SUPREME COURT.

Lyttelton Times, Volume XXVII, Issue 2022, 14 June 1867, Page 3

SUPREME COURT.

< NISI^RIUS/ Thbebdit, Jvm 13. _ (Before his Honor Mr Justice Gresson, and a Commbn Jury.)/ ,!' Mr Wynn WiUiafns for the plamtiff,; aftd MrGamAforthe.defehdaiit. "■ .'"■'" This was ah action, for damages m compensation of an alleged false imprisonment of theplaintiff, by thedefehdaht. ' The declaration- set forth!that the defend-, ant, falsely and maliciously, and without any W%nable ofprobible''CMse i ,jdid chargethe' plaTKiffi wjth hatMg unlawfully assaulted him, and upon such charge procured the issue of a warrant, for apprehending the: plaintiff, and by,virtue of ;the Said warrant to be arrested and imprisonediob as'long time, and afterwards to be brought in custody, before a justice, who dis-; the plaintiff out of custody \ thus; causing injury to the* reputation 'ind pain of jbody and mind to plaintifl|i&cV.? ; ;' '.;':!■•".'•'• The damages' were.laid at.£2oo. The issues were :— j ;' 1. Is the defendant goiltyof the grievances in the declaration alleged ? 2. What damages, if any, it the plaintiff entitled to recover from the defendant in respect of such grievances?,. ;. '.■"'.■.''■.,'.' The jury having been sworn, Mr Williams stated bis' case. ■ He said he did not intend 1 to occupy much: time at present, but would reserve most of what he had to say. The plaintiff was .William. Fleming, a farmer, of Pigeon ' Bay, and the "'George Marshtll, ,?a» &l«o a farmer or the same neighbourhood. The plaintiff and defendant engaged in a quarrel*, and thVjdefendant subsequently charged the plaintiff with an assault, and caused biro to be locked up during a night and part of the, next day. He was prepared to shew that the'/ plaintiff, did not commit an assault on the defendant,' and that the exposure and. imprisonment to which plaintiff had been subjected bad been, maliciously procured 'by the defendant. He called, Frank Guinness,'who deposed that he was Clerk to* the Bench'at tbeßesfdent' Magistrate's court,,at .He remembered the defendant coming to the court in January last. He came 1 and laid an information against WilliaWFlenYuig.' the information resulted in the'issue of a.warrant to arrest theplaintiff. ••:...;; • .' By Mr Garrick.:'/.He fas present when the information was laid. The; defendant was not sworn. He (witness) filled up the information; that was part; of'his duty. The defendant saw him,ife,believed. beforebe'saw. the magistrate on the! subject '■' Defendant; stated to Mm the circumstances which' had bwu^idrjnrinto^^^ filled up the information. He said that plaintiff had told him that if he caught him down

by the bridge, he would do for him, or. words to that effect, and that he desired to have the Slainrtff arrested; as he-fearedirodily- injury com>liira. He was not sure that he used the -word" arrested."- On that statement he prepared, the information for sureties of the peace;; This Information was sworn tobefore' Mr Watson, the magistrate, and he (Mr Wat* son)desiredittbbewithdrawn: Thedefehdarit repeated: the; story ie:had:told-him ■ttfMr Watson, and Mr; Watson dlreoted • him (witness) to draw out the information produced in court/which he did, and defendant Sigtied, it.- As well as liejcould recollect, flitf defendant wished that sbihe steps should* he'taken to prevent plaintiff from doing him an njury.- Plaintiff was at-that time a servant o Mr Gillespie. ,'.'■■■ Re-examined by Mr Williams •• Defendant expressed himself.as being:in fear that' plaintiff would do him an injury, and wanted the. protection of the Court. He said he would like a policeman to accompany'him home. He said that he had been assaulted by plaintiff; and: the first information was withdrawn on that statement. Defendant stated, in substance, that plaintiff had come to his stockyard and threatened him with a stick,. ahd ; said he would do for him if lie caught him by tkVbridge.

Charles Greenwood deposed that he was a constable at Akaroa. Ho knew the plaintiff. On the 9th January he arrested him under a warrant (warrant produced), and lodged him in the lock-up at Akaroa. He was locked up about 6 p.m., and arrested between'2 and 3 o'clock. He was under witness' charger He was looked up till about eleven o'clock of tlie morning of the 10th; and taken thence to the Magistrate's Court. He was discharged from custody about 12 o'clook on the 10th!

William Fleming deposed that he was the plaintiff in this action. Some time ago he lived at Pigeon Bay. On. the. 6th January last he was employed, by James Gillespie. 0n that.day he went for some bullocks to defendant's stockyards, and' defendant said he was to tell his master that he wouktliave to payior the bullocks—meaning pay for trespass, he supposed. He replied that, he had nothing to do with that, and defendant said if he did not pay by fair means he would have to" do it by strong means. Some altercation arose between them. He did not assault the defendant., then or oh .that day. He had a: stick in. his hand to drive the bullocks, and having struck one, it broke, and he threw the'part in his hand at the bullock as it'went out at the gate. Gpwry was present, besides a hoy and a woman,.when this happened." The woman was more than a chain off, and the boy about a chain. He was subsequently arrested, and locked up at Akaroa a night and part of the next day, and then taken before the magistrate, when he was let go about 12 o'clock. •

William Gowry deposed that he was living, in Pigeon Bay some time ago, doing-carpen-ter's work. He knew the parties to this suit. On the 6th or 7th January, last, plaintiff asked.him to go with him.to get sO'me bullocks out'of; defendant's st6ckyard,.and he went. Plaintiff took'down the rails of the yard, and defendant came to him and told him to tell his master that if he did not pay for the bullocks by fair means he would have to do so by strong means.. He saw no assault committed by either parly. Frank Guinness re-examined by Mr Williams. The handed to the court were the depositions-.taken by him from the. defendant, and the warrant which issued thereupon; and also the judgment of the magistrate. 'This was the plaintiff's case. Mr Garrick moved for a nonsuit, on the ground that the warrant was not issued on information-taken on oath; Hecited several ;caies in; support of his motion, and said his learned had misconceived his remedy. TM p^nalty, ; if; any/oiight:to be visitedjofi the^npulders! v .of- the .Resident Magistrate; who ought not to-have issued the warrant under the circumstances; and his act could not'confer a right of action on the plaintiff. The, defendant did not set the law, in motion on' which the plaintiff was arrested;' .: : ■■- '- ; Afr:Wuliams, ih'repjy, ; eaid that bis learrted friend; had begun'; by assigning one faultj in the proceedings at Akaroa, aid then 1 changed his mind and assigned, another; He first objecte'd-to the fact that the information was notitaken on oath, and' that it. couljUnot,confer, a right of action onthe plaitttiff, and heathen'.said that the informa.tiotf Mid-riot warrant the llaw: being iput iito motion'in' the way in which it had been put committed;by the magistrate could absolve the defendant from the cohjequences of' his i information. That information caused the law to be put into motion in the way in which it had been put into motion j it caused the imprisonment of hisclient-by maliciously stating that defendant Had been assaulted by. plaintiff, and he ;was; clearly- liable for the:codsequences" ot-that ; information,, .They>."might rk : the..magistrate, but they' also had a remedy .against' the defendant.

replied at considerable length in rebutment of the view of the case taken by Jfr Williams/and- _. _ . ;. i ; vHisrHonor reserved the point raised by Mr Ganick:'as" to the"alleged : illegality of the issueof the warrant, and allowed the case' to proceed. - /• -~ :r r The defendant was now examined by Mr Garrick, and said that oil the 6th January, the bullocks of plaintiff's master were in'his garden, and his boy. shoved them out; but they were afterwards in the stockyard. Fleming came"up then'with a'Btick'inhis. hand; he took the rails of the stockyard out, and flung them away from him, and he (witness) told him to tell his master to k| p the bullocks out of his garden, for the quieter he wai, the more the plaintiff played on him. Hetold him the !l trespass' must be paid for. Plaintiff implied i ; ; '""All right, two can play across the,! road to a ga'teV.andasked shut up thatgate, as ■ the .bullocks came out there; and he replied, if'big master put up a swing gate i he .would shut it; as it was the boy could not shut it. Plaintiff would have it that the bullocks-came from a part that fhey did not iicome,.; from. .PJalntiff broke his stick in trying to drive the bullocks on the top of him; aud-hethook the broken stick at him. ~He(fitness)-o rdered plaintiff to go abouthii businesß, and'as he went out of the gate ; he slewed' round, and, again shook .the.:.stick;/and said he would get him' down theiroad some of these days. He (witness) replied 'that if he didjiot mind what he was saying he would take him before the magistrate again at Akaroa; and plaintiff said he would 1 take care that the next time 1 , witness took Kim to Akaroa he bad no witnes'ses to take with him; He (witness) went to Akaroa a day or twp,afterwards, and saw' Captain Greaves, and told him, the circumstances. After that he went to the Clerk of the Bench, and told him he wanted to bind plaintiff over to keep the peace; and he (the clerk) wrote out an information to bind binl oyer/ Afterwards, Mr Watsonj the magistrate; came; and Mr Guinnesi, the clerkVtold him they Had bound plaintiff over, and he handed him the book to sign, and he signed it. Wben : he told Mr Watson that plaintiff had shaken a stick in his face, Mr Watson said that was an' assault, and,they would have plaintiff arrested.,. He (witness) replied that he did not know;, much about the law, and he would leave that to him as he would know best. Mr Guinness, said they would make out afresh information, and it was made out, and he (witness) signed it; and a sergeant of police came in and talked with Mr Watson about serving the warrant: He (witness) then left. He did not know what was done further for two days. , Christina Marshall, wholsald she was the sister of, defendan);, corroborated the material points of defendant's evidence,, „ Alexander Marshall) nephew of the defends ant, also corroborated the material points of defendant's evidence, r \ : ! This completed the.casß:for, the defence. '. jtr Garrick. commenced his address to the jury by reading the declaration: or the plaiatifC He said that no attempt hadjieen made to prove that plaintiff bad meteA either in his reputation, his body, or bis mind, '< or fa any. other way. He thought it a pity iuch ! a case should bave conteinto cpurt, asit - wafltpopaltryto occupy the time of the court." 1 The; action,was one for 'malicious prpsecutibn. The essentials for such ah action

were, first, tkat;prosecutlont Bhould'not/have arisen from*'probable or reasonable causers Ms-Honor-would tell-them;- The-cattle- of plaintiff's maßter had trespassed on defendant's garden, and the plaintiff, with a bOunceable attitude, asked defendant why he, did riot keep the rails up V and after plaintiff had shaken his stick, already broken over'the back of a dumb animal, in defendant's' face, and threatened him,.it was reasonable and probable that defendant' should apprehend violence, and that ho Bhould apply to have plaintiff bound over to keep the peace, ,for that was 1 tlie thought in defendant's mind, But, not presuming to be,hjs,own lawyer, he left the proper thing to be donoby the magistrate, who ought to be a man competent to discharge the functions of,, suoh an office, though, in this case, the magistrate's clerk seemed to have been the best judge as to what ought to be done. Defendant had acted prudently, and without any appearance of malice {"but-the magistrate had made a blunder, by issuing a warrant of arrest, instead of a summons, for plaintiff to appear before him. But if the jury believed that the engine of law which had been set in motion had been set in motion by defendant, he should contend that defendant had a reasonable and probable cause for the course he had taken, ;

Mr Williams began his reply by deprecating the effect likely to be produced on the minds of the jury by his learned friend stigmatizing this case as one that was too paltry to be brought before them j and he trusted they would entirely discard such an impression against his client. Any man who had sustained an injury was entitled to come before a jury, and ask for a redress of that wrong j and it was unfair for his learned friend to try in such a manner to prejudice them againstaman who, though humble, believed himself to have been ill-treated, and had :Cdme to ask them to have him righted. As to what his learned friend had said about a mistake by Mr Watson, it was a fact that the information laid by the defendant alleged that; plaintiff had assaulted him, and he asked to' have him arrested. But plaintiff had not committed an assault. The threat he had used was made under a supposition, and did not refer 1 to the present place or time. Nor was the shaking of.the stick at defendant an assault, because there was no intent to assault, as it accompanied the threat he had just referred to; and, besides, plaintiff had positively denied that he did shake a stick all defendant, and his witness corroborated this statement.

His Honor charged the jury, explaining, the law of ,the case, and commenting on the evidence.

The jury retired for about half-an-hour, and then returned a verdict for the plaintiffDamages, one shilling. His Honor, on the application of Mr Williams, certified for costs. The Court then adjourned to'ten o'clock to-day.