SUPREME COURT

Nelson Evening Mail, Volume XLVII, Issue XLVII, 6 November 1912, Page 6

SUPREME COURT

WEDNESDAY, NOV. 6, 1912. (Before his Honor Mr Justice Chapman.) CIVIL BUSINESS. ALLEGED UNLAWFUL ARREST MD IMPRISONMENT. Victor Laney claimed from Alexander Brown £SOO damages for alleged unlawful arrest and imprisonment. Mr P. B. Atkinson appeared for plaintiff and Mr A. T. Maginnity for defendant. STATEMENT OF CLAIM The statement of claim set out: — (1.) That on the 7th day of June, 1912, at Nelson, defendant maliciously, and without reasonable and probable cause, preferred a charge of false pretences against the plaintiff before a Justice of the Peace, in that plaintiff by means of certain false pretence, knowing the same to be false, did obtain from Brown Bros, of Nelson, watchmakers, a gold watch of the value of £3O by falsely representing that he was then employed by the Public W T orks Department and would pay for the watch by regular monthly instalments, being an indictable offence. The information was signed by Alexander Brown before B. H. Moller, Justice of the Peace; (2.) That defendant caused plaintiff to be arrested on the above charge at Wellington on 7th June, and brought before a Justice of the Peace there and remanded to Nelson, where he was brought before two. Justices of the Peace on the 11th June, 1912, and committed for trial on the said charge; (3.) That the defendant caused the plaintiff to be imprisoned on the said charge from the 7th dav of June, -1912, until the 24th day of "June, 1912 ; (4.) That the defendant prosecuted the plaintiff on the second charge at the sittings of the Supreme •Court at Nelson on June 24th, when the plaintiff was acquitted of the charge ; (5.) By reason of the said charge, arrest, imprisonment, and prosecution plaintiff suffered great pain of mind, and was exposed and injured in his credit and circumstances, and was prevented from following his employment, and incurred expenses, which loss of employment and expenses he claims as special damages: 1912, June 24: To paid Mr Atkinson, solicitor, on account of his costs for defence, £l3 13s 0d; to balance owing on Mr Atkinson's bill of costs, £5 5s ; lore of employment from 7th June, 1912, to the sth July, 1912, four weeks at £3 a week; total expenses in Nelson from 24th June, 1912, to sth July, 1912, £2 ; total £32 18s Od. (6.) The plaintiff claimed £SOO, whicli_ sum was inclu ive of the special damages set out in the foregoing. , STArEMENT OF DEFENCE. In the statement of defence defendant admits that on the 7th June, 1912, he preferred a charge of false pretences against plaintiff, but denies that ne preferred such charge maliciously and without reasonable and probable cause; defendant denies that he caured plaintiff to be arrested as set "out,in-paragraph 2 of the statement of' claim; defendant denies that he caused plaintiff to be imprisoned as set out in paragraph 3; he denies that he prosecuted plaintiff as Set* out in paragraph 4; and he denies that-the plaintiff is entitled to any sum from him for general special damages or otherwise. Mr Atkinson, in his opening remarks, contended that defendant's remedy to recover the watch was by civil process. He called Ernest' Charles Kelling, Clerk of the Court, who produced the depositions of plaintiff made in the Lower Court. EVIDENCE. Victor Laney, a labourer, residing on the Glenhope "railway, stated that he first met defendant in November, 1911, in his s* op in Trafalgar-street. Witness asked, for a watch and chain. Defendant agreed to make witness an eighteen-ca-Tat chain, and witness also agreed to take a watch, on time-payment. Witness was kept waiting for about six months for the chain, and, when witness came for the chain defendent offered to engrave his name on the watch. Several letters had previously passed between the parties in reference to the deaL - '■ To his Honor: There was no arrangement as to the sum to be paid monthly for the watch; defendant had told him to pay what he could afford. The day after he received the watch he left for Wellington. He told defendant at the time that he might be away from town for a couple of months. To Mr Atkinson : He had had previous business transactions with defendant, who had never made a stipulation that he would sell witness a watch conditionally on his -working on the line. He denied telling defendant, on the conclusion of the purchase, that he was going back to. the railway workings. He simply shook hands and defendant wished him luck. To his Honor:, When he shook hands with defendant he did not tell him he was leaving for Wellington next day. To Mr Atkinson: He had thought of going to-Sydney for a trip at the time. To his Honor: He had brought some of his clothes with him from the railway works. . To Mr Atkinson: He had been in the Dominion for 10 years; and had a family, of a son affu two daughters, living in England. It had been his intention to go Home and -brine out his son. To his Honor: He intended to resume work? on the railway after his return from England. To Mr Atkinson: He did not think it ( would make any difference to defendant where he (witness) was so long as he sent the monthly " payments for the watch. His Honor: I do not suppose Brown would have sold the watch if he had said he was going to England. Cross-examined bv Mr Maginnity : He came down from the line about three days before he called on defendant. He was not paid off before he came to town. He was Daid off in Nelson two days before. He was working on the cooperative system on the line. The police did not come to him when in town j in connection with some money he had received from hi 6 mates to pay a store : account. I To His Honor: A policeman did come to him in reference to some money, and he had informed him that the account was wrong, but that he was going to pay the right-amount. Cross-examination continued : He left some of his under-clothiner at the railwav works, valued at about 30s. He knew he.was goine to Wellington on his way to England the day he got the watch from defendant. Bv his Honor: Do vou think Brow" wonld have parW with a £3O if he knew .you were soins to England . Witnf*ss reolied that he did not think it would make anv difference, so long as he he paid the instalments. Cross-examined : He d'd not »-ll defendant that he was going to England under the name of Payne.

Mr Maginnity : Why ? Plaintitf : 1 have my reasons. He was arrested on board the 'boat; he was leaving for England in. He did not tell defendant that he was leaving the colony, or that he was going under an assumed name. He did not tell defendant that he was going back to Glen Hope, or that he was going to England. After he had paid his passage money, he had about £lO in hand. He had told people in Nelson that-he was going to England. There was no illwill between him. and defendant. He did not think he had failed to make provision in Nelson for paying the instalments. He had not told defendant, after receiving the wacth, that he was still working at Glen Hope. He knew that MiAtkinson had seen defendant with a view to arriving at a settlement. Mr Atkinson was not justified in offering defendant £SO to square the business. Mr Atkinson : I did not make the offer. He objected to Mr Maginnity making the statement. His Honor held that the question was relevant in cross-examination. Witness did not ask defendant to have his name engraved on the watch. He had paid £7 10s to defendant on the •watch and chain. Mr Maginnity produced a receipt for £7 10s, cost of a chain. Witness reiterated that the sum had •been paid on the watch and chain. He was satisfied that if he had gone back to Glenhope after getting the watch no information would have been laid. Further examined by Mr Atkinson, witness repeated that he made no secret of his intention to leave New Zealand, -e had given him (Mr Atkinson) no authority to offer defendant £SO to set- ! tie the matter. . Mr Atkinson said this was his case. Mr Maginnity said the onus of proof was on plaintiff. No hint that Laney was leaving for England was given to defendant. \lex. Brown, the defendant, a member of the firm of Brown Bros., jewellers, stated that plaintiff came to him for a watch a nd chain, and asked to have it on tune-payment, to which witness agreed When plaintiff came to him on sth June he asiked witness if he had engraved his name "on mv watch." Witness had nodone so, at the time. When plaintirt called for the watch and chain at a later date, plaintiff handed him a cheque for £l2 odd. Witness said "I will give you a receipt for the chain," and plaintiff said "yes." They shook hands, and plaintiff said he was off back to the works in the morning. . To Mr. Maginnity : After .nraking arrangements for the payment, a cheque was handed to him, from which he took £7 10s, telling plaintiff thait he would give him a receipt for the chain, leaving I £3O for the watch. When inquiring from Mr. Hedges (Public Works Department) ! as to (plaintiff, he had been informed that Jhe had •been paid off. Witness then put the matter in the hands of the police, | and a warrant for plaintiff's arrest was prepared for witness to sign. It was his opinion when he heard that Laney was going away that the -action was a criminal one. He would not have scid the watch to plaintiff had he known he was leaving New Zealand ; nor if he had known that he was mot returning to Glenhope to work. He had made it quite jclear to plaintiff that the monthly payments must not be less than £3. Cross-examined by Mr. Atkinson: When, he was Ttaking inquiries, he thought he -was losing his watch and his money. On the information he had received that morning he had put the matter entirely in the hands of the police. His object in laying the information was to get the money; and if the money had been paid he would not have gone on with the proceedings. His Honour said he thought it reasonaWe to put a good profit on the sale of a watch to a labouring man without any security. To Mr. Maginnity : When he was anxious to get his money it was in his mind that plaintiff had been guilty of ~a criminal offence. Mr. Maginniity asked whether the claim could succeed for anything at all. Plaintiff must prove the existence of maliciousness, arid also prove a reasonable and probable cause for the action. He contended that the plaintiff's claiir must fail in the absence of these elements. His Honour : If a man has a reasonable and prohable cause, he may be malicious if he likes. Mr. Afckmson contended that it was an improper motive for a -man to put the criminal law into force for the recovery of money. His Honour said he did not think any advantage would he gained by reserving judgment. The case ought to have been tried by a jury. Though it did not often occur that a judge was called upon to decide a case of .this kind without the assistance of a jury, still it ha<j been imposed upon him, and he had to express his opinion on the irerits of the case. After stating that plainitiff was fully entitled to tihe acquittal in a former case in the same connection, his Honour reviewed the evidence at length, jatatins' that it was necessary in older to recover, that plaintiff should affirmatively prove that the charge was made maliciously a nd without reasonable and probable cause. Osn plaintiffs own showing, he had left Nelson without letting defendant know where he was going, and his Honour thought it extremely unlikely that plaintiff intended sending any remittances to defendant iron: wayside points while on his way to England. Whether plaintiff was acting honestly or not, he left defendant in a state of deception, and if defendant had misunderstood plaintiff's action he (his Honour) could not see how it could be helped. His Honour said he could not evade the conclusion that, on his Ovvn statement, plaintiff was purpose ly leaving defendant deceived. In these circumstances he held that not only had plaintiff failed to prove reasonable and probable cause, but that defendant had made out reasonable and probable cause for the action he took. The case for plaintiff failed, in that he had not affirmatively proved that defendant in laving the information, had done so without reasonable and probable cause. Judgment would be for defendant. ° Uosts were awarded according to scale, with solicitors' costs and disbursements.' A TRUST CASE. The case John Vosper (Mr A. T. Maginnity) v. Henry E. Gilbert, John B. Jordan, Francis Houlder, John S. Wratt. and John Heath (Mr. L. D. Easton), in the matter of the trust deed of Motucka school, dated 20th December, 1853, from John D. Greenwood to Rev. Thos. L. Tudor and others, is now ibeing heard. APPEAL CASE. Sitting in banco vesterdav the appeal case Joseph Busch (Mr. N. P. Adams) v. Christina Busch (Mr. J. Houlker), an appeal from ithe decision of Mr. J. S. Evans, S.M., made under the Destitute Persons Act, .1.910, was taken. Decision was reserved.