DISTRICT COURT.

Wairarapa Daily Times, Volume XII, Issue 3986, 11 December 1891, Page 2

DISTRICT COURT.

MASTERTON-THURSDAY,

(Before His Honor District Judge Robinson and a jury of four.) MILLER V- ELDER. At the conclusion of argument in this case, which was very lengthy, His Honour nonsuited the plaintiff on a portion of the claim, viz., .£75, with costs, the facts as to whether or not breaches of covenant had been committed to be tried before a jury after the hearing of an appeal by Mr Morrison on a point raised by counsel for the plaintiff. Mr Morrison said he would like the matter tried before a fresh jury, as one of the jurymen had been taken ill, and he did not agree to the case going on before the three remaining. The question was, when would it suit Hiß Honour? His Honour thought it advisable to let the case stand over until the next sitting of the Court in March. This would give a superior Court an opportunity of deciding whether he (Judge Kobinsou) was right or wrong in his decision on the nonsuit points. The jury was then discharged, and ibe further hearing of the case held oyer till March 16th. m'lennan v. street. This w,as a case in which John M'Lennan, a labourer of Whareama, claimed the sum of £IOO from George Street, also a labourer of Whareama, for defamation or character.

Mr Pownall appeared for the plaintiff, and Mr Beard for the defendant. Mr Pownall explained the circumstances of the case at some length. The two men were, it appears, working together on" the station of Mr Elder. Street lost a sum of money, and suspecting M'Lennan issued a search warrant agninst him. It wus for the jury to decide whether Street had sufficient cause to suspect M'Lennan. The plaintiff was not claiming vindictive damages, neither was he claiming special damages through loss of employment. He was siu,ply seeking to vindicate his character. Constable Collerton, sworn, stated : About the 13th September [ executed a search warrant on John McLennan at the instance of the defendant. My instructions were to search Mr Elder's house, where M'Lennan was living. J searched the loom occupied by M'LeDnan and his wife, but found nothing in the room for which I wan searching. I asked Street if he as satisfied with my search, and he said he was, M'Lennan said he had no objection at all to my searching the place.

By Mr Beard : I received the warrant from Mr Street, at the police station. I did nothing more than search. M'Lcnuan told ma to go on with the seatcb.

John M'Lennan, plaintiff, deposed : I am astalionhand at Mr Elder's at the Wbareama. On September 13th a search warrant was executed on me. 1 told Constable Collerion, after he bad read the warrant, to proceed with the search. At the time of the search I was living in the same room with Street. There were two other persons living in the same room with us. The information was for the recovery of a pocket book containing six £1 notes aud oomo silver. These were not found by the Constable. I never took or stole the articles referred to, aud have never seen them. There is nothing connected with my previous character that Street should suspec me. There was no search executed against the other two men in the room. 1 know of no circumstance which would lead Street to suspect nie of stealing the money. He has given me no reason for having searched my goods. I told Street after the search that I would very likely proceed against him I was very much annoyed at the search. I am ai-eking to re-establish my character by this case. By Mr Beard: There has been money missing from the same room before. I was sleeping in the room on the night of September lltb, and rose at six o'clock in the morning, 1 yoked up my horses, and was away "till nearly twelve o'clock. I left

again at one o'clock and returned at two. During the remainder of the day I did nothing. I did not go into the room in which I siept with Street during the afternoon. Street has a desk in the room, but I have never seen him at it. r cannot say whether ho keeps it locked or open, and have never seen him uso a key. I went to Tenui after being in the room. I noticed nothing on Street's desk or table. 1 wuß not working dnring the afternoon because it w.is raining. By Mr Pownall: During the day when the men are at work the doors are ot locked.

Robert Maunsell, deposed : lam a Justice of the Peace for the Colony of New Zealand. On the 12th of September the defendant came to me and laid an information. I therefore ießued a search wart ant.

This was the ca?o for the plaintiff. For the defence Mr Beard urged that there was no case for the jury. There was no actual damage shown, and his cliont was not responsible for the action of the Magistrate. He therefore claimed a nonsuit. Mr Pownall submitted that it was quite unnecessary to prove special damage, and the warrant had been issued by the Magistrate upon the information laid by the defendant. His Honour reserved his decision till 10.80 next day. FRIDAY. On resuming this morning, Mr Pownall quoted several authorities to show that it was not necessary to prove actual damage in the case. Mr Beard having replied, His Honor refused the nonsuit, holding that it was necessary only to show that the action of the defendant was scandalous. Mr Beard then addressed the jury at considerable length for the defence. George Street, sworn, stated : 1 occupy a room in one of the whares on Elder's station. Prior to September I occupied the room with three other persous. There were two tables in the room. On one of tho tables was my desk, which I kept locked. 1 have frequently used the desk in the presence of M'Lennan. Ou the Toesday night I locked my desk up aud put the key in a match box in the presence or M'Lennan, who looked up to see what I was doing. He was the only person in the whare. No other person has, to my knowledge, seen where I put the key. Ou September the 11th I again used my deals, and left in it my-pocket book containing six pound notes and some silver. I did not again leave the room that night. M'Lennan and two others slept in the room that night. On the following morning I got up about seven o'clock and went to work, On my return at five o'clock I found some books shifted from the top of my writing desk to the table. The desk was unlocked and the pocket book and its contents gone. I made enquiries from M'Lean it anybody had been in the whare. He said there had only been Anderson and M'Lennan besides himself and Warren. M'Lean told me. he heard somebody in my room and shortly afterwards saw M'Lennan come out of it. I afterwards went to Tenui and had a search warrant issued. I went with the constable to execute the warrant. Some money had previously been missed from the whare. I have no malicious feeling towards the defendant.

By Mr Pownall: It was through want of thought 1 did not apologise to Mr M'Lennan when I found the pocket book not in his possession. I have never threatened to file if this action went against me.

A. McLean : lam in the employ of Mr Elder. I occupy a room adjoining ihe room occupied by M'Leunan. On the Saturday in question it was wet and I did not go out. We had dinner about 12 o'clock. Warren and I went to our room. M'Lennan ' came in as if he had couie from the next whare. I heard something moving in the next room. After hearing the noise M'Lennan came to our door. The noise then ceased. I oould not say whether Street's door was open or abut when I went by from dinner. I was in Mr Street's room with M'Lennan and Warreu. 1 remember seeing the books produced on the table, not on the/ desk. I do not remember telling M'Lennan that Street was in by himself. Remember being told of the loss of the money. Cross examined by Mr Pownall: There was nothing unusual in any of us being in the room during lunch hour. I could not Bay positively that M'Lennan was in the room by himself, It was after tea that I heard that the money was lost. The roo ma were open and anyone could go in, Re-examined by Mr Beard: My impression was that M'Lennan bad come out of the room. I

Richard Warrer, deposed : I occupy the same room as last witness. lam a general hand. Ido not remember what I did in the afternoon after oae o'clock. Before that I was in our own room with McLean. McLennan came in but Ido not know where ho cime from. I have neyer mentioned where McLennan came from. I put in the letter to counsel that McLennan came from the next whnre. The letter produced I signed. It was written by McLean. The letter is correct. As far as I know McLennan came from Street's room. After talking a while we all went inco Street's room. I think I noticed the papers produced lying on the table. I heard Mr Street say he had lost tbo money. He was in the next room at the time. I was the other side of the partition and heard him enquire of McLean.

By Mr Pownall: Ido not remember Street making any enquiries of me. Anderson came out of the room with us, but I will not swear that he went away to Tinui. By Mr Beard: The partition is merely scrum covered with paper. Anything said in one place might be heard in the other. I remember hearing Street say he had lost the money. I could have heard more had I been listening. I swear that Street did not say anything to me. He might have spoken of the matter some days af tor in my presence.

McLean, recalled by Mr Pownalh stated : When McLennan spjke to me about the matter 1 am not sure whether or not I mentioned that Anderson was in the room. A'i this stage, the Court adjourned till 2 o'clock.