustively through the evidence. After a retirement of exactly an hour the jury returned with a verdict for defendant. Mr Pownall moved for judgment with costs, which was ouly'entered up. The Court adjourned at 11.10 p.m. until 10 o'clock to-day.