HAMMOND Y. WAYTE.

Waikato Times, Volume XX, Issue 1652, 6 February 1883, Page 3

HAMMOND Y. WAYTE.

At the re quest of a number of our subscribers wo publish the following report of this case, which was heard at the Supreme Court, Auckland, last week :—: — Mr Allan Win. O'Neill appeared for the plaintiff', and Mr Edwin Hesketh for the defendant. Mr O'Neill opened the case for the plaintiff, and stated that this was an action to lecover the sum of £.")00 damages for a malicious piobccution instituted by the defendant against the plaintiff. The declaration, w Inch had been i cad to the j\ny, stated tluvt the defendant did wiliully and maliciously, and without reasonable or probable cause, swear three informations against the plaintiff, two for obtaining money under false pretences, and one for larceny. The defendant was a stationer carrying on a large business in Auckland, the plaintiff was also a stationer carrying on a small business in Waikato. This case wns an illusr tration of the old story which they had all read in their Bibles of the rich man who had countless flocks and herds, and the poor man who lived near him who had but one solitary ewe lamb, when the rich man arrived after his journey he spared to take of his own flock, but went and stole the poor man's lamb and killed and dressed it for his Kueets. He would briefly address them »lhe facts of the case, as they would be cidated in evidence, showing that the intiff had parted with everything he possessed in the world except wearing apparel for the security of the defendant, under the promise that he would still be allowed to carry on the business which according to the letter of the defendant of the 11th March, 1879, could be redeemed by tho plaintiff in two years' time. The plaintiff after negotiations extending over three months' agreed, and absolutely sold his business both in Hamilton and Cambridge for the sum of £1800, which sum was just sufficient to Say the whole of his liabilities. Imme« lately after the sale the defendant repudiated his agreement as contained in the letter of March 11th, 1879, and in a letter dated June 23rd, 1879, called upon the plaintiff to find a backer for the ret purchase of the business, giving him ' two mouths' to do so. From this time disputes arose between the plaintiff and the defendant, and shortly afterwards the plaintiff after demanding a settlement and release from the defendant, and failing to obtain satisfaction from him, set up a claim for the book debts owing to the estate. It yroiifd be shown "in evidence that /, although the' hobk debts amounted to £570, the plaintiff bad only, collected three accounts, Viz,, James Hume, £2 14l Sd, ou the 4th.

August, 1879 ; James on the 'Bth, April, 1880, £3 19s : and W. F. Mtwligan, in August, 1881, ,£3,165. ( In ouch case the plaintiff had given the parties an indemuity, and also a guarantee that they should be held harmless should the defendant take action against them. The plaintiff had challenged tiie defendant to prove his r,ight to any of the debts that had been collected by him, ■but this the defendant refused to do, and the plaintiff then warned several other debtors to the estate not to pay their accounts to the defendant. At this stage, in December, 1881, the defendant swore three informations against the plaintiff, which were heard before the R.M., at 1 Hamilton. The cases occupied the Court for eight days, and were all dismissed, without the plaintiff being called on to make any defence. The plaintiff had been put to great trouble and expense as well as pain of body and mind, and the jury were.now asked to compensate him for actual loss sustained, as 'well as the injury to his reputation. Thomas Kirk, clerk of the E.M. Court, at Hamilton, produced the depositions of the ease& heard at Hamilton, as well as all the books and documents put in evidence by both parties. H. W. Northcroft, R.M., after demanding and receiving a, guarantee for his expenses, gave formal evidence that the three informations again&t the plaintiff were heard by him, and dismissed. The plaintiff was called and examined at great length, and deposed to all the facts mentioned by the learned counsel for theplaintiff. In ci oss-examination by Mr Hesketh, he stated that he did not bring this action under the idea that Wayte would pay money sooner than go to Court. As a matter of fact he had been offered money, and refused it. The offer was made not by Wayte, but by bis solicitors. Knew that the offer was without prejudice, but the question was asked, and the counsel for the defendant had got his answer. Had been fighting Wayte for more than three years, and intended to do so till he got satisfaction. Messrs J. F. McGuire, W. F. Madigan, and R. McVeagh gave evidence as to the collection of the debt by the plaintiff, and as to the indemnity given by him. Edward Wayte, the defendant, admitted having sworn the three informations alluded to. In doing so, he acted entirely on the advice of his solicitor, Mr W. M. Hay. Mr Hay had never told him that lie (detendant) had grossly misinstructed him. He did not give Mr Hay written instructions to make an application under the Vexatious Indictment Act. Witness had absolute possession under the uowol 1 ot attorney. He never agreed to do more than pay the debts mentioned in the schedule. Plaintiff was in defendant's employment when he collected Hume's account ; knew of it shortly afterwards, but never mentioned it to plaintiff. (The depositions taken at the R. M. Court were here produced and directly contradicted this statement.) The defendant was further examined by Mr O'Neill at great length, and crossexamined by Mr Hesketh as to the business relations between himself and the plaintiff. Mr Hesketh made an eloquent speecli for the defence, speaking for fifty five minutes, dwelling principally upon the forbearance and kindness of the defendant towards the plaintiff, and the abominable impudence of the course pursued by the plaintiff. Mr Allen O'Neill in reply asked the jury to disabuse their minds of tho effects pioduced by the eloquence of the learned gentleman who had just spoken. Had it been any other than a gentleman whose reputation stood so high in the piofe&s>ion, he A\ould have characterised hib illustiations as absurd, and his arguments far-fetched and strained. He intended to recill tlioir minds to tlic facts ot the case, They might dismiss e\eiy thing fiom their minds except tlie evidence of plaintiff and defendant. Who told tho most pro* bablehtoiyV Tho lcai ned gentleman, in a forcible bpcich of tliiity minutes, reviewed the evidence, and a&kcd the jury for a veulict in favour of his client. His Honour, in su.nming up, went at great length into what constituted reasonable and probable cause and wilful malice. The jury must be .satisfied that the defendant acted from spite. Plaintiff had not given ovidence of damage sustained, therefore, if the jury found for him, the damages must be nominal. The Jury retired to consider their verdict at 12 40 p.m., and returned into court at 3.40 p.m., finding for the plaintiff on all the issues, with damages, £100. His Honour said "Gentlemen, your verdict is in the teeth of my express direction, and cannot possibly stand. I am afraid you have put the parties to the expense and trouble of a new trial." : The Foreman said that the majority of. tl\e imy thought the plaintiff entitled to more than nominal danmgoH, Mr O'Neil said the verdict being over 40s would, of course, carry costs. His Honour said when judgment was enteied up he would consider the application.