DISTRICT COURT.

Thames Star, Volume VII, Issue 2065, 17 August 1875, Page 2

DISTRICT COURT.

THIS DAY,

(Before His Honor F. D. Fenton, Judge.) -j. , X 7 SPENCBE .V. P. BENNETT* ' .; Damages, £100. This case was struck out. JOHN BUCHANAN V. M'EOBJEETS. Balance of account £98 9s 4d. ■ • - Defendant confessed judgment. False Imprisonment. FBEBEBIC BENNETT V. W. H. CJISSIN. This was an action brought by the plaintiff to recover damages for being, at the instance of defendant, illegally ar-. rested. £10 paid into Court. Mr Macdonald for the. plaintiff; Mr, Tyler, instructed by Mr Brassey, for defendant. ' - All;the Jury •'beiijig present^ twelve in number, four were struck, o'utr by either counsel, and the following gentlemen were empannelled to try the case:—Messrs W. Brown, J. Baird, J. jCullen, J.Cor'bW;t^ :Mr Baifd;was;#e foreman;- \\,

Mr Macdonald in stating the case'said; the action was brought ;to recoyer damages received at the instance if not at the hands of: the defendant. The facts of the imprisoDment and unjustifiable character of it were -not' disputed^ and the question then reso Tved itself iutp ■one of damages, and proceeded to si ate the facts of the case as set but in mifcigatibn of damages; which were that the plaintiff had-caused defendant td be aiVDsted "fbV removing trees and shrubs from Parawai, Gardens, and on fiudingHhat the^ 1 charge r6f feloniously stealing, on which he had caused such arrest to be madeV could not be substantiated had withdrawn it, after ;causing the. plaintiff much annoyance and worry as well as bodily inconvenience resulting to him from;'his inaprisqntnent. The learned counsel then reviewed the arrangements made between Bennett and Qassin, as copartners in the management of Parawai Gardens, one condition of which was — Bennett not being a tnonieA man-f-thafc Cassin should; pay to Bennett a weekly sum of money. As for some time Cassin failed tO;do) this, and, moreover ceased to treat Bennett as a partner, Bennett, to assert his.own right as a partner, had taken away some of the shrubs arid • trees, for : -the purpose of selling them. Whereon, Cassin . put in full force the criminal law; with the view! to crush Bennett, and caused him,to be imprisoned, for which ; act he now suedfor damages. He called-— :

Frederic Bennett, who said, I am a gardener, and, some iirae back, was at Tararu, and subsequently became associated with Mr Cassm, at his solicitation. I took some trees from Parawai graden, I think, on the morning of May 24th, about three-or four o'clock in the morning, acting under advice. On the same evening I vrv? arrested, and locked up. 1 Cassin was with the constable at the arrest. I was brought before the Magistrate next morning.. The case was remanded, and I was held to bail. On the next day, no evidence being offered, for Cassin, I was discharged. In the lock-up I was very uncomfortable; being locked-up, fed on bread and water, the light taken away from me, my tobacco, and. all I had. on me.

Cross-examined by Mr Tyler—l took over one hundred, trees, mostly fruit trees, not old enough to bear fruit. They had one apple between them the previous year, which Mr Cassia ate and'said it was a beast of an apple. I was a partner with Mr Cassin under 'an agreement with Mr Cassin. (Agreement read and put in, one clause of which stated that W. H. Cassin should, conduct the business.) The reason I broke through this clause was because Mr Cassin was making a fool of the .business.* .T.he removal of the trees did them no: *fia"rm. Removing" young trees will throw them into fruit bearing, sooner. As re-' gards'the trees Tcbhsider I had a better 1' right to them than Cassin, because' he,\ during-, my absence, had. carried away! nearly everything on the premises. Cassin' I never asked me to pay my share of' the-' losses. His solicitor subsequently-asked' me for £37 19s.

Re-examined by Mr Macdonajd-—The, trees were taken back to Parawai Gardens and replanted. By the Oourt—f-thought very little of the apology a3 it was given by; Mrl Brassey. I should have thought more of it had Cassin made it himself;

Robert Bullcn", Officer of Armed Constabulary in cKarge of the district, said—? I met Mr Brassey and Cassin in the street immediately after Cassin had reported to ' me the robbery of some trees^ value £25, ' from the Parawai Gardens. Cassin told me Mr Brassey would tell,, me the parti- j culars, Mr Brassey said'm hearing of' Cassin that Bennett was suspected of the robbery, and something was.'said about an agreement .between Bennett and Cas- } sin. When Xi heard this A. hesitated: about taking'ahy steps, uutil*Mr BraSsey told me a felony had been committed' I t^en sa|d jf £hat be so an^ your man will give Bennett into- custody I will have him arrested;-.• -This conrersation was in* Grahamsto'wh. ' Tw^ntto Shortlaud, whither, shortly aftgr, Cassin and Detective Brennan came. The ca.se> was spoken of, and Cassin charged; Bennett with stealing the trees, and_ I"' instructed Brennan to go with Cassin and search for them. Bennett was arrested and brought before a magistrate.. Information had in the meantime' 4jeen sworn to. Cassin demurred to swear the information as he had been in • structed by his solicitor not to do so. He did si^u it, end ou l.his iafoiffiat:on .Ben-

nett was charged. I had not made myself acquainted with the details of the case and was unable to prosecute it. Cassin was present but his solicitor was not. The case was adjourned until the next day; defendant being admitted to bail.;

By Mr Tyler—Cassin was present when Mr Brassey told me that a felony had been committed.

: , Samuel Brennan—l took Bennett into custody on the charge of Cassin for stealing trees and shrubs from the Parawai gardens. I declined to take Bennett into custody unless^ given into charge by Cassin because instructed not to do so by Mr Bullen.

Cross-examined by Mr Tyler—l took him into custody between 9 and 10 at night. I told Bennett I knew where the trees where. Bennett said he had aright to them. Cassin asked him why lie took them at night. - -, I'- :This was the case, for the plaintiff.. .• , Mr Tyler for the defence said he felt almost disposed ■ to. leave the case in the hands of the jury,/.as the amount (£10) paid into Court seemed amply sufficient to meet the circumstances of the case. But in the interests of his client he would -—as he was in a position to do—put it in a much more favorable light. He admitted that the imprisonment was illegal, and some payment might be made, and urged that £10 was enough, as there were some points to be brought forward in mitigation of damages, some of which were -admitted by the defendant's 'solicitor.. Another point Mr-Tyler drew the attention of the jury to was that the trees (he argued) r were taken away by night, ai three or'four o'clock in the morning could not be regarded as any other time. Also that Mr Cassin was ■ assignee of the g round, and responsible for the trees which were taken ' away without his consent. That Mr Cassin was in the bona fide belief-that a felony had been committed. That Cassin demurred, as appeared from the information of Mr Bullen, to sign the information and though in Court.took part in the proceedings, and therefore had nothing to do with the remanding of the case. Therefore all the jury' had to consider was the imprisonment ofßennett during some' 42 or 13 hours. Looking at these points he considered that,£lo was the outside sum that could- be claimed and called ■ ■■

William Henry Cassih, who said —I adm'.t having caused Bennett to be arrested. I did so on the advice of Mr Brassey. I believe that the trees had been wrongfully removed. I did not give Bennett into custody from any malice or spi' but simply because I was responsible for the trees. I think 118 fruit trees had been removed, aad a large quantity of other shrubs. They were taken away in the night. The whole of them were taken to a place in Shortland about a mile away. I estimate the value of the trees at about £4D to £50. (Deeds, &c, connected with the-Parawai Gardens were here put in.) When the trees were removed Benneit was indebted to, me, owing to locs, sustained by the gardens. Some considerable time before this, I showed Bennett the books, and he said he cor.ld see there was a loss.

Cros:-examined by Mr Macdonald : I told Tennett I considered I could pull down the house he lived in, as I •was the manager. I said this, not as a threat, but to show I had the right.

The Court tiiea adjourned until a quarter to two. On the' Court resuming, Mr Tyler addressed the jury and stated that there was nothing in the evidence as giren to them in the case brought before them— and they must exclude all knowledge they might have acquired elsewhere —that the olaintiff had suffered any hurt either in his body or his prospects to justify him in obtaining a verdict "of. more than £10. They were only to consider the fact of what damage he. suffered by being imprisoned from 10 o'clock at night until 10 o'clock the following morning, bearing in mind the, fact that he was imprisoned at night only when he could do no work, and nothing prevented him immediately he .was liberated, from resuming his work, as the defendant had nothing to do with causmg the remand." Also, that the plaintiff had exceeded the terms in which he was admitted - partner in removing the trees, and was only engaged to supply the work, Uassin having, as it were, to supply the capital in the shape of the Gardens; and further that the whole proceedings were brought about by the wrongful act of the plaintiff. The learned counsel also drew the atttention of the jury to the position in life of the plaintiff, a thing necessary to be borne in mind, as what would be reasonable damages for one person would not be so for Another, and reminded them-of the fact that the plaintiff was described by his own counsel as but "a journeyman gardener," and that Cassin had no malice in causing Bennett to be imprisoned, but only acted in the way he was led to believe was the right one. On these and oii other grounds he considered that £10 was'44»c>ugH'*|gfcnd more than enough to satisfy.the jusfcise of the case. Mr Macdfliiald said that he thought the plaintiffr-^ffs perfectly right in bringing this matter before a ■ jury, even were he sure that JBLQ were sufficient, in justice to himself anq Jo his children, but he considered that£lQ, was not adequate, it was eitl.er too much or too little

[We are unable to give the whole of Mr Macdonald'sspeech,urgingtHeclaim's of his client, or of his Honor's chirgo to the jury, who having considered their verdict, brought in damages for the plaintiff £50.] The Court then -roje, the bankruptcy cases being adjourned,"...