ALLEGED MALICIOUS PROSECUTION.

Evening Post, Volume LXIII, Issue 133, 5 June 1902, Page 5

ALLEGED MALICIOUS PROSECUTION.

AIKEN v. HARCOURT. Tho case for tho plaintiff in the action. Robert Jackson Aiken v. John Bateman Har court — a uluim 01 £516 as damages for alleged malicious prosecution — was concluded in the Supreme Court yesterday ulteniooii. Robert Jackson Aiken, further crossexamined by Mr. Travers, stated that on 7ili February he received a cheque for £5 for petty cash, when there was, according to the cash-book, a credit balance of £3 17s 2d. Another balance made on 18th February showed a credit of £7 Is 7d, and on that day he received another cheque for £5 ior petty cash. That brought the amount up to £12 Is 7d. The body of each of these cheques was in witness's handwriting. The next balance, on 24th February, including £2 received, showed a credit balance of £10 Is 2d. Witness had asked for cheques when there was a credit balance, because that balance would be almost entirely composed of lOU'a. That would be tbe case "on each of the occasions mentioned above on which he had received cheques for £5 euch. Witness cashed the cheque 011 18th February at Mrs. Isaacs' Duke of Edinburgh Hotel. Cashed it there on Ilia way home because it was late when ho got it and the bank was closed. He had been disbursing money on behalf of the firm out of his own pocket all the day. If the book showed that lls was spent that day that would be enough to exhaust what money he might have in his pocket. Though the balance appeared to be £7 Is 7d there was not that amount in actual cash. Mr. Travers might ask some of his friends how that was. There was no IOU of Mr. 8. Hurcourt's when witness left. Witness oertainly considered he was entitled to his wages on leaving without notice. Had never been instructed by defendant or auy one else that the advancing of money from petty cash to employees would not be allowed. Mr. Harcourt always returned in a day or two any moneys advanced to him. Witness was very ill when he left last February. Could not say if it was through drink. Each time he left it was on his own account. Had never sent in any ' claim for commission — it would go in j after the case. He had made quarterly j statements of the business he had tran- j uacted, but had not claimed commission in any of them. It was the rule of the office for Mr. Harcourt to approach the employee in such cases. When he left there was £49 in commission on completed sales and £7 on uncompleted sales owing to him to the end of 1901. To Mr. Jellicoo — Was chargeable when he left with £40 6s, the balance of advances made against his commission. He hod thus nearly drawn all thnt was due to him for commission. With regard to the mistakes in entering from the passbooks into the rough cash-book, it was quite possible that he would make them, as he had bo much else to do. This concluded the examination of the plaintiff, and the case was then adjourn- 1 ed till to-day. TO-DAY'S PROCEEDINGS. On resuming to-day, Mr. Travers asked leave to recall, the plaintiff. Mr. Jellicoe, . however, objected. His Honour said he could not grant the request except by consent, and that was not given. Mr. 'fravers accordingly intimated that he would call the plaintiff as a witness for the defence. He then went on to open his case. To shorten matters, he said, ho would not' outline the evidence to be palled, and he would ask only that the jury would give the whole of the evidence the fullest aud fairest consideration. There would bo a conflict on some of the material facts. It was sufficient for the defence in cases of this kind if the plaintiff failed to show that there was .in absence of reasonable cause for tho defendunt to take the proceedings he did. The counsel for the plaintiff was a past master in one art — that of so directing the testimony when his case was not over-strong as to create a sympathy on the part of the jury. The" wife of plaintiff was not a necessary witness, but she had been brought forward. Mr. Travers asked the jury to banish all idea of sympathy of this kind from their minds and to decide solely upon the actual facts adduced in evidence. If tbe evidence was as he was instructed, he would ask his Honour to direct the jury that they had no function to exercise. His Honour pointed out that if there were disputed facts he would have to put issues to the jury. * ' Mr. Travers concurred, and then called evidence. Ivobort Jackson Aiken said it was not a condition when he rejoined Harcourt and Co. in January, 1901, that he was to remain there for the whole year. If he left in June he would consider himself entitled to 10 per cent, commission on business over £1000. It was the rule of tho office to pay commissions at the end of tho year, less any ■ advances made. He would say that if he lcit in June he would bo entitled to get in December what commission was due. Witness never took tho pledge. There was never any condition imposed that he should. Counsel was asking a. Dig order when ho wanted witness to st.ito the names of those who gave lOU's in October, No- \ ember, and December, 1901, and January, 1902. Ho kept no record of them. Stanton Harcourt gavo a number in that time, but there were none of his in the cash-box when witness left. Ellen Aiken, wife of plaintiff, denied having told Mr. Harcourt that her husband's drinking habits hrtd been his bane through life. John Bateman Harcourt, the defendant, deposed that Aiken joined him in January, 1900, at a salary of £156 d year. The first year ho was there witness had no complaint .to make. In December, 1900, witness gave him a four or five weeks' holiday to Melbourne ou full pay. Immediately after he returned witness noticed from his conduct that he was drinking, and one A&f witness had to ndvise" him to go home and lie down. About that time witness refused to take him back unless he took the pledge. Aiken promised to keep sober, but declined to take the pledge. He said, "I tail bo trusted to remain sober if I am given another trial." He was given another trial. At that time he was getting £200 a year, and if at the end of tho year the commission on business done by him amounted to over £1000, ho was to get 10 per cent. In May, 1901, how- j ever, ho again came to tho office the J worse for drink, and lie left on 27th May. On 14th June appeared an entry in witness's diary, "Mr. Aiken resumed duty and took the pledge with the New Zealand Alliance." That came about becnuso witness refused to have him bsck unless he took the pledge. Aiken returned with a certificate of the New Zealand Alliance indicating that he had taken the nledge. On that witness readmitted him. It had been part of Aiken's duty to keep the general cash, but after February witness took that from him, and he kept only the petty ensh. It was absolutely untrue to sny that it was a regular practice for witness and hia foii to borrow from the petty cash. Witness told Aiken about June last thnt under no circumstances was he to advance money to clerks out of the petty cash. Witness himself only

chew fioin it for budUUi^ cxpwitti. Was alraid theie was hol a gnat cuuck 04 tho petty cash. Believed he told 1119 other clerks a.-> v.ell u& Aiken that theie; Wiws to be no hoi rotting out of petty, cash. Aiken absolutely ielt witness's employ iv October last, and his place? was filled. He returned in DucemLtr, and did not take chaige of the petty cash till 24th December. WneiievtrAiken required petty cash he filled in a cheque, and either witness or his sonsigned it. Aiken was absent from business from 11th to 15th Februaiy, and returned on the 17th. Then he same back and stayed till the 25th. On that day he came down suffering from drink, and witness, placing his hund on Aiken' s shoulder, said, "Aiken, you are not fit for work. Go home and lie down. If you come down to-morrow and ure fit "ior your duties I will take no more notice of it." Aiken, however, never returned. When, ho went away on lltb February he was drunk As he did not return after the 25th, witness considered the engagement broken, as he was to keep Aiken on only if he remained sober. Witness setft for the keys, but the messenger came back without them. Did not wish to open the cash-box till he got Aiken's key, though he had a duplicate. When witness and his son opened tha cash-box he found in it 4s 7d in money, two IOU'S for £3 each from "R.J.A." and other slips representing in all £1 11s, one pound being for the Levin expenses of an employee (Pearce). Mr. Travers — Had Aiken, under the terniß of his engagement, any right to take money out of the petty cash for his own purposes? — Witness — Certainly not ; no right .whatever. The witness went on to refer to the £19 17s item referred to in the crossexamination of plaintiff yesterday. That discrepancy was discovered in Aiken's absence. On the matter being shown to Aiken he admitted having had it, but said he couldn't account for it. Witness drew a cheque against the amount and it was debited to Aiken's account, Aiken signing a receipt. Aiken did not at any time mention that he had taken money from the petty cash for his own use. When he went away on 25th February witness hoped he Avould come back next day, as he seemed to accept the position. In accordance with the wish of plaintiff, witness sent him an account on 7th March. That account did not include anything relative to deficiencies in the petty cash. About that time witness had an interview with plaintiff, and told him that if he was in Wellington on the Monday witness would issue a warrant for his arrest for embezzlement. Plaintiff replied that he would find him any time at 70, Ghuznee-street, and also made the remark that at the same time •witness might take out a warrant for the arrest of bis own son. That made witness angry, and plaintiff made some other remark and left. Witness did not think Aiken ever sold any Wellington hotel business while in witness's employ. Believed only two hotel businesses were sold during the time Aiken was in his employ — neither of them in Wellington. Aiken. therefore could not have spent a lot of money in "shouting" in connection with such sales. It would be distinctly against witness's wish if "shouting" was resorted to by any of his employees in the course of business. It was a condition that Aiken would only get commission if he remained $ober throughout the year. During 1901 witness advanced "him several sums. The first was an advance in January for some furniture that Aiken had obtained. It was originally made against his salary, but at tho cud of the month Aiken asked for his full salary, and as he needed it witness ic. him have it, and allowed the money advanced to run on. The first £10 011 the account was a loan asked for by Aikeu. The item £15 was a month's salary advanced. In February last witness wanted to reduce what was otherwise a, bad deb; , so he credited Aiken with the mouiu's salary that would have been due to him had he completed his term instead of staying away. What witness said to Aiken on 25th February was equivalent to a dismissal, with a conditional umlutaking of re-admission. Could nol say if plaintiff had one year obtained business the net commission of which wns between £\BOO and £2000, but did nut think it would be as much as that. To Mr. Jellicoe — Witness swore the information against Aiken, and instructed Mr. Travers to prepare it. Your counsel yesterday tried to throw the responsibility of this warrant upon the Magistrate. Where was it taken out? — I don't remember. Do you (mean to tell us you don't know where you went to sign it? — I do. If I hadn't seen Mr. R. M." Simpson's name on it now I would not have known. You see it was signed by him? — Yes. I must have gone there, but I have no recollection whatever of it. Did you ask Mr. Simpson for a war-rant?—-I could not say. I presume I must have done. In all probability, Mr. Travers's cleric would do it — he -would go with me. That document shows that you went to Mr. Simpson on the 11th. You have no reason to doubt that? — No. The warrant was signed by Mr. Simpson on the 11th. Did you not on the 10th arrange to go to him the following day for the warrant to be signed? — 1 have no, recollection of it. No recollection -of it? — Not the slightest. It is a fact. I am telling the truth. Didn't you take that warrant to Mr. Simpson on the 11th, and ask hiiu to sign it? — I don't think so. 1 think I must have remembered it had I done so. Do you mean to tell the jury you have no recollection of swearing that? — I do swear it, and I have no recollection of it. Tell me how long you kept that warrant in your pocket beiore you took it to the police? — I never had it in my pocket, and never took it to the police. Wns it not in your possession from the 11th to the 13th*?— I don't think it was in my possession at all. I have no recollection of it being so. I gave instructions to Mr. Travers, and I suppose 1 must have gone to Mr. Simpson's office, but the rest was loft to Mr. Travers. I believe I went to Mr Travers's office to know what action was being taken. Why the warrant had not been issued? — Yes ; I went to the office. You were anxious to see it executed? — Yes ; I suppose so. When you asked Mr. Simpson to sign the warrant, did you explain to him the facts? — I don't know that I did. If it was customary to do so I must have. It wits customary to go to the Stipendiary Magistrate and his clerk, and not to a lawyer and a friend. Why did you not go to the Magistrate?— Mr. Simpson is not a friend of mine. I have never been to his house. He is a business acquaintance. Did you ask Mr. Simpson foe any advice?—l don't think I did. You simply asked him to sign the warrant, and came away with it signed^ — I piesume I did. And you blame Mr. Travers for keep ing the warrant two dayß?— l don't say that I do. You knew where Aiken lived, njul a 011 knew he wns not going away?— Yts. * Why did you not issue a* summons?-- 1 Through my ignorance of the low. 1 went to a solicitor, and put it :n his hands. So you put it all on him ream. D,i you mean to say your solicitor fui.it.pj you to issue a warrant? His Honour remarked that one way was for a constable to dray a man aw ,{y from his home, in the pverence of his

fcvjfe, to the police ttation, and tho other pa* a summons for him to attend the w£h S^ ely ' the witness knew the vv nee betweeu the two courses If ™ !l 8 : I / id llot know - 1 tho "ght It was the ordinary coui-ho in a question W embe/.zlement. Witness was not «, xi' ud never bee " one Mr. Jellicoe : This is not tho first inaormation you luvo hworn?~l can't remember. How many ei.iployees of yours havo you sent to gaolV-Noue, I think. You »re referring, [ .suppose, to a man who "commuted forgery and was arrested. How many men have you sent to gaol? £-1 havo no recolloctiou at all of over paying uu information against a member fof my stall. I will swear I havo never. This is tho tii-ht time I ever laid an information. Why -were you s,u anxious to havo the •*nan arrested V— lt xwin the only , process I know. * Witness was then ci os&-examined us ;o "Aiken's position m iho otlice. Ho haiil iAiken wiw tho assistant of wuiioni'n eon, who represented witifts.s in wiL-aie.-'s.'s a-bsonco. AU business in Aikon'< department was under Stanton Harcourt'j supervision, and ho kept a duplicate key Jpf the cash box. Tho lmkli box wus openfed with the duplicate key. as they cou.d jlnot get Aiken's ke> s. * l\»uld not .say suggested that it should be opened. (Knew that plaintiff kept a lioardingIhouse, but also knew ho u;is not a man ■of property. If witness- had boon tmked *in tho lower Court as to commission, !ho would havo .said tho tamo as ho had Baid to-day. Siiw- in the ledger now produced un i-iitn of nn I.O<U. for £2 by another employee (Orchard). That was lent [by Aiki-n to tho employee against witness's expreNS instruction, and at tho time (witness threatened to debit it to A.ikjn iTlio 1.0. U. in quo lion was in the cm.nJi (box during tho time witness's son Jiud charge of the box. Did not believe his jfion sent Orchard to borrow tho inonoy. heard his son swvar in the lowt>" Court that ho got an employee to bo'rJtow £2 or 30s from tho box. That, rbovrever, was to meet, a sudden bushiest [ emergency j it was not for private vso. fit was customary for his son to get from fp»tty cash the amount of bank exchanges '.Witness did not order Aiken out of WolBington away from wifo and homo, lleiml tthat ho had an offer of a billet at £300 a year iv Melbourne, and believed ifr lie went it would bo for his good, as he •would be better there than dt'iakiog in /Wellington. Had no moro intension cf arresting Aiken at tho timo than of tWling, but wished to sober him up. Did mot know of any intention on the part of Aikon to tart in business in Wellington. Witness's son made a mistake if he said witness told him Aiken was going to start business on his own account here. At 1 p.m. the Court adjourned for luncheon. On resuming after tho luncheon adjournment tbo defendant, undor ffiithp.r cross-examination, said that when Aik.en rtjoined the staff he that, ho Jiad become a teetotaler. Jointly with defendant's ion he took over control of the hotel-broking department of tho business ; but witness authorised no expenditure in refreshing clients. Ho had never «ncouraged that kind of expenditure. (Witness did not deem it imprudent to place Aiken in charge of such a department. Thcf man had taken the pledge, and there was no necessity for hie going outside to do business. It could be done in the office. Part of tho reason for laying the information was that, as Aiken had charged witness's son with theft, i), ■was only right that ho should be mat'.e to provo it. The rest of the reason -w u « that witness felt sure that Aiken took tbo money. Tho petty-cash transition between witness's son nnd Aikeu, previously refetred to, was a perfectly regular and proper transaction, thov.gh not usual. Witness made no comjp\aint to his son when the matter was explained. Mr. Jellicoe— Dirt not your son want tho money to bif.uico his cash when he Wr.<! handing over the cash-boy, to Aiken? Witness — Yon nvust nafc nr^y son. (Left sitting.)