THE ACTION AGAINST A BAILIFF.

New Zealand Herald, Volume XXVI, Issue 9377, 29 May 1889, Page 5

THE ACTION AGAINST A BAILIFF.

JUDGMENT OF DR. GILE S.

THE COMPLAINT DISMISSED. Dr. Giles, R.M., gave judgment yesterday as follows in regard to the complaint made by S. Mills against J. Burke :—-

This is a complaint against the bailiff of the Court by Samuel Mills, against whose goods a distress warrant was levied on the loth November, 1888, at the suit of Thomas Watson. The substance of the complaint is that the goods of the complainant were removed and sold before the legal term of five days had expired; and secondly, that they were seized under an "improper warrant. 1 This enquiry has been held under the provisions of s. 131 of the Resident Magistrate's Act, 13U7, which gives this Resident Magistrate authority to enquire into allegations of extortion or misconduct on the part of any officer of the Court, and to award damages and costs, and to impose a fine if .si '!i a course should seem fitting. There is indeed no other power whatever of holding such an enquiry, or of taking sworn evidence, and therefore it is vain for the complainant to contend, as he has strenuously done through his counsel, that lie had reason to expect a wider enquiry than into the question of personal misconduct on the part of the bailiff, and that damages would lie awarded him if he could prove an actionable wrong. But it is perfectly manifest that lie was not led to expect anything of the kind. The protracted correspondence consequent upon his making his complaint to the Minister of -Justice, was brought to a termination by a letter to the complainant from that department on the Oth instant, in which he was informed that his proper remedy was by action, but that if he was still unsatisfied, he had better lay the matter _ before the Resident Magistrate, "who is the person authorised by law to appoint and dismiss the bailiff." This points to an inquiry into misconduct, and to nothing else, and the view taken by the Minister is clearly the only one consistent with the law. it is therefore quite clear that nothing can come of this enquiry unless misconduct is shown, and such misconduct ought to have been distinctly set forth ill the complainant's statement, but it was allowed to be brought out, if possible, in evidence. Even if misconduct were proved it is still very doubtful whether damages could be awarded to the complainant, because s. 131 must not be read so as to nullify s. 117, which forbids any action or prosecution against an officer after three months have elapsed. In the present case, an action was brought against the bailiff in January last, but it broke down because the_ plaintiff had not given the month.s notice required by law, and the three months within winch any action must be brought have long since expired. It. seems to me, therefore, that _ the provisions of the Act would be futile if the complainant were permitted to do, by a side wind, under s. 131 what a. 117 lias expressly said he shall not do. Coming now to the question of misconduct, it is perfectly clear that the bailiff had nothing to do, personally, with the premature sale, lie gave no instructions for it to be made, and did not know of it until afterwards. As soon its lie did know of it he exerted himself to make restitution by getting the goods back again, until his proposal to restore them was rejected by the complainant. The other part of the complaint, relating to what is called an " improper warrant," is full of bewilderment. In the month of May, 1888, a d.w. was issued and returned with an endorsement of nulla bona. The warrant has my signature and appears perfectly regular. Another warrant was issued on the, l.'iiii October, bearing the signature of Mr. Soth .Smith, who, during that mouth, was acting as R.M., which document also is quite regular, anil was returned into Court on the 14fch December, with a certain sum of money in part payment of debt and costs. This warrant was first placed in the hands of an assistant bailiff named Russell, who, being locked out of coin-

plain tint's house, wa-s unable to execute it, and the bailiff then, so he says, after a fortnight had elapsed, gave it to ifnrgreaves, another assistant, who succeeded in making the levy. The assistant-bailiff Walsh also says that he saw the same document, to the beat of his belief in the hands of hturgreaves at the complainant's house. But Margreaves and the complainant himself say that the warrant under which IJargreavcs made the levy was not the same document, but one winch had the name of Mr. Setli Smith scored through and my own name put there instead, the latter being written in the margin following the printed words " Resident Magistrate." They say, also, chat one or more dates on it were altered. Hargreaves says that lie gave this warrant to Walsh and never taw it again. Walsh says that he handed it back to Hargreaves after looking at it, and did not sue it again until he found, it, after the sale, on the table at the bailiffs olliee, in a dilapidated condition, when he pasted it together in the form it now presents. Now, this story about the warrant with the altered signature and date appears to me to be a perfect mystification. It leads us into a fog and leaves us there. I t is impossible to draw any safe conclusion from it. The complainant wishes me to believe that the bailiff forged it, and I shall be quite ready to consider this hypothesis when I can find a case of a man who, having a good bill or note in his pocket, or knowing where he can get one, prefers to forge a bill or note, aud to fill the forged document with such clumsy alterations and erasures as to provoke the suspicions of even illiterate persons. So much is the complainant pressed by the difficulty of suggesting any reasonable hypothesis, that his counsel makes the random guess that the bailiff might have lost the original warrant, and forged a substitute. It is difficult to treat such a suggestion seriously, but it may be asked why the bailiff could not have obtained a duplicate warrant, or, if he preferred forgery, why he did not use a blank form and fill it up as he pleased; and, lastly, why he should strike out the right signature, and put in a wrong one. I do not wish to impute deliberate falsehood to the complainant and his witness, and I prefer to think that some mistake or confusion of documentsthe clue to which is now lost—may have taken place, But I am bound to say that the case as put before me on this head is so contradictory to the documentary records, and to the ordinary course of things, so improbable in itself, and so incapable of leading me to any safe inference whatever, that it remains without effect on my mind, and constitutes 110 ground whatever for any censure of the bailiff. The assistant bailiff, Walsh, is shown to have had nothing to do with any warrant until he saw it in Hargreaves' hands on the 14th November, yet I am asked to say that he has perjured himself because his recollection 011 one or two points is contrary to that of other witnesses. On the most important of these points I rather incline to believe his evidence, not feeling at all satisfied that he.ever gave directions at the auction mart to sell the goods on the Friday. At all events, I distinctly decline to express the opinion that I am asked to do; and I find that no personal misconduct on the part of the bailiff has been proved, and I accordingly dismiss the complaint.

Mr. Theo. Cooper applied to His Worship to grant costs. Dr. Giles said he would nob grant costs. He did not) know that he had the power to do so.