NELSON.-WEDNESDAY, NOV. 6.

Colonist, Volume LIV, Issue 13567, 7 November 1912, Page 6

NELSON.-WEDNESDAY, NOV. 6.

Before His Honour Mr. Justico '.Chapman.

CLAIM FOR DAMAGES

JUDGMENT FOR, DEFENDANT

Victor Laney, labourer, of Glonhopc claimed from Alexander Brown, jowoller of Nelson, the sum of £500 damages for •alleged unlawful arrest and imprisonment. . Mr P B. Atkinson appeared, lor the plaintiff," and Mr. A. T. Maginity for ■the defendant. . In the statement or claim it was alleged : (1) That on the 7th day of June, 19J.2, at Nelson, defendant maliciously and without reasonable and probable fan so preferred a charge of false pretences against the plaintiff before a Justice of the Peace by stating in an intorma-tion that plaintiif by means of a certain false pretence, knowing the same to be false, did obtain on Juno sth from Brown Bros., of Nelson, watchanakers, a gold watch, of tho value of £30, by falsely representing that he was then employed by the Public Works .Department, and would pay for tho watch by regular monthly instalments, ■being an indictable offence. The information was signed by Alexander Brown before B. H. Mollor, a Justice, of tho Peace. (2) That defendant caused plaintiff to be acrfosttM on the above charge at Wellington on 7th Juno, and. brought before a Justico of tho Peace there, and remanded to Nelson, where ho was brought before two Justices of the Peace on tho 11th June, 191-*, and committed for trial on the said charge." (3) That the defendant caused the plaintiff to be imprisoned on tho said charge from the 7th day of June, 1912, until 24th day of June, 1912. (4) That the defendant prosecuted the plaintiff on the said charge at tho sittings of the Supremo 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, for which loss of employment and expenses he claimed as special damages as follows: —1912, Juno 24th, to paid Mr. Atkinson, solicitor, on account of his costs for defence, £13 13s; •to 'balance owing on Mr. Atkinson's bill of costs, £5 os ; loss of employment from 7th June, 1912, to tho sth July, 1912, 4 weeks at £3 a week, £12; total expenses in Nelson from 24th June, 1912, to-sth July, 1912, £2. Total, £32 18s. (6) The plaintiff claimed £500, which euro was inclusive, cf the special damages set out in the foregoing. Mr. Atkinson, in opening, outlined the case for the plaintiif, and contended that defendant should have recovered the amount owing for .the watch by civil process, and not by criminal proceedings.1 Edward C. Kelling, Clerk of the Magistrate's Court, produced the information, committal, aud the indictrnient of plaintiff. Plaintiff then gave evidence. He stated that ho was a labourer employed on the Glenhope railway works. In November last Ji£ spoko to defendant about a gold watch chain, and defendant remarked that a gold watch would look well on the end of it. Plaintiff said he would get one if he could pay for it on time" payment. Subsequently he wrote defendant several letters dn regard to the watch, and in June he came into town and saw defendant about the chain, which he took. He paid for the chain £7 10s, and bought tho watch. ■He was to pay for the latter on time payment. He'told defendant that he was going away for a couple of months, and if he did not hear from him not to .worry. , 1 By his Honour: Did yon return to the works that clay ? Witness: No, your Honour, I went to .Wellington. His Honour: When did you tell defendant that you were going away for a couple of months ? Witness: The day I bought the watch. . .- Continuing his evidence, plaintiff said defendant never made any stipulation that ho sold him the watch conditionally on lrw working on the line. He never told the defendant when he said goodbye to him that he was going back to the line.' .. His Honour: Did you then intend to go to Wellington the next day ? Witness: Yes, your Honour. Mr. Atkinson: Had you then made up your mind to go further than WelluigWituess: I thought of going to Sydney for a holiday. His Honour : Did you fetch away your clothes from the works ? Witness : Not all of them. Continuing, witness said he had been •ten years in tho Dominion. His son and two daughters were in England. His son had just finished his time in the Army, and he intended going Home to bring him out to New Zealand. By his Honour: He had spoken to the . engineer before his departure about getting back to the works. By Mr. Atkinson : He could have sent defendant instalments from the nine ports of call on the way Home. He was arrested in "Wellington on June 7th, (brought before Jiistiees; at- Nelson- and committed for trial. " He appeared before the Supreme Court and was acquitted. ' ■',',.- Mr. Atkinson proceeded to ask him again if there wero any conditions stipulated when defendant sold the watch, iwhen His Honour interposed: I don|t snpiposo Brown would have sold, him the watch if he had said he was going to England. Mr. Atkinson: That is so, your Honour. . . By Mr. Atkinson: After the criminal proceedings defendant sued him for the amount due on the watch. Judgment iwas given for the amount claimed, rwhioh was to be paid by instalments. Defendant subsequently put in a disifcress warrant, and seized the watch. Cross-examined by Mr. Maginnity, plaintiff said he came down tho line (three days before he bought the watch from defendant. He was paid off on '4fch Juno.' He was the leader of a party rworfcing on the co-operative principle. One of his mates gave him £3 to pay an account, but the bill, was rendered for over £4 and he -refused to pay it. A •fwliee constable came to him about the imatter the day before he went to Wellington. He told the constable he twouid pay £3. He left his underclothes and working clothes behind him at Glonhope. They were worth about QOs. Ho know when lie went into defendant's shop that he was going to (England. His Honour: Did you imagine that OBrown would part with a £30 watcli if lie knew you were going to England?

Witness: I did not think that it Would make any difference where I went so long:'as I paid the instalments. Mr. Maginnity: Did you tell Brown tl'itt you were going to England under th * name of Payne? Witness: No. -Jr. Maginnity: "Why not? • rituess: For reasons. i further cross-examination witness f»:;i' he was arrested in Wellington on ( Ik ,--d a steamer, and ho had in his possef-. .ion a. ticket for London. He told ■dei -ndant that he would hear from him in ;i month or two. His Honour: How could Brown hear from you in a couple of months ?

Witness: By sending money from tho ports of call.

His Honour : Why could you not have given it to him then ?

Witness : 1 might have wanted it myself. ' ,

air Maginnity: You had isent all your' money to England ?

Witness: ies. I had about £10 left. I Mr. Maginnity: If ;i m!U i eam<s to you and got a watch, and the next thing you heard from him ho was going to JiTngiancl, what would j-ou do?' Witness: Jf 1 tnouglit he was trying to do me lor the watch 1 would try to atop him from going. By Mr. Magiuniiy: if ha thought he was a genuine man he would not have stopped him. • He, considered that he (witness) was a genuine man, although ho had not told defendant that he was loavin" for England, and hud changed his name. He had never made any overtures to defendant about this1 j action, but Mr. Atkinson had seen de- | fendant. He had claimed £60U; My. Maginnity: Did .>ou not as late as Friday last, through your solicitor, say you would accept £50 to settle the matter? Witness: No. I did not have any ■ know.edge- of the offer. Witness then detailed his arrest m Wellington. Hie Honour: What time were you arrested ? Witness: Eight o'clock. "His Honour : On the Sydney boat ? Witness: Yes. Has Honour: And she sailed three hours late. Mr. Maginnity: If she had sailed at her usual time you would have got away. In further cross-examination witness said the £7 10s was paid on .tho watch and chain. Defendant was not going to give him tho watch without having something on it. He was certain that if he had gone back to Glenhope there would have been no .information laid. He-examined: He never gave his solicitor instructions to settle" the matter for £50. Mr. Atkinson said that was tho evidence for tho plaintiff. In reply to Mr Maginnity his Honour said he would reserve any non-suit points that might be raised. _ Mr. Maginnity then proceeded to outline the defence.

In the statement of defence defendant admitted that on the 7th June, 1912, he preferred a charge of false pretences against plaintiff, but denied that he preferred such charge maliciously and without reasonable and probable cause: defendant denied that ho caused plaintiff to be arrested as set out in paragraph 2 of tho statement of claim. Defendant doniod that he caused plaintiff to be imprisoned as set out in paragraph^; he denied that he prosecuted plaintiff as set out in paragraph 4; and he denied that, tho plaintiff was entitled to any sum from him for general or special damages or'otherwise. Alexander Brown of tihe firm of-Brown Bros., stated that plaintiff wanted to buy a watch and chain on time payment. He subsequently selected a chain, and the watch was put aside for him. On sth June plaintiff came into the- shop for the watch and chain. Plaintiff agreed to pay £3 a month off tho watch. Plaintiff then gave him a cheque for £12 odd, from which he took £7 10s. Witness told him this would pay for the chain, leaving £30 on the watch. When the transaction was completed plaintiff shook hands with him, and said he was going back to the works in the morning. Next day he saw Mr. Hedges, and asked him if Laney was at the works. He replied that he had been paid off. Witness then heard that Laney had gone to Wellington. He saw Constable Townsend about the matter, and in conversation about Laney he (Townsend) said that the police had seen him (Laney) yesterday, and that ho had gono to Wellington. Constablo Townsend prepared papers for him to sign, and told him thoro was not much time to lose. Witness thought that plaintiff had been guilty of a criminal offence. He gave no specific instructions for the arrest of plaintiff, the whole matter was done by the police. He would not have sold the watch to Lanoy if he had told him he was going away, and he would not have sold it to him if he had not told him he was returning to the works. By Mr. Atkinson : On Friday morning ho thought he was going to lose the watch and his money. The only enquiries he made were from Mr. Hedges and Constable Townsend. He was quite satisfied to leave tho matter in tho hands of the police. His object in laying the information was to get the money.

Mr. Atkinson proceeded to crossexamine witness about the cost of the watch and the profit ho made on it, when his Honour remarked that it was only natural that defendant would put on a good profit on a gold watch ho was selling to a labourer without security. This concluded the evidence. _ Mr. Maginnity submitted that plaintiff had failed to prove malice, and had also failed to prove that defendant had acted without reasonable and probable cause. Mr. Atkinson submitted that it was improper to put the criminal law in motion to recover money. His Honour, in giving judgment, said it was a case that-ought to have been tried by a jury, .and it was not often that a judge was called upon to decide a case of the kind without the assistance of.a jury.. Plaintiff had been acquitted of the charge laid against-him. All parties started with the assumption that plaintiff was not guilty of the charge, and he now came to the Court and based his claim on the allegation that.that charge was made maliciously and without reasonable and probable cause. To enable him to recover damages it was necessary for him to prove both these facts. As to the proof of malice although it might be sufficient to show that the information was laid with the object of obtaining money, it must be born 0 in mind that plaintiff would hay© to prove malice in the action of defendant and, want of reasonable ! and probable cause in the proceedings. The main enquiry was whether defendant acted with want of reasonable and probable cause, and whether plaintiff had made that out to his (the Judge's) satisfaction. There was some dispute between* plaintiff and defendant as to whether it was a sale for cash for the chain, or on deferred payment for the watch and chain. The-.receipt was for £7 10s for chain and a debit for £?,0 for a watch. "It must be a good country," remarked His Honour, "whore a jeweller can trust a labourer for a luxury I certainly have never been able to afford." However, that was the transaction. Plaintiff did not dispiffce that ho had a conversation with defendant and called as coming from Glenhope. Plaintiff admitted that he never told defendant or conveyed a hint that he was going to England and that he had brought lawnv'.his belongings except his. working clothes and under-flannels .from ' Glenhone. H© went to Wellington leaving defendant in total ignorance, and on his own showing' wont further, because he

spoke about monthly remittances to defendant, and his only explanation of this was that ho w.as going to send them from ports on tho way Jtiome. it was extremely unlikely that he intended to mako tlie remittances from wayside ports, seeing that he was earning nothing aud had only reserved enough money for the purposes of his requirements at .sea. Whether ho was acting honestly or not, he left defendant deceived.' it must have been present in plaintiff's mind when he left defendant'^ .shop that he was going, away. His lJ.;mour .said he regarded.it clearly that defendant thought that plaintiif was going back to the works. On his own statement plaintiff was purposely leaving defendant deceived. Defendant admitted that what he wanted was his money. His Honour regarded it as quite certain ' that defendant would never have dreamed of giving plaintiff the watch if he had thought he was going to England or even to Wellington. He had no reason to doubt defendant's word. —it was oath against oath. There was nothing against defendant, but there wa ( s against plaintiff the fact that he left defendant tacitly if not actually deceived. He was entitled to accept defendant's statement that plaintiff made tho statement that he wa« going back to tho works. The prosecution was based on tho false impression created in defendant's mind. What transpired with the constable went a long way to confirm this impression. Plaintiff was entitled to the full benefit of liis acquittal, but that did not dispose of the whole question. His Honour said he was quite satisfied from all the circumstances that defendant believed, and had grounds for the belief that he had been actually deceived. His Honour held that plaihtiii: had failed to prove what was a reasonable and probable cause, and judgment would be for defendant, with costs as per soale, and witness' expenses and disbursements.