SUPREME COURT.

Star (Christchurch), Issue 4745, 16 July 1883, Page 3

SUPREME COURT.

CIVIL SITTIHQS. Monday, July 18. (Before His Honor Mr Justice Johnston, without a jury.) BTTJHH V. TTNION gTHAMSHIP CO. Mr Bealej obtained, by consent, a postponement of this oaee till August 13, PAEKINSON T. GOODWIN. Mr Bcaley obtainod a similar postponement ef this case. OEEBITOBB' TEUSTEB OF POPS V. POPB AND AKOTHEB. Mr Bealey obtained a postponement of this case to the same date. IB ILEMINO T. TABDSF AKD ANOTHSB. Mr Spaoknian asked his Honor to allow him to move for a decree in banco. He had been unable to get an affidavit verifying the statement of olaim. Bit Honor postponed the matter till the Bitting in banco on July 25. Hill T. LBONABD. McFishorfor plaintiff; Mr Stringer for defendant. Thi* was an action to recover £250 compensation for false and malicious prosecution. The defence was to the 6ffeot that Mesirs Wilkin and Co., whose olerk the defendant was, had lent plaintiff a butcher, £52 on the security of a cart, horse, &o , and that the plaintiff had taken to his own use the srtioles named ; secondly, lhat the defendant had acted by theadvico of counsel, firmly believing that plaintiff had been guilty of larcany. Mr Fisher was prepared to contend that the property had never vested in Wilkin and Co. His Honor believed that the property re* mains in the hands of the mortgagor. Mr Stringer took it that plaintiff had an equitable interest, while Wilkin and Go. had a legal interest. The fact of the plaintiff removing the goods gave Wilkin and Co. the right of immediate possession. His Honor asked in whom possession would lie it' the goods had been stolen by a third party. Mr Stringer submitted that it would lie in either the mortgagee or the mortgagor. Hit Honor asked what was the itatement of facts whioh had been submitted for Ooumboi'b opinion. ttv Stringer stated tho facts. Mr Fisher eaid theae might have been submitted for Counsel's opinion, but they tvero not fcruo. His Honor thought the evidenco should be taken. Mr Fisher called the following : Bichmond Baotham, Resident Magistrate at Ohmtohuroh : Eeoollected taking the information produced on March 15. It was laid by Alfred Leonard against John Hill, for larceny of horee and cart, value £J5. A warrant web issued. On March 81 tha ca-je was called on, end withdrawn by the proseoutor. No evidence was taken, and the acoused was discharged, the police informing witness that there was nothing on public grounds to prevont the case being withdrawn. Detective Sobert Bainor Jones: Arrested plaintiff on March 26, on a warrant which could not »ow be found. It was at Brookside, near Leeston. Plaintiff was employed at a threshing machine. He told witness that the horso was in tho neit paddock, and that tho oavt and other articles were in possession of his wife in Papanui road, who h*d instructions to let the cart out on hire if sh« could do bo. Plaintiff was pub in the lock-up, and remanded to Ohristchuroh by Mr Lawrence, J.P. John Hill, the plaintiff: Was a butcher, residing before J«.n. 8 in Victoria street. Gave up shop business at tho end o£ Dooember, and began hawkiDg. Owed Wilkin and 00. at the end of Deoetnbor about £32. Was summoned for the money. Gave them a bill of ealo over horse and cart and other things on tho promises, for whioh they agreed to pay off two other creditors for about £10. The bill of sale was for £52 3b 9d. Got £8 caßh. Hed no copy of the biil of sale. The shop had boon shut about ten days, and was closed when defendant came on the night bofore the bill of sale was given. Had a diatrois in the hjuse nt tho time, and defendant paid off the <M3ount\ Could not say that defendant know he was hawking. . Loffc Victoria street Bbout tho second week in January, and went to Innis' road, where ho had lived evor sines. Took tho goods in tho bill of sale. Gave no notico to defendant, not knowing lhat it was necessary he should. Began to move about twelve o'clock on Saturday, and everything was moved by four o'clook in the afternoon. Borne of the neighbours knew he was moving. Was ill for about a wook or ten days, and waa advised to go up country for a time. Wont, and gave up butohering for a fcinio, with tho intention of renewing it whc-H he recovered his health. Went harvesting, taking with him the horse, saddle and bridle. Loft the other things under his wife's oaro. Wa9 away for threo weokg tho first lima. Eetumod then with horse, &c, and found everything on tho premises as he had left it. Went up country again with the horso, and worked with a travelling threshing machine. Was arrested on Easter Monday. Had used tho things as if they were his own, and gave no notice of removal. Had not told Messrs Wilkin that the business did not pay and would have to be given up. Several of the neighbours knew where witness had gone. Had been placed in a cell at the D»p6t with other men who were drunk. Bomainod there all night. In the morning had handcuffs put on him when going to the Resident Magistrate's Court. Was remanded till March 31, and kept at Addington Gaol for two nights, when ho wbb let out on bail. Had not tried to dispose of tho horeo and cart. The defendant, with Mr Stringer, came to him at Addington. Mr Stringer asked i? witness could produce the things mentioned in tho bill ef sale if let out on bail. Told him tho thing 3, except the horas, saddle and bridle, were on the premises where ho had loft them. Mr Stringer said he would arrange to ,let him out on bail, so that ho (witness) could restore the things. Was let out on his own bail, by Mr Beetham. Was not taksn before Mr Wilkin. Went to Wdlkin und Oo.'a office and told them to send for tho things at his place before 5 o'clock. They sent and got the things. They gave witness to understand that the charge against him would be withdrawn. The value of the horse, cart, and harness was about £45. At the time he was apprehended wai earning £3 I a wsek. Lost the job altogether. Was ar--1 rested en Monday and [discharged on Satur-

day. Had not read tho part of the bill of eale forbidding the removal of tho goods. Had to pay a solicitor two guineas for defending him, Hia wife knew where to address a letter or tolegram toliim. Reooived letters about once a week. They were addressed to tho Irwell Hotel.

Cross-examined : Mr Tabart told him to see Mr Leo Hard. Did not roeollect eeeing Mr Tabart at tho office. Did not reoollecfc telling Mr Tabarfc, Mr James Wilkin, or Mr Leonard that ho wanted some money to carry on tho business with. Had told some ono at the offico that if they pushed him for his debt he would have to file his schedule. Fothing wan mentioned about carrying en tho busir.ere in Viotoiiaetreot. lhe cart was lot out for hire for a week, without his knowledge, It had boon returned before he was arrested.

Hia Honor thought the caee was nerrowed to tho queßtion whether or not the defendant was liable for koeping tho p'aintiff in custody after it was diecovt-red that ha had net made away with the property. Emma Hill, wifo of plaintiff, gave corroborative evidence. Ker letters from her husband vrero addressed to Mr Oampboll, in Victoria street, next door to her premisc-o there. Johm Campbell, William Garrard, J-sgeph Lawton Patrick, most of whom wcra neighbours of plaintiff, in ?iotoria street, gave corroborative evidence. This was tho plaintiff's case. His Honor said that if it was a moot point whol-hor it was larceny or not, ar,d if the facts had been bond fide stated to oounsel, who hud advised that it wa3 l&roony, he (his Honor) must confess that he thought it brought the defendant within the law, and juatifieti the course that had beeu pursued. Mr Fisher thought that if the opinion of counsel waß palpably absurd it could not justify. Hi 6 Honor could not say that the opinion was incorrect. For tho defence Mr Stringer called the following : — Alfred Leonard, accountant in Messrs Wilkin and Co.'b, and the defendant in the present action ; When the bill of sale was made plaintiff said he could not carry on without an advance. Preferred the matter to Mr James Wilkin, who oonsented to advance £10, taking a bill of sale over the horse and oarfc and tools in the shop. Inspected the things on Saturday, Jan. 6. The shop was in possession of the bailiff. Wilkin had been gelling plaintiff's stock. Noticed that he had ceased buying, and sent one of tho clerks to see what he was doing. Afterwards went himself and found the plaintiff's place empty and the shop shut. Made onquiries, .and could not find where plaintiff had gone. Was instructed to consult a solicitor. Consulted Mr Stringer, who is both solicitor and barrister. Laid the faote before him, who said an information for larceny would lie. Acted upon that advice, ia good faith. Believed that plaintiff had taken the things away, sold them, and gone. Cross-examined : Enquired from only two persons at that time. After the warrant was issued, Me **arrard told Detective Neil where Mrs Hill was living. Mrs Patrick told where the cart was, a'tcr the warrant was issued. Plaintiff told witness (hat he was going on with the shop. Francis Chrietophar Tabarfc, auctioneer for Messrs Wilkin and Co. : The advance was made to keep plaintiff going on in his bueinea*. Would not have made the advance otherwise, as there was a judgment out against him. James Wilkin, member of the firm of R. Wilkin and Co., corroborated the previous evidence. John Shackleton, clerk in Mr Btringsr's offioo: Was one of Iho attesting witnesses to the bill of eale. Road it over to the plaintiff, from beginning to end. Head ib in a loud voice because plaintiff was deaf. Believed plaintiff heard it. Cross-examined : Plaintiff's wife was not present. Mr Cunningham was. This was tho case for the defendant. Mr Stringer submitted that his client was justified in the action he* had taken, and quoted a judgment of Mr Justice Williams, in tho case M'Leod v. Reev«B, " New Zealand Jurist," on tho point whether or not there was reasonable and probable cause for tho action t*ken, and whether or not there was malice. Ho quoted Hicks v. Fulkre&n, 51 "Law Journal, 1 ' Q-B. 268 j JBussoll "Ou Grimes," vol 2, page 147. Mr fisher replied. Hia Honor was of opinion that on tho whole tho judgment of the Court must bo for the defendant. So doubt Messrs Wilkiu had advanced to tho plaintiff in order to enubta him to carry on his business. It was reasonable for them to consider his closiDg his shop and removal from tho premises, without giving notice, a ground for belioving that he had converted the c*rt, &c, to hie own use. Whofber the conversion amounted to larceny or not was a fair question of doubt for a laymsn, if not for a lawyer. r Jho defendant had taken etepa to dicover what justification there was for the removal of the urlinles, . Further enquiries might have satisfied him, but he had taken a reasonable amount i of trouble. The fact of his consulting a lawyer was a proof of bona fides. In adopting Mr Stringer's 'opinion ho had still further proved his bona fides. Tho plaintiff had brought this trouble upon himself by not letting Moßsrs Wilkin know where ha was. It appeared from tho 6vioienc3 that as saon as the true state of the fact was ascertained, the plaintiff was released at the earliest opporutnily. Verdict for defendant, with coetß, £30 7s. The Court rose at 3.15 p.m.