1. On the part of Marad Ali, an affidavit of Mr. Pittar, and behalf of Hadjee Jeebun Bux, a joint and several affidavit of Mr. Lealie and Hadjee Jeebun Bux, were filed. To the latter affidavit was annexed an attested copy of the notes of the evidence taken by the Magistrate at the hearing of the charge.
2. Mr. Branson went into the merits of the case, and contended that the defendant had been rightly convicted. [Mr. Jackson.--The notes of the evidence taken before the Magistrate must be taken to be the materials on which the Court is now to decide. See In re Louis 15 B.L.R. Ap. 14. Affidavits cannot be used to supplement that evidence.] There the case had been brought up under Section 147; this is an order calling on us to show cause why it should not be sent up. The notes do not comprise all the evidence taken before the Magistrate. He is not bound to take notes at all. [Pontifex, J.--Is it a case of mischief at all? The wall appears to be a party wall. But even if it had been the complainant's, the defendant's conduct seems to have been trespass, not criminal mischief.]
3. Mr. Evans on the same side.--Mr. Leslie's affidavit mentions evidence which does not appear in the notes of evidence taken by the Magistrate. Where it appears that all the evidence is not before the Court, the Court ought to call for the whole of the evidence, or it might rehear the case.
4. Mr. Jackson submitted that all the materials necessary for decision were before the Court, and that on those materials the conviction ought to be quashed.
5. The Court was of opinion that on the evidence which had come up from the Police Court there was no case for convicting the defendant of mischief: inasmuch as there was no evidence to show that the hole was made in the wall maliciously or for the purpose of annoying the prosecutor. The conviction was therefore ordered to be quashed.
6. Mr. Jackson applied for an order for refund of the fine: but the Court was of opinion it had no power under the section to order repayment of the fine.
7. An application by Mr. Jackson for costs was refused, the Court being of opinion that the defendant was not wholly free from blame in the matter, and that the prosecution did not appear to have been a malicious prosecution.