SUPREME COURT.

Press, Volume V, Issue 595, 26 September 1864, Page 2

SUPREME COURT.

---CIVIL SITTINGS. n Before Mr. Justice Gresson and a Special Jury. _ Friday, September 23, 186 i. r His Honor took his seat at 10 a.m. when the follow- c ing case was brought on. ' Kl>"G V. DALGETY A>T> OTHEttS. Mr. Slater and Mr. Garrick appeared for plaintiff, « and Mr. Louis for the defendants. This was an t action brought by the plaintiff, Alfred King, against < the defendants, Edmund Simmonds Dalgety, George » Buckler, and James Rattray, for damages to the ex- J tent of £tOOO for false imprisonment. Tho plaintiff ' was the master of the ship Roman Emperor, and had c upon the affidavit of the defendant, George Buckley, "* that he was about to quit the colony, been imprisoned £ for an alleged debt in October 1563. Bail was after- - wards accepted, and the case tried, in which the now 1 defendants were losers. The declaration set forth i that by reason of these premises that tho plaintiff < suffered pain of body and mind, and was prevented i from transacting his "business, and was injured in his < credit, and incurred expense in obtaining his release < from imprisonment to the amount, of £4000, of which « notice waa given ; that the sum of £1000 was by way ] of special damages for expenses incurred in defending the action above mentioned, and in journeys to ' and from Lyttelton and Christchurch, and hotel expenses in these places. Mr. Louis applied to his Honor for leave to have the issues altered, objecting to them on the ground that they were not in accordance with the pleadings. His Honor overruled the objection, and the case •was proceeded with. The first witness called for the plaintiff's case was Christopher Calvert, who produced the affidavit made by the now defendants in the year 1863, together with other papers in reference to the former action. William Sefton Moorhouse, examined by Mr. Garrick : I remember a bill sent by tho plaintiff's attorney to mc in the year 1863 for the expenses of the former trial. I cannot recollect now whether the expenses were taxed or not. Mr. Siater received a cheque from mc for the amount. The cheque might have included many other things. I recollect the verdict of the former trial. I cannot say whether any new trial was moved for or not. I was not concerned in any other. Joshua Cuff, examined by Mr. Garrick: I am managing clerk to Mr. Slater in the common law department. I recollect the action of Dalgety and others v. King. I drew up the cost for defendants, and they were paid without being taxed, and there were other expenses in the action to the amount of about £50. Alexander Back, examined : I am the sheriff, and I produce the receipt for the bail bond. William Bichardson, examined : I am the bailiff. On receiving instructions, I took the plaintiff to tho Lyttelton Gaol, on the 9th of October, 1863, and I left him there. Alfred King, examined: I am the master of the ship Roman Emperor. I left London on the sth of December, 1862, and arrived in Lyttelton in March, 1863. I left London understanding that the agents of the vessel wero Messrs. Peacock and Co. When I arrived in Lyttelton I found that Dalgety, Buckley and Co. had my papers. I went to them, and everything went on in the usual way, they acting as agents for the ship. I gave my papers to them including the registry, and they acted as agents for the vessel foi her disbursement till she was ready for sea. They then told mc that they had no funds. They fonnd all the funds until she was ready for sea, which was about the beginning of June, 1863, or about two months after her arrival. I could not sail without my papers, which they retained, as they told mc that they had no funds, and I could not without my papers obtain money from other on a bottomry bond. The bottomry bond was not taken up. Mr. Buckley told mc that if the disbursement did not exceed £200 that he would take my draft for the amount. When I attempted to speak to Mr. Buckley, he invariably avoided mc. I wanted to impress on him the necessity to keep the ship employed, and he declined. I subsequently had an interview with him at his office. The conversation referred to the necessity of giving up the ship's papers and employing the vessel. When he had heard mc he got up and went out of the office. There were no angry wordß at that time. I could have hypothecated the next earnings had I received the papers, but T could not get the ship's papers. The vessel was laid up and the sails unbent, and stowed below ; her running gear unrove and put below. All the crew that he could persuade to go were dismissed. The vessel has been laid up ever since. No alteration was made at all. On the morning of my arrest I dismissed three of the j crew. I put the affairs of the ship into Messrs. Wyatt and Travers' hands. I communicated with my owner at the time with Mr. Buckley's knowledge. I told him I had written to London for money to I disburse the ship. I saw Mr. Buckley a short time ' previous to my arrest, and he made an appointment to meet mc at Mr. D. Macpherson's office, and I did so. The substance of the conversation was my statement of the facts of the case. I do not recollect his j answer. I told him that he had sent the freight home without letting mc have any money to disburse the ; ship. I met him again that day with Mr. Drummond ' Macpherson, when he threatened to put another master in the ship. I had an interview with Mr. Buckley before the sheriff arrested mc. It was about a week or a fortnight before. It was on Nowich quay ; he then threatened to have mc arrested and put into prison ; I ran after Mr.! Buckley and endeavoured to impress on his mind that the ship ought to be employed, to which he replied that he would not be trifled with. I did not say anything about the ship going to sea beyond what I h;.ve mentioned. It was impossible to go to sea whilst he possessed the papers. I When I saw him in the street afterwards, he told mc he would have mo and the ship too arrested. I recollect the sum that I was sued for; ut the time I was arrested I had an account furnished to mc. I had no inlimation of the proceedings till I was arrested, except on the occasion of the conversation with Mr. Buckley. I thought it wasa piece of colonial bounce. I was somewhere near the Mitre Hotel when I was arrested. I was taken by two bailiffs to Mr. Buckley's office. I asked Mr. Buckley to give them the ship's papers as security for the sum I was arrested for. He first told mo he would not, but called mc back and gave them to mc, and I delivered them to the bailiff Richardson. He did not keep the ship's papers, but returned them to Messrs. Dalgety and Buckley. I was then put in prison. It wa3 a horrid hole. Mr. Louis asked the Court if that was material evidence. The Court ruled that it was, and took a note of Mr. Louis's objection. Examination resumed: There was a room 24 feet by 17 feet, with seventeen people in it. I had to sleep in this room. I did not sleep a wink all the night. I begged the governor of the gaol to put mc into another place, and I was put into the storeroom. The second night I slept with a madman, and a man who had been an old steward of mine. The next day I was bailed out. The ship was not ready for sea apart from the absence of the papers; she could not have gone to sea. Messrs. Dalgety, Buckley and Co. had an office in Lyttelton ; a man of the name of Lcggett had charge of the shipping department. I had some communication, though not often, with him, during the time that the vessel was in the harbor; Mr. Buckley was, I think, very often in Lyttelton abont that time. At the time I was arrested the sails were unbent, and the running rigging unrove. There was only about a third of the crew onboard, and | hardly any provisions. There was not sufficient to go

> sea with ; there was not enough for the pan of' ie crew that I had. I had not on board ie provisions required by Act of Parliament have suffered a great deal in health owing to ths rrest and the treatment received from Mr. Buckle havo been put to great law expenses. I hare __ ursed, iv connection with the former action £175 ncl about £2 12s in addition. My journen etween Christchurch and Lyttelton also cost mc lrge amount. " Cro-s-examined by Mr. Louis : I never told Jfr luckley that I was short of funds. I protested gainst his sending tho freight home. I told him that f the freight was sent Jhome I thought tlvtf tho shin light run short of funds. Mr. Buckley J. eived the freight. Mr. Buckley told mc that he ad letters from the owners. I was not aware that he ownar had drawn upon Messrs. Dalgety, Buckler nd Co. for the amount for freight} afterwards I iccame aware that such drafts had been honored. I lid not know they would have no funds. I did not now what funds remained in Messrs. Dahjetv Juckley and Co.'s hands after the drafts ionored. They drew one sum for £700. I did not orae to an estimated account with Mr. Buckley as to rhat would be requirud for ship's expenses .dmit of her getting away. I n oTer Hr. Buckley that I should want £250 ore* lie balance on freight. I never had any noro advance than £30. All the amounts m his account are correct. I will swear that there wu 10 arrangement between Mr. Buckley and myself to ~ Iraw on the owners. Mr. Garrick objected to a picstion being asked as to the security given for the idvance on the ground that it was irrevelant to the ssuo. I never agreed to give a bill of of exchange on lis owner. 1 handed the ships'paper to one of the derks in their (the defendants) office. To the best of ny belief I handed the papers to the defendant! ,vithout the tin box, and I think that next day I brought the tin box on shore, md put the paper in and then locked the box. I kept the key of tho box ; it has since been broken open, and the register was abstracted and taken to the Custom House. I remember the day I was arrested. It was impossible under the usual circumstances to go to sea without funds. Had I ~ been a dishonest man I could not probably have got to sea. Mr. Buckley pressed mc after for securing on these advances, and told mo he should sue mc for them. I begged and prayed of him to employ th ß ship in the colonial trade, or to load her home. Mr. Buckley offered to load the ship for London if the could get 1800 bales. On that day the "Mermaid came in. I went to Mr. Miles, and he told mc there would be no chance of freighting her home as the - Mermiad had come. I did not agree with Mr, Buckley that if I could raise money by bottomry I would pay past liabilities. By the Jury: It would have taken mc at least a fortnight to have got to sea had I received the funds. By the Judge : I could not have cleared the Customs without my papers. I have to get a shipping . master's certificate that the wages of the last Toyage have been paid, and the truth of the manifest moat be proved. By the Judge : I never sailed without a proper certificate. By the Jury: I cannot say whother the owneri had drawn on Messrs. Dalgety and Co. before the arrival of the ship. I had on board at the time I wai arrested two men, four boyß, and the four mates. The ship was in ballast. She had two anchors down at the time. At this stage of the trial the Court adjourned till to-day at 10 a.m. Saturday, Septembter 24th. His Honor took his seat at 10 a.m., when the above case was continued. At the request of Mr. Louis, with the consent of Mr. Garrick, an alteration was effected in the issues j and the examination of the witnesses for the-defence was then commenced. George Buckley : I am one of the defendants ia this action. I know the plaintiff. I recollect abont the end of March, 1863, tho Roman EmperoTafrfftng in Lyttelton. A few days after her arrival the Bag- - fish mail came. By that mail we received a letter from Messrs. Powell and Co, the owners; and a letter addressed to the master, Mr. King. I produce the letter. (The letter waß read.) I delivered that letter, and he placed in our hands his papers. Ire* ceived by the same mail a letter advising as of the arrangements made, and Btating they had drawn £700 in anticipation on the freight, which was worth dear - £1300. Soon afterwards I went into the matter of the ship's requirements with the master, and we found that £500 or £600 would be required for the disbursement of the ship. Most of the goods would not pay the freight ; consequently the balance coming.Jo _ Capt. King would be about £300, leaving a defic&of £260. I pointed this out to Captain King, aadlie complained of my having accepted the draft &r £700. I explained that as it had come through the bank that without having accepted it we could not have acted as agents ; tho Bank, in fact, would have been the agent. Captain X&r . said he had no funds to meet the deficiency. I told him the owners were strangers to mc { but rather than keep the ship here I would advance him £250 on his giving mc a draft on his owners, I impressed upon him that he should keep the dit> barscinents as low as possible, as I did not wish feL, go above £250; he agreed to this. The ducharging - of the ship continued, and she was ballasted, and'Ott' making up the accounts I found the balance considerably less. Instead of being what I had inugined, it dwindled down io £106. This at the time lefyumin debt £470, instead of £250. When we came to close the accounts, the Captain declined to gwe» draft on his owners, as he had promised. He then declined to make any moro disbursements on tile part of the vessel. I often gave Captain King advice alter this. Somo time, afterwards Captain King promised to pay the liabilities by,a bottomrrto be raised for that purpose, and invited tenders for the <■> loan in the papers. There were no applications AW then, but afterwards there was a party who ttppuett . through Johnstone and Williams, who wae wfllmg*> take the bottomry bond and go homo by the Teasel. I told Captain "King of this, and he afterwards, declined it. There was nothing done then for"lonie little time, but about the month of August, 18H»,ne informed mc that the vessel was very heavUymortgagea, that he had written to the mortgagee, and «^ eo *£' instructions by the October mail to proceed ****** on his voyage. I pressed him to give romeMCunqj or his draft on the owners, for the, amount o*™/.' claim against the ship, but he declined. M~F instructed my soli iter to take steps to stop the Tesse. . I remember swearing an affidavit in Mnne, _ those steps. At the time. I verily believed "«/*- ---was about to quit the colony from his own . a ?f*2£: ' I was not possessed of the ship's registry at •"•"FT'-a that I was aware of. I knew that a box . the ship's papers was in my office, but 1 "Pir- - knowledge of its contents. I was asked to g 1 - the box, alleged by him to contain the re 6™ r f'J£r . was the first time I had been informed of T e being in tho box. lam a merchant of «>nooerau» . mercantile experience. _."'■ Cross-examined by Mr. Garrick . v It is necewto have the ship's papers in order to enter tnejib*in a port, not afterwards. The register is g* l _ produced when she is entered in. I did not aw*** to the shipping business myself, but I had a - clerk to do so. Powell and Co. were the 0* 11 *?," ' the vessel. I should say that about two or tbw» months after her arrival I knew she was " s *"i!*'f That was about the time that she was ba ,-- |H *|? lart !- -knew nothing during the three months previous circumstances of the owners except what the' himself told mc. I understood from him tBM w»j were persous of little credit. ...t.»—" Ec-examined by Mr. Louis : I mean by thei Wgiswj the certificate of the register. Captains usuauy *~r this document themsolves. . ___£___.• By the Court: James Rattray was not in church at the time I signed the affidavit By the Jury : I did not know that the mortgaged at the time I discovered the deficiency. It was before the accounts were cw«~ . that I had the conversation with the P'*!| ,ua T O°S0 °S - subject of the 6tato .of the owners credit. * ■■"■-

„T __, mc a draft, and ho declined. On the day K*JE Itaid Would release him if he would °f to his owners; that I would stop the **** nd herefnsed. I then offered to stop the writ would sign an undertaking not to leave the **£?_Tr Garrick: I told Captain King on the morniJ_{his arrest that the bailiff was coming over him- To the best of my belief I did not to very foolish fellow—why don't you ScJte that bottomry bond? On that occasion I ___* recollect Bog saying he could not sign the jjSarybon" as it would be a fraud on the to a question by the jury, Mr Garrick __*__\__t__d that advances had been made for the " b^^Z^ T ffFnrajijnf of Jj}§ being present at the swearing o! till !JSJ7 I prepared it on instructions from Mr. *£na Simmonds Dalgety eiamined; I am one I was not cognisant of the proikußTßtifTTTl 1 ?* LS««t I was not 0« ABeAting teHM With Mr. ____-* »t the time. I was taking an active part in I believe Mr. llaftAouie-as «ie firm's solicitor. John Sydney I was managing clerk for Tkketv and Co. I remember the time that Captain Tfiner came into connection with our office. I was \__~ cashier at the time. I remember the action Sough* by King against that firm, but was not called •> a witness in it. Edward Williams: lam at present Captain of the nhhj Eoman Emperor. I have been in her since she kAEnjdand. I remember the state of the ship in 1863. I was then chief mate of the «Ll In that time I could have got the ship to aea in 24 hours. That remark applies to the second and third week of October as well. The sails were unbent and below. Part of the running gear was X, unrove and below. There were fifteen on board on October 6. viz., 2 men, 5 officers and 8 Bo— The ship was provisioned for sea on Captain King's scale—pea soup twenty-one times a week. We tree without tea or coffee, and the Captain said if he had lived with us he would have starved like a rat. 'The Captain did not sell any of the spars to provide necessaries for the-ship till some time after. Alfred King, examined by Mr. Garrick: Mr. Buckley did not tell mc that that the bailiff would be over the hill the morning of my arrest, and he did not tell mc that if I would give him a letter to the owners of the ship he would withhold the writ against mc. Mr. Louis, in addressing the jury on behalf of the defendants, called their attention to the difference in the kw previous to the accession of her Majesty and «t the present time. At that time a man could be arrested for debt simply on the assertion of any one who choose to declare his liability, without any other proceedings being required. Now, the law was altered, and before a man could be held to bail, the judge must first be satisfied that there ins a reason for the arrest, and an affidavit must be signed to that effect before the order could be granted. He then went on to show to the jory that the evidence produced proved that the defendants had such reason for arresting Captain King, and maintained that a false oath in making the affidavit, with a knowledge of the falsehood, must be proved before a verdict could be given for the plaintiff. A verdict for the plaintiff would subject his client virtually to a charge of perjury, morally if not legally. A substantial proof that the affidavit had not been sworn with any malicious intent, as set forth in the declaration, was, that it had been made not with the intention of imprisoning the plaintiff, but for the purpose of obtaining an injunction to prevent his vessel leaving the jurisdiction. It would not be sufficient for.them to be satisfied that the affidavit was false, bat they must also be convinced that the tuggestio fold or the suppressio veri must have proceeded from malicious motives. Mr. Qarrick, in addressing the jury for the plaintiff, contended that the evidence had shown that the defendant had been guilty of culpable . negligence in not taking proper measures to ascertain before he made tbe affidavit whether sufficient reasons existed for his believing that the plaintiff was •boot to leave the jurisdiction. The register, without which the ship could not leave the port, had been proved to have been in the defendants' office at tbe ' time; the vessel's sails were unbent, and her running gear unrove ; there were not sufficient provisions on .board for the crew, which only consisted of five men, ircrading the officers and a few boys. These facts, hi contended, were sufficient to prove that, had the defendant taken the precaution of instituting proper enquiries previous to his making the affidavit, he .would have found that the departure of the vessel was impossible. It was not necessary that the defendant's oath should be proved to have been made with a knowledge of its being false, but only that it resulted from not having made proper enquiries with reference to the matter sworn to. His Honor, in summing up, pointed out to the jury the law on the subject; that if they were of opinion that the affidavit was sworn falsely the verdict would be for the plaintiff, but they must be satisBed that the oath was made with the intention of misleading the judge, which was the principal question. His Honor then went through the evidence at length. The jory having retired returned in a short time to ask the Judge whether they could return a verdict to the effect that it was owing to culpable negligence that the affidavit had been sworn to by defendant. . His Honor refused to direct the jury on this point, and having retired again, they returned with a special verdict for the plaintiff, "that the affidavit had been swam falsely, but not with malicious intent by the defendant" His Honor remarked that the verdict would be of very little value, and the jury retired again to reconsider their verdict, but where recalled on Mr. Qarrick citing a case in point, where it had been decided that culpable negligence constituted Bailee. HuHonor then directed the jury accordingly, who returned a verdict for the plaintiff on all the * issues. Damages, £1000. The Court then adjourned IS to-day at 10 a.m.