SUPREME COURT.

Gisborne Standard and Cook County Gazette, Volume III, Issue 423, 1 March 1890, Page 2

SUPREME COURT.

CIVIL BUSINESS. COLEMAN AND CLARK (READ’S TRUSTIES) V. 0. A. BROWN. Claim for partition of a block of land. Mr DeLautour for plaintiff, Mr Finn for defendant. As there was no issue to be tried. His Hanoi’, with the consent of the parties, granted a decree as prayed for, and the Registrar was directed to make the necessary enquiries. The question of costs was reserved for farther consideration. THE BANK OF NEW ZEALAND V. URAHAM, HIT AND BENNETT. Claim £3OO oa a dishonored promissory note ; Mr DeLautonr for plaintiff and Mr Finn for defendants. Thia action arose out of a promissory note which the defendants alleged was given as an accommodation bill on behalf of James Robert Scott, who has since fl ed a petition in bankruptcy. From the evidence it appeared that Graham, Pitt and Bonnett gave a bill which was indorsed by Mrs Scott an her husband's attorney. A few days afterwards Mrs Scott drew on her husband, who was in England with the native football team, for £3OO, and it was alleged that the draft was drawn expressly to pay this bill. The draft was paid in due course, but the proceeds, instead of being appropriated to the discharge of Graham, Pitt and Bennett’s bill, were carried to the current account; Mr Matthews, the manager oi the Bank of New Zealand, contending that the draft had no connection with the promissory note. The bill was renewed on demand being given. Subsequently a demand was made on Graham, Pitt and Bennett for the amount of the demand note, and by their directions the note was dishonored. After evidence was given (including evidence of Mrs Scott taken in Auckland) His Honor reserved his decision until yesterday morning, when he delivered a lengthy judgment, in which the evidence on both sides was carefully reviewed. The judgment was in favor of defendants, the judge being of opinion that the three months’ promissory note, given by defendants for the accommodation of Scott, was given with a view to its discharge by the proceeds of the £3OO draft, and that the bank should have appropriated the proceeds to that purpose. The second promissory note was therefore without consideration, and could not be claimed for in the present action. He would therefore give judgment for defendants on the original claim, with casts on the middle scale and oa the counter claim without,

ALLEGED MALICIOUS PROSECUTION. In the case Johnstone Robincon v. Josiah Tutchen, claim £5OO damages for alleged malicious prosecution, Mr Rees appeared for plaintiff and Mr DeLau’.our for defendant. The esse arose out of an information laid by the defendant against Robinson, foe alleged horse stealing. The plaintiff in thia, case alleged, besides the interference of his liberty and the other expenses he had bean put to, he had lost a favorable engagement into which he was to have aqrere l.

The plaint.ff depose.! that he want to Mr Tutchen, who had previously spoken to him about selling a horse to him. and said all right, he would go over and nave a lo**k at the horse, though ho had no money then and would not ba able to pay for about two months. Believed this was in June. Tutohsn toll him he could have the horse. The horse was driven into the yard and the price of £lO fixed. The horee broke away and they got him into rhe pound yard, Mr Tutchen being there, and Mr Fisher, poundkeepar, assisting. Had possession of the horse from that until he (plaintiff) was arrested. Did not have the horse on condition it was to be returned each night, Tutchen had never asked him again for oossession of the horse. He got a shoe on ths horse, and soma little time after that defendant told him Moore had said there was a mau who would give £l2 for the horse. Witness said he would like to make £2 on his bargain and immediately went to the house indicated, before he had his tea. Subsequently found the man, who would not purchase, and told Mr Tutchen so. Afterwards mentioned to Mr Tutchen that he was going away to seek for permanent work. Had a letter of introduction from Mr Akroyd to some settlers in he Waimata, to whom witness intended ts ipply for wqrk. Mr Tutchen tried to llaauade him from going then, though he said the horse would be strong enough to iarry him. After hearing what Mr Tutchen vild about the rivers had decided to go to the Wairoa distriot where ha knew friends Had been near Wairoa two daya when he was wrested. Was posltlye that he had arranged o purchase the horse from Mr Tutohen, payment to be made in two months. To Mr DeLautour’i Could not remember ■xaotly when he name to Gisborne, but it was ■'rom Napier. Had come before another man lamed Edward Robinson. H»d told Madame OeCosta that his brother and brother's wife vould probably be coming from Napier. Co the best of his belief that was true. Had aken the name of Robinson after he left 4spier because that was his proper name. He lad previously been called Boyle, but that was iot his name. Had rented a house from Mr I’utohon, Could not recollect the time he inught the bores. Had not told Tutchen he vould pay him for the horse when he himself mt paid by Knox, for whom he was working, lad not told Tutchen that hie sister's advice iid caused him to change his trpnd about the lurehase of the horse. Had not paid hip rent *n leaving. Had received his money from Kaox, but had.not told Tutchen nor yet that is was going to Wairoa. Had not paid for he first shoe until some time afterwards, but isd not told Moore to put it down to Tutohen's woount, Kans had seen them when they tvore engeged iu calciiioe tbi hMS> ( hut had

not heard Tutohen tell Kane that he had lent the horse to witness. Did not <hink Tutohen had lent him the horse a week before anything was said about purchasing. On going to Wairoa had given his name as Boyle, because that was the only one he was known by in Napier. Had taken twelve months' engagement under that name.

An argument took place between counsel as to whether it was competent to admit evidence as to character, and Hie H*inor ruled that Mr DiLautour could crosa examine the witness as to his charnoier, but could not bring evidence on that point. Examination continued : Had been committed for trial at Napier on an accusation of stealing money. Had bsen punished in one Police Court. Mr DeLautour having finished, Mr Rees objected to such definite questions being ask id. His Honor pointed out that Mr Raos might re-examine witness. To Mr Rees : Was acquitted in the ease in Napier, the evidence being of the same kind as that given in the present case. Ho had been punished at the Police Court because ha got drunk one night.

John Fisher deposed that Tutchen had told him he had sold the horse to Robinson. This was some time in July. Tutohen was not there when he on one occasion helped Robinson to catch the horse. Mrs Robinson corroborated the evidence as to Tutchen having told plaintiff some one would give him £2 on his bargain for the horse In reply to Mr DeLautour witness said she knew plaintiff was going to look for work, bit she did not know whither. She had told Mr Tutohen that. Did not know where be was until he was arrested. Plaintiff told her he had bought the horse. He said Tutchen had lent it to him once or twice to go to hie work on the K till and afterwinds ssid that he had bought it.

Robert Moore, blacksmith, deposed that on Tutohen asking what he owed witness he mentioned the shoe got by Bobmson. Tutchen said ha would not pay for it, as Robinson had partly purchased tbe horse, but if the latter did no: pay Tutohen himself would. Told Tutchen of a couple nt men who wanted to purchase a horse, and if that one was in they might buy it. Tutchen told him afterwards he had sold the horse for £lO to Robinson, and that the latter had got good value for his money. Robinson subarq iently got tbe iboes removed, and paid for both jobs. Plaintiff had told him ho was going to Napier.

In examination by Mr DeLautour he said he ha l told Mr Tutchen he bad a shoe against him for tbe horse concerned in the case, because Robinson gave him to understand Tutohen owned the horse,

Peter Beed (Mr Moore's assistant) testified that he had heard Tutchen say he had sold the horse to Robinson. On the case being resumed yesterday morn, ing Mr DeLoutour said the defence was in the same position as in the Resident Magistrate’s Court, excepting that they had now heard Robinson’s statement, It would be better for him had he been sileut, as he had bean contradicted by hie own witnesses. His learned friend had to establish malice and the absence of reasonable and proper cause. His Honor said tha real point was who owned the horse when Robertson took it sway, He did not think tbe magistrate had any option but to commit after Tutohen’s positive evidence, Tutohen in the defence ho sat up distinotly denied that he ever sold the horse. Mr DeLautour said the oase he wishe 1 to set up was that the horse was Tutohen’s when it was taken away, aud he would ask to add that to his plea. His Honor said it was already expressed in the statement setting out that the horse wae always Tutohen’s. The defendant then entered the witness box and deposed that in July the plaintiff had become a tenant of his and asked him if he would lend him the oolt, and he said he would he glad for somebody to Hie the horse, as he was not halt broken in. When they drove the horse to tbe pound tn oatoh there was no one there besides plaintiff and defendant. Plaintiff got on the horse and role away. Meeting Peter Kane on tha road, and after asking him for the loan of a rope, ha told Kane be had lent tha horse to Robinson, who was close by at the time. Mr Porter was present on one occasion when Robinson was there and he (witness) told Porter he had lent the horse to plaintiff to ride to his work, and also mentioned that thera was a shoe loose which he told Robinson to get fixed up. When bargaining about the horse he had agreed to a proposal by plaintiff that he should buy the horse for £lO, to be paid when ha got his money from Knox, for whom he was working. Wiian plain tiff got paid he said he would not buy the horse, because what little money was coming from Knox would be wanted to pay tbe grace re' and other bills and also the rent, Plaintiff then said he had a big job at Kaiti. Witness sgid it did not matter; Robiifson could have tha horse to ride—it would not hurt the horse, if it was brought home at night, Robinson enid “ I believe I could buy the horse within two months like a book.” He then promised to pay tbe rent and other moneys so soon as Knox paid him. Kept a rough diary. On 25th July casa came off with Knox. That afternoon saw plaintiff on the horse, which be rode away. The horse did not return, and witness felt uneasy. He went to p'aintiff’s house and saw Edward Bobinson and his wife. From the result of the enquiries be felt that there was something wrong and came to town and saw Mr H. M. Porter. He did not lay information until 31st July, and in tbe meantime made inquiries at the house and everywhere it was possible. He only had one other horse in use—the grey mare. Plaintiff had the loan of that on one occasion, Moore told him a shoe bad been pot on the celt. Told Moore that the least plaintiff could do was to pay for the shoe, as he was ri ling the horse. Nothing was said about purchasing the horse after plaintiff bad said he could not buy the horse Cross examined by Mr Rees : That was bis diary, and he made entries in it within three or four days afterwards. [Extract read, which witness admitted had been made a week afterwards ] He had been defendant in libel actions, and had had judgment given against him. [An entry was then read that plaintiff had agreed to purchase the horse when he received Kaox’a money.] That was made at the time. He believed he entered the first quoted entry at the time. If he had left it he might not have remembered what was said. When be wrote that entry in ink there had already been pencil writing. He would not swear that the entry as to the purchase and the clearing out were not written at the same time.

Here the evidence got slightly mixed, and tbe witness began contradicting himself. On it being put to him that his first statements did not coincide with his later ones, he said it was because he had got confuted by Mr Bees asking about tbe libs! actions that he mode a mistake. His Honor pointed out that tbe evidence was given before the reference to the libel cases. " Well," said the witness, “ I knew what was ooming. Mr Bees likes to get me ia this bog. He tries to make ma nervous.” Mr Raes said it was new for witness to be nervous. Mr Deßaiitour said the witness was looked upon as fair game for everybody. His Honor remarked that it might ba so, but that should not cause him to equivocate, and ho warned Mr Tutohen to be careful as to his evidence. He was Contradicting other witnesses, Cross examination continued i Mr Moore was wrong in his dates. It was about tha 10th July that he saw Moors. He paid Moore ou the 18th July for shoeing mare. He told Moore that plaintiff ought to pay for shoe, because he (witness) thought plaintiff was buying the horse. Hie object in laying the information was to get back the horse. He saw there was something v'roqg dbout ‘ plaintiff ’i people saying he had gone due North, when at the same time ne went due South. He had no ill feeling against plaintiff. Told Moore that he believed the horse had been sold for £lO. He might have told Fisher the horse was sold. Had told Stndd and another man that be had lent the horse. He did not tell thorn he had sold the horse for £lO. That was on the 6th of July. Re examined : Consulted Sergeant Bullen about horse before laying the information. His Honor thought that even if he went to a lawyer it would not have excused him. No doubt on the statement made, the Sergeant would advise him to take proceedings. Peter Kane, bullockdriver, sworn i Beside at North Gisborne, about 10 ot II chains {rom Tutohen’ik Knew the bay cult ia

question. Remember seeing Tn’chen and Robinson with the hay colt. They came riding along to his place. That was soma time in the afternoon. Tutchen said they had been down to the pound yard to catch the horse, which hadn’t been half broken in. He also said he had lent the horse to Robinson to • ride to his work at the “Island.” Tutchen asked foe a rope, Robertson said, it didn’t matter, he would get a rope in town next day. Witness gave the rope. Saw plaintiff once afterwards, riding by on the colt. Gould not say when it was ho heard about this trouble, but it was through Tutchen coming to his place. Cross examined; The horse appeared lively and frisky while Tutohen was speaking to him. H. M. Por'.er gave evidenee to tbe effect that he ha l all along been led to understand by Mr Tutchen that tha plaintiff only bad tha use of tha horse to quiten tbe animal. Counsel for either aide having addreiaed the Bench, In summing up the Judge said thia waa an action for maliciously proareutlag tha plaintiff for horse stealing. The defence justified in the third statement on the ground that the plaintiff practically stole the horse. The point was, did the plaintiff buy tha horse ’ and if eo did he give it back or did he buy the horae without giving it back? and if the latter did the defendant know it? On 3lst Ju y he (d-fenfiant) swore that the horse was his. | His Honor here read over Tutchon’s evidence.] It was quite clear oa defend mt’s statement before the Magiatate that plaintiff had never bought the horse, and on that the Magistrate coaid do nothing but commit him for trial. Unbiassed witnesses had given evidence that defendant had stated he had sold the horae, and the theory was set up that he did sell the horse, but that tbe sale was declared off. Neither plaintiff’s nor defendant’s evidence was satisfactory, and if that of both were pat aside there remained that of Fisher, who was apparently honest, and said distinctly that defendant said he had sold the horae to the plaintiff for £lO. Then there was the evidence of Mary Robinson, who.said ihe heard Tutchen say there was a man downs town who wanted to buy the horse, nod wou'dw plaintiff take £2 on hie bargain ? Next|»me ’ Moore, seemingly a very respectable man, of whom Tutchen was a customer, and to him the defendant had Slid “ that man had purchased the horse.” On another occasion Moore asked Tutohen if he had sold ths horse, and he said the bargain with the others had gone off, but he had sold it to Rshinaoa for £lO. Than came Baid, who gave corroborative evidence. All those witnesses wsra beyond suspicion, and it Tutchon sold Cha horae he must have known, and if he had sold ho could have no reasonable or probable cause tar taking the. steps be had except ta get his property bank. His Honor referred to the diary produced, and said it was a suspicious looking document, end he was under the impression that Che entries with regard to the case, had been mads sines proceedings commenced. The plaintiff’s own conduct was not without suspicion. Ha had not paid, nnr intended perhaps to pay, tor tha horse when ba got Knox’s mqney, and that was nosaihly what was mavjng in Tutohaa’a mind when he took the proceedings, bat it was not for that Robinson had been charged, The change of name bad not hindered the plaintiff’s apprehension, and should not tail against him, and tha plaintiff bad given an explanation, which might be good. As to tha damage sustained. Plaintiff had sworn he hal a good engagement for 12 months which he had lost, and had also, by his arrest, been pq*. tn inaonvenienot anti exoanaa. Nothing ha 1 been proved against the mtn’s character, an i he was a laboring mao, to whom his ohiracterwas valuable, Judgment for £lOO and costs on the lowest scale,