CLAIM FOR £500 DAMGES.

Wairarapa Daily Times, Volume XVI, Issue 4989, 30 March 1895, Page 2

CLAIM FOR £SOO DAMGES.

ALLEGED MALICIOUS PROSECDTION.

F. HOPE V. J. H. GREVILLE. The above case, brought by plaintiff (Frederick Hope) againsMflg H. Greville, the defendant, in whicli he claimed £SOO damages against the defendant for malicious prosecution, was heard in the District Court before Mr District Judge Martin, and the following jury—Messrs R. J. Harcombe, H, Hewatt, Alex, Grant ' and T. B. Mitchell, Messrs W. Tosswill and 'C. A. Pownall appeared for the plaintiff, and Mr W. B, Edwards for the defendant. Mr Tosswill, after stating the facts of the case, called— W. J. Reeves, Clerk of Court at Pahiatua, who certified to the previous information laid by Greville the then plaintiff, against Hope the defendant, also the warrant!? for the arrest of the defendant on the charge of cattle stealing, wbiuh documents wore then handed into court. On the 19th of January the case was called when dofoudantwas remanded on bail until the 26th of February, when the case was noo allowed to come on, as Constable Cooper was debarred from prosecuting, had not signed the documents, jßh' there was no appearance of Mr Greville, when called, the Justices dismissed tho information, Subsequently Mr Greville asked witness for the necessary documents with with which to issue a fresh warrant against him. Heard no tnoro of the matter after Mr Greville sa : d lie would not issue a warrant as the : Justices would not allow the constable to prosecute, but would see a solicitor in regard to the matter. ■ By Mr Edwavds: Believed it was . a custom throughout the Colony for ; the police to prosecuto in an indiet- . able case where a private person . had signed the documents in the proceedings. The caso did not fall . through owing to tho want of suffi- [ cient evidenco on tho pait of the i prosecution, but through the conj stable being prevented from appear- > ing for the plaintiff, who was not . present at the time. Angus Greville, son of the defendj ant, living at Tiraumea, near Palliai toa, said ho remembered going to • Mr Macloskey's ofiice in Pahiafaa , along with his brother. It wtgpfn behalf of himself that lie went in to . see about the calf, at the solicitor's i office along with his brother, who ut was also interested in the affair, The calf belonged to his father.

Witness and his brother had a working interest in the place, but not in the stock. Some of the stock shown "f at Woodville Show was entered in the name of Greville Bros., and one beast in his brother Fred's name. Tlio calf alleged to havo been stolen was a red and white bull calf very quiet. The other calf was a white one and very wild. It was not likely that one could be mistaken for tho 4 other. William Hull, settler, living on the Tiraumea River, said ho arranged in DecemberlastforHopeto take three calves to the Woodville sale. One, a white calf, was born on Mr King's • place.Tlieanimalwasrunningwithita mother ou Bait's place for about a A month, It was born in June, After y Hope came back ho told witnessihe white calf had been lost. SBtquently agreed to take 25s from Hope for his chance of recovering the lost calf. Hope was driving a mob of calves atthetime,and pointed out a white calf as tho one. Witness said he did not know his calf very well, and thought it would be bigger, Hope said lie had picked it up near Grevilles'. Was satisfied that the calf belonged to him before he let Mr Hope take it away. About 15th or 16th February saw Mr Greville and his son. Mr Greville stopped witness and asked if he had sold ) Hope a calf, Witness said he had done so. Mr Greville said the calf belonged to him. Witness was astorislied, and said if so tho affair was a mistake. Greville said the calf was a valuable one, and Mr Hope would have to pay. Witness ' said he felt sure Hope would do so. / ' Clreyille further stated that the calf was worth £2O. A Mrs Cameron. , wished to exchange a bull calf with ( witness for a heifer calf. The yalue of witness' calf was about 10s. ! By Mr Edwards; Had forgotten , exactly what took place betjfe«n himself and Callagan regardinjpe "1 ( calf. Thought about the middle of j January, Callaghan told him to take , the calf away from his (Callaghan's) ' property. Did not understand how the calf got so quiet, Could not say k that Mrs Hull had said she did not r think the calf was that belonging to witness. Believed his son said some- j thing about the calf not being his. At first, they all thought the calf was not theirs, and Hope ridiculed the idea of their not knowing their own calf, and from what Hope had said, ho was porsuaded that the calf j was his own. He had seen the ! calves now at the Court, and could , see that the red marked one tras not 1 , his. Ho declined to swear that.tUo white calf was that he sold to Hope. 1 Frederick Hope, the plaintiff, Baid , he had 20G acres atNorth Tiraumea, j and lincl been living on his farm for nine years. He had been in the I district for 17 years. On the fifth of December last, he took away three f I calves to the sale at Woodville, for ; : Hull, along with six of his own, ; , About thirty chains from Hull's, one j_ ' calf got away into the bush, but it Hwas not tho one in this sJftje. j Another went into Mr CallagaSn'e, ' so that he only got one to Woodville, f The calf ho lost, was white, with slight marking, a bull calf, and _ no earmark or brand. He only had [ the ca'.ves for a short time in his s possession before - they got away. ' s Owing to its being late in the day, i be did not stay to get it out, A mail named Harris, was with him, and r went into Callaghan's paddock, but , witness told him not to wait. On the 10th of December, witness \vent I I to Callaghan's place, to see about r the calf, as:he heard that some ( cattle had been taken out. He saw r a bull calf in the paddock, biit he ( was.not sure that it was the calf he [ had lost. He again saw Callaghan t on tho 20th of December, at Tirau- ; mea, who said the cattle were taken i out of the paddock, and that witness SJ | had better look out for the calf, ' ' a Witness understood Callaghan to say ' that he had not seen the calf. -. On the 27th, witness went Jk. the " place where he lost the c®but , could not find it. On the 30thTanur my ho was taking some cattle from ' Pahiatua, and on the wad he found , ft calf in Bait's paddock, which he f > naturally thought was Hnll's calf. It "■ . was possible for a calf to cross the , river from Callaghan's to Bait's I property, ■ He inquired at Bait's if _ the calf was theirs, and a girl said j that it was not. She said it might - , be Greville's, it had been running • j. about the road for a week. Witness ; replied that lie thought he know j, who the calf belonged to and toek

away with tbo cattle lie was driving. Hull's place was over two miles from Bait's. He took the cattlo on and got home boforo dark, On the way to Hull's, whose place he had to pass, ho decided to purchase the calf if tlioy could come to terms. Witness asked Hull his price. Hull said 30s, iMitness offered 25s,and after a time |Bh price was agreed on, Hull thought tho calf should have heeu a little bigger, but camo to the conclusion that it was his calf which liad been lost, He took away the calf and ear-marked it and cat it, confident that the calf was now bis property, The calf was to run in a paddock with other cattlo on a section that be had occupied for some live mouths. On the 16ch February lie got ; 'a letter and on the 15th he mr.r'arrested in Pahiatua about midday. He was bailed out, and at the end of a week he appeared before Court and the case was dismissed, Mr Grevillo not appearing when callod. Witness saw Greville near tho door of tho Court before tie sittitij;. No other proceedings were takuu against him. Between tbo arrest and tho sitting of tho Court Mr Grevillo did not come near him. He Imd incurred costs on account of the arrest, and felt aggrioved at the charge being laid against him. Plaintiff, cross-examined, said there had never been any unfjtalliuess between himself and (!S|frillo. Did not. suggest that Grevillo had any, spite against witness. Heard of cattlo stealing some years ago. Ho drove the calf about two miles, and from notice he took of it, ho. knew that it was not earmarked or branded, Would not be surprised to learn that it was a white calf. The animals were differently marked, but the difference was not much. Had not come to the conclusion that the white calf was the one lie lost, He could not say tho smallor calf was the one lie took from Bait's, unless he looked at the ear-mark. The calf he drove away from Hull's, was wild. Hull never told witness that Callaghan had sent word that the calf was on the section When he enquired at Bait's, the girl said it might bo Greville's. He replied, "I know whose it was," She did not say it had been there for a fortnight. Tho conversation detailed by counsel, bad not taken place with the girl at Unit's. He found this calf easy to drive, and quiet. He made no enqAy from anyone else in reference time identity or ownership of the calf. Callaghan said lie bad seen a calf on the place, that lie believed to be the calf left by witness. Witness replied, if he could not do him any good be should do him no harm, and to say nothing about it. Had been on good terms with Callaghan, and did not think he would swear fa'sehoods, but witness would not care to rely on him. He owed the 25s still to Hull, but they had tot settled up accounts, The airest had done him considerable damage in respect of his character. He couhl rot swear to either of the calves, and could not now claim them. Mr Mrvphy, J.P., did not come to the hearing of the case, at Pahiatua, at the request of witness. After he heard that the calf was claimed by Greville, he did not go to see him about it. Alexander Eee:e, cont .'actor, of Pahiatua, said he was a J.P., and the information was laid by Mr Greville on Sunday the 17th of lijfernavy. From what Mr Greville Wt said it appeared a case of deliberate theft. Witness also signed the warrant, first asking if the defendant knew whether Hope was at home. The reply was that Hope was in Woodville, and they were afraid he was going to clear out. By Mr Edwards: Mr Greville appeared perfectly siuisfted that a theft had been committed. A good deal of stock bad been stolen in the neighbourhood, and the question was a serious one.

By Mr Poniinll: The statement by Mr Greville tint ho was afraid Hope might clear out, had induced him to sign the warrant. Constable Charles Cooper, of Paliiatua, gave evidence that on Sunday 17th February, Mr Greville came to him and reported that he had a good case of cattle stealing to report, and stated that a man named Hope had been seen driving away a buli calf belonging to him (Greville), whose sons subsequently found the animal cut and ear-marked at Hopo's place. Greville also stated that he hwl ascertained that the calf was OjHccn from Mr Bait's paddock, and ranted witness to at once arrest Hopeas he might go away to Woodville, Witness declined to arrest Hope without a warrrnt. Greville seemed annoyed or disappointed,aiid witness therefore to save Greville trouble filled up the nccsssary forms merely to oblige him and not officially. Greville brought back the waii-ant, and on the next day arrested the man, who was locked up from noon till eight o'clock, when Hope wa3 let out on bail, mid subsequently romanded for a week, Before the case was called on Mr Greville was present, The Covvt ruled that witness could not appear, but must call Mr Greville. The - case was dismissed.

By Mr Edwards: Had enquired caieiolly into the facts and thought it his duty to make fu' ther enquiry, and after communicating with his superior oflicer in Well ; ngton ho decided to cairy on the prosecution himself. The ruling of the Bench that witness could not appealas prosecutor was the only reason the case did not proceed. There were jfliiitinued complaints in the district losing stock, By Mr Tosswill: It was undoubtedly not at witness' instance that tlio warrant "was issued.

' Gerald Eugene Macloskey, solicitor stated that he wrote a certain • letter produced in Court. This was the case for the plaintiff.

Mr Edwards asked for a nonsuit, as there was an absolute want of any suggestion of malice. Hope had thrown himself open to suspicion. There was nothing t j go to the jury he submitted.

Mr Pownail opposcdon the ground that there was tip. '.mafv;ie case. His Honor slid he wojld reserve his decision as to a nonsu't, and hear endenco for the defence, Mr Edwards for the defence contended there had been reasonable cause for the proceedings taken by Greville,

Michael Callaghan, farmer, gave efidenco that lie tad seen pla'ife'if _.jm December 27tli who told I 'm that '■fflfh'te bell calf, very wild bad woken away from him and gone to witness' property on the Tiranmea Itoad. Subsequently found a cal*on his other propel Ly, but Hope said he did not think it was the one because it was too quiet. On 2(Jfch January told Hull to take h's calf away, es a calf answering Hope's description bad been found on witness' land, On 12th February asked Hope about the calf as he had heard all sorts of things about about it. <' Hope said he would, tell him the truth abofii it'

Mre Hull had given him some calves to drive to the sale and one had got through the wires into Callagban's property. Witness said, " You told me it was a whito bull calf not earmarked or branded."Then said "What kind of a calf did you take from your neighbour's paddock ?" After hesitation Hope said it was a red and whito calf and asked witness not to say anything about it, and if he " could not do any good not to do any harm. Had since seen the calvos now in Masterton. There was no comparison betwean them.

By Mr Pownall: Could not swear positively that the calf now in Masterton was the one he had seen ou his property. Had been a witness in a malicious prosecution case before, Had not seen Mr Grevillo or i his sons before speaking to Hope, and after getting the information had not given it to Mr Greville, who obtained it from another source, Samual Bolton, sheep-farmer resident at Tiraumea, recollected seeing a white calf on Callaghan's property last January, on several occasions. He recognised tho calf outside the Oourt as as the same one, No experienced man should mistake the two calves.

By the Court: Callaghan was generally reputed as a straight-for-ward truthful man. Witness had been resident in tho district about six years,

Annie Ostyke said she remembered Mr Hope taking a calf from Mr Bait's place on January 30th. Hope enquired if Bait was at home. Witness said lie was not. Hope said "There is n strange calf here, I wonder if it belongs to me." Witness, after looking at the animal, said it was not Mr Rait's, but might be M* Greville's, and before taking it he had better go and see. After considering, Hope said it was like the ono lie was after, and ho would chance it and take it away. Was used to cattle and would not mistake one for tho other of tho two calves now in Masterton, Did not know Hope when be took the calf. Thought he was one of Callaghan's men. By Mr Pownall: Had subsequently told Mr Greville of the occurrence when he came to Mr Rait's and asked about it. Did not remember anything that took place between Mr Greville, his sons and Mr Bait with regard to bringing the matter to Court.

By Mr Edwards; Knew Hull's white ca'f. It was the same white calf as now in Masterton. It took fojr men including Hull and his son three days to catch the animal when it got on to Mr Bait's land, It was a ve.y wild calf. By Jlr Pownall: Thought Hull's calf was nine or ten months old, and Greville's about four months old.

Geo, Jackson, farmer of Tiraumea, know a bull calf belonging to Greville, and recognized ii as the smaller of ilio two calves now in Masterton. It \va3 about four mouths old, Saw the calf in charge o? Hope with other cattle on a Wednesday in January. The Court at this stage adjourned until 8 p.m. John Henry Greyille, defendant, called, slated that ho knew the plaintiff, against whom he had 110 ill-feeling. Had lost a calf in December last. About that time there had been a number of troublesome bush fires. This lead witness to believe that the calf had been destroyed during the fives. From information received, he afterwards went to a neighbour named Bait. In fact he had occasion to believe that the r Jf had been stolen. Subsequently he went to the police, who made preparations to sue the present plaintiff. The case was set down as Police v. Hope, and witness was subpcunaed as a witness. Was present when the case was called foi 1 healing. The case was adjourned and subsequently dismissed. Witness thougnt if was a peculiar thing how this calf had been mistaken for another. Had missed cattle at vaiious times, but this was the only case he could sheet home to the offender, "whom he did not know from a cvow." The case was dismissed while witness was away procuring evidence. By Mr Pownall: Bore not the least malice towards the plaintiff in the present action, Did not know that Hope was a settler in the district. Thought under the civcumstances that he had done the proper thing in having him locked up. Did not take further proceedings after the case he had brorght against Hope had been dismissed, as he thought lie had received a lesson, and that the police had a right to follow up proceedings. The case had caused witness a deal of trouble. At first he thought of taking out a warrant, as ho wps very wrath at the time over the affau-. Was actuated entirely by public motives. Although he took out the necessary forms, he neyer had them filled in, us his feelings gradually relaxed, and he thought lio would let t'io matter drop, Denied that he wished the man arrested immediately, The constable, after hearing the facts of 1 the case, made out the necessary 1 papers, as he considered there was a primafmiecm. Did not thinkit necessary to leave the whole matter i in tl j hands of tho police, and there- 1 fore issued the wav.ant himself, I Had liyed on tho section at Tiraumea, for about seven years, Never had occasion to pass the property of the defendant, with whom he would rot associate, evenhe had come in contact with hin, Witness' son Frederick acted on his behalf, and corresponded with and went to seo counsel about the present action. Should bo surprised, if his son acted in any way in connection with this i case without bis (witness 1 ) instructions, Was Ht.'.'pi-j'setl, when lie heard that his son had been to see Mr Macloskpy in reference to the matter. Considered the law should take its course, and the information : already laid by him, against Hope, ■ should bo gone on with. His sons [ told him what they had do.io, and of , the finding of the calf. Thijwnson , tho Sak v 'day evening before the informatior was laid for the alleged [ stealing. Informed his sons, that they had done w.'ong in not cousult- . hg him (witness), as the calf was [ his property. His sors were both minors and had not direct interest in . the property of witness. Laid the 3 information on Sunday, as ho r thought it was a master which ought not to bo delayed. Never learnt from Hull that Hope had taken the calf in mistake for one he had lost. Went to see Hull, and asked him about t'ie calf, and was told that the ca : had been sold to Hope, Was not aware that the man had taken the calf (belonging to witness) under the impression that it was his property, and this in the daytime,'also in the presence of a witness. Was informed that the man Hope was single, and was not aware that he owjed property. Thought the man would clear out of the place, and that was his reason for being so hasty about issuing the warrant for his arrest, which warrant Mr Reese

at fii'st did not care to sign. Bought tho calf from a Mrs .Cameron, a neighbour, giving in exchange a heifer calf.

By Mr Edwards: Did not think anyone could make any mistake about the calf as it was a peculiarly marked one. Witness honestly believed tho calf to have been stolon by Hope when he laid the information.

! By His Honor: Tho first information ho recoived as to tho whereabouts of the calf, (after believing it to havo been destroyed in tho bush fires), was from ono of bis sous, who said ho had seen the calf in one of Hope's paddocks, and it was earmarked. Other neighbours informed him in connection with the calf, one neighbour declaiing that he had seen Hope driving the calf across the riyer. This lead him to take tho proceedings which ho did, At this stage tho Court adjourned until nine o'clock to -day, (Saturday) On the Oourt resuming this morning counsel addressed the jury at length, His Honor submitting tho following issues to the jury (1) Did the defendant honestly believe whon he laid the information that tho plaintiff had stolen the calf.

(2) Was the defendant actuated by any indirect motive in preferring the chanrc. (3) What damages.

Tho jury wero locked up at 11.30 a.m., nnd at 1.30 p.m. returned the following verdict: Ist issue, "No "; 2ml issue," Yes"; damages, £25, Mr Edwards again raised the nonsuit point and failing this, said be would movo for a new trial.

His Honor said that, pending argument on tho nonsuit point, he would not enter up judgment. The nonsuit will be argued at Wellington on a date to bo fixed by counsel, at which Mr Pownall will move for judgment to be entered tip.