SUPREME COURT.

Wanganui Chronicle, Volume L, Issue 12145, 31 August 1908, Page 2

SUPREME COURT.

McLACHLAN v. WHITE

JURY FAIL TO AGREE

William McLachlan, seaman of the barquetine Alexa, claims from James "White, master of the same ship, £70 damages for malicious prosecution and false imprisonment. Mr G. Hutchison appeared for the plaintiff, and Mr L. Cohen for the defendant. The following jury of four was empanelled, consisting of Messrs F. H. Hathely (foreman), F. W. Lowe, C. S. Hawkins, and G. J. Hairis. Mr Hutchison outlined the plaintiff's ease and called William --McLaehlau, of Wanganui, A.B. seaman, the plaintiff, who said ho had been at sea for 15 years, and is a member of H.M. Naval Reserve. Shiped on the barque Alesa under the defendant at Sydney, and signed articles. The ship arrived in Wanganui on 31st July. The men had a grievance about their food, and they told the captain, and afterwards the Collector of Customs. The men asked for liberty to go ashore to sse about the law on tho matter. Five of the men then went, ashore (with leave) to the police station* and stated their complaint. They were told to get advice. On the same* evening they consulted Mr Hutchison, who told them to return next morning. Next day the mate ordered the men to turn to at 8 a.m., and said all leave was stopped. The men said they wanted to go and see about their case. They left the ship and went ashore openly. The}' saw Mr Hutchison, and then took a letter to the Collector of Customs. Witness was called in after a time, and the captain arrived. The Collector said the men wanted to be paid off as their agreement was broken. The captain declined to pay them off. The Collector stated then that he would communicate with Mr Hutchison. The men waited until 12 o'clock, when the answer was communicated. Witness took a letter for the captain down to the boat, and gave it to the captain. The men stopped on the wharf and were about ~<l o'clock arrested, a'pd taken to gaol. They had had no dinner on the ship, but got some in gaol. "While in /custody witness lodged a complaint before a Justice. Was in gaol until Monday, when the hearing .of the captain's information was heard and same was dismissed. Witness had been in Wanganui since, arid was unable to take another job. Had not go his discharge, nor his wages. He claimed £70 for what had occurred. To Mr Cohen: Witness signed on on 10th July,' the boat leaving the same day. He signed for six months from Sydney to any port in the Pacific. Was discharged previously from the Calverdale on the 20th January, 1908. Came out on the Orontes from London between January and July 10th as a passenger. Was not an ordinary passenger, and was on the articles of the Orontes. Did not desert from the Orontes. Witness was with iierg when he complained to the captain. They might have been three or four days out. Berg. told the- captain they were. short of food, and wanted more butter. The captain gave witness a pound of butter. During the voyage he did not complain to the captain about the food, but did so to the cook. The men on arrival here asked that the Collector should be sent for. On his arrival they made a complaint to him about the milk, bread, butter and the meat. The Collector said nothing. Before the Collector came on board the men had knocked off work. The witness did not Remember the Col-lector-saying the men had no ground for knocking off work. Next morning at 8 o'clock ho told tho mate they wanted to sea a lawyer, and" did not -turn to work. The men left the ship about 9 o'clock. Witness did Iriot Roto the captain for Heave that morn- ' ing, as 'the mate had said that leaye was, stopped. ■ r Tho captain did not stmy long' at the Collector of Custom's officja ;It was- nearly 1 o'clock when ■tntnoss wentback/to the ship. An informal idn for perjury had been laid ■ againsti the .cook ~ by' Berg, and the i-- Magistrate refused.to commit him. An information•/ against the captain about f the^;fopd; hjjci -«;beeii, dismissed. Witness ;'v i.'.clai-trira > hi^Ydischargo as, the. captain had .broken his agreement. He claimed his discharge in the shipping office— hot until then. Ths captair. had given him no chance to do s> before. Plaintig had not been back" to the ship since tho Saturday he left (Ist August). He didn't know whether he was on the ship's articles s-ill—lie left that to the law. To Mr Hutchison: The men got plenty of water. Ho was not able to eat the beef. There was very little fish, dried ap/oles, vegetables or'bread. Witness complained about'the tea himself, which was poor,', There was not sufficient of any of the foods mentioned. Witness got to Sydney from "London by signing on at Is per month. Tt was not the same as being on articles. There was no r'snectiou-on his .character anywhere.:. ■• ■, . /■ - To Mr Cohen: He signed the .articles which contained a provision foi\ food "sufficient without waste." ' v ' To Mr Hutchison: The men did not have, enough of the foods mentioned on the' list. Did nob gea what the captain and his wife had to eat. W. F. Dickie, Collector of Casfcoms. at Wanganui, stated that the captain and men attended at the office, and witi;e&3 told the captain of the men s complaint, and asked him if he would eettlo the matter by discharging and paying them off, and the captain absolutely declined. The witness then . said he would not adjudicate in the matter. To Mr Cohen: Witness went on tho Alexa when she arrived on the Friday He met the men and the captain in the cabin. The men complained generally of insufficiency of food, and referred to the bread, butter, miik aud fish. Witness told the men that the breTcl was all-right. To Mr Hutchison: A man cannot get ■ his discharge until he has received his wages. Ho gathered from tho men I genorally that the food supply was inj suffiicent. The Court here adjourned for lunch. On the Court resuming, Mr Hutchison called INicholas Berg, A.B. seaman on the Alexa, who gave evidence corroborating the plaintiff's statements as to the insufficiency of the food and complaints , mado by the men "to the captain. The: , mate had told witness that the ea.p- ---" :' ■ tain said the men were to 'tay <-n board on the Saturday. He .went to if \tho Customs Office about 11.30 a.m. >- on that day with the other men, and ;, Paw tho Collector and the captain. The c Collector advised the captain to discharge tho men. To Mr Cohen: While at Sydney Wharf the food was all right, tin the fourth day out he complained to the captain telling him the meat was rotten, and asked him for some butter. Tho earytain said he might see into things, and McLachlan got a, pound of butter from the captain. During the ) voya go ■ witness did not again complain to the captain. When .near WanJ ganui he complained to the mate. The captain never spoke, civilly to anyone S on the voyage. The men wern not on bad terms with the cook. Witness .is'vcd the cook on the 3rd day out for more butter, but did not ask bin* again during the voyage for more food. Ho wanted to keep peace on board the ship although he and the others wore hungry. Fish were caught, but ho had none as ho was sick and bes'dor-; ha did not like them. Witness first told the captain ho claimed his dls-

charge on the Saturday morning before the Collector of Customs. Witness knocked off work on arrival here because he wanted to see about the food. "Would not work between 8 and 9 a.m. on the Saturday because he wanted satisfaction about the food, and to see a lawyer. He would not swear the Collector of Customs advised tho captain to give the men their dis- : charge. He did not go back to the ship after the Magistrate had dismissed their complaint about the food because he wanted a ship where he could get something to eat. To Mr Hutchison: The copy articles produced by Mr Cohen was not a copy of that which ho signed. There was nothing struck out of the schedules of food in the original put uj> in the ship. The Magistrato had granted »rehearing of the men's complaint. J. Johanscn, an A.B. seaman on the Alexa, stated- he came in the Alexa here., and gave evidence similar to that given by the previous witness. To Mr Cohen: He did not complain to the captain about the food during the voyage. He was hungry on the voyage, and it was no good "going to tho cook for food. He heard the Collector of Customs say on the boat that the bread was all right. Complaints were made about-the meat and milk to the Collector. The mate told him no man was to go ashore on the Saturday without leave. To Mr Hutchison: The mate only . told him once that leave was~stopped. The bread shown the Collector of Customs was not like the bread they had been using—it was better. William Thresenbitz, a German A.B. seaman, said he also came here on the Alexa. Went with the others on shore about their complaint concerning the food. He was present when the captain refused to grant their discharge. When the men went | back to the boat about 1 p.m. on tho Saturday the cook said that by the captain's orders there was no dinner for them. Witness described the food supplied the men on the voyage. General speaking they had nob sufficient food. " To Mr Cohen: Witness said he was on fairly good terms with the cook and captain. He was hungry most of the time. He did nob complain to the captain or the mate during the trip across, as he considered it was no use complaining. He had no reason to think the captain would refuse men leave on Saturday if asked, when he - had" granted them leave on the Friday. To Mr Hutchison: Th& mate was told on the- Saturday morning that the men had not time to finish their business on the Friday, and then the mate went fco tho captain, and returned with the wbovo order. Hans Miller, an A.B. seaman on the Alexa, said lie signed articles in SydPey. Went ashore with the others on Friday and on Saturday was told leave was stopped, but went on shore a.iain with 'tihe othiett men to Hhei hiwyer and the Collector 0? Customs." On. that day the cook told him that lib had orders from the captain to .give the men no food. Witness corroborated the 'previous: witnesses' 'evidence regarding the food. To Mr Cohen: He was hungry on the voyage, but not all the time. He thought it no good asking for leave on the Saturday after what the mate ( had said. He had asked the cook for /milk, and more fish, but could not get .'it:'... Fish was not a luxury, they were always getting it. ' He did not ask for bones as they, got nothing else but bones. Frank Sylva, a boy on the Alexa, said that on the day after the boat arrived the cook only cooked enough for two—witness and another. The 5 food* was bad on the voyage. r. Tof Mr Colien: He had discussed the b case with the men. Was not. friends > with cook. '. '■■;..: bi _ .■; Andrew-'McFarlane,.ordinary seaman -v on hoaTd the Alexajcorroborated■;-tlie'' a: •;.previous" ■witness';' evidence. :':';'^ v. ■. fc V. H. Wyman, Deputy Clerk'of the s Court at Wanganui, produced an in--1 formation laid by White against Mc- - JJachlan on Ist August, for" being ab--1 sent without leave. AVitness was pre--0 sent the information and a warrant 1 were signed/ The Warrant was given t to' tVe captain to'give" to the police. s : To Mr Cohen: Had told the captain I %; wire back at 11.45 a.m. for the in- - ! formations. Witness went into the - Magistrate with the captain, and reII membered the latter saying the crew - had been a quiet one. p To Mr Hutchison: The ordinary . course would be to issue a summons. c The Magistrate, might direct the. issue b of a warrant. Informations were generally taken on oath by him, although t it was not. necessary except for those 0 recmirmg a warrant, c David Wilson, police constable, Wan- ;. ganui, stated that he with two other - officers went to the wharf and arrested t the five men. . y . -Mr Cohen, for the defendant, con- .. tended that the plaintiff had nob prov- .. Ed that the captain had no reasonable* •-• or_ probable cause for what he did, and s that there was s no 'evidence of maliec The facts; given by the men showed 3 that the captain had a good ground for d his;actionin the men leaving the ship as they' did. The defendant gave. the t men leave to go and see a lawyer to d fix up their business. The captain's c order invited the men to go to him and ask for leave. He submitted there" !. was no case to ;go to the jury. n His Honour said that he would red serve leave to Mr.1 Cohen to move for s judgment for the defendant, d Mr Cohen then opened for the ded fence without addressing the Court, )- and called the defendant, n James White, master mariner, of the c barquentine Alexa. Had twelve years' experience at sea. The ship on tlrs 10 voyage was Provided the same as ;-. usual. There was no ~differenc3 in the n food given to him1 and his wife and to i-~ the men. The meat provided was pur- -- chased in Wanganui and Sydney. Witid ness had a complaint from Bergs about ie the butter. Witness haudod out another pound of butter. He had no fault ?fc to find with his crew who were a Quiet is lot. of men.. On arrival here witness >n wenb ashore and came back about three n- o'clock and found"work suspended". Tho men made a complaint that they were-, I;, not provided with sufficient butter and ii- fish. They said they wanted to see tho collector of Customs. He was sent ie for _ and the men repeated their comig plaint to him. The Collector said ho n- saw nothing the matter with the bread ts produced, and saw no reason for the lie men knocking off work. ' Afterwards p- witness ordered the mate to turn tho 11 men to and' after that the .men ono by vo orte came anc i asked to go ashore, and n. witness gave them leave. Nexb mornid ing at 8 a.m. ho told tho mate in lie turn tho men to and told him to tell iy- the men they must not go ashore Avithout leave. The crew after that were <vv not available for discharging the ship, lie Witness went ashoTe and afterwards lie Paw. Mr Cohen. Defendant rame to the ,{.. Court about 11 o'clock and asked for >j\ the:.warrants and had to wait for a to time and then came'-baok at 3.1.45 a.m. of and went before the Magistrato to he swear the information. He told tho -n- Magistrate the men had knocked off n- work an hour after arrival. Tho Maghe istrate said ho thought Wanganui spoilt no sailors. Defendant told tho Magistrate id the men wero a quiet decent lot. H" c...;l asked for a warrant because he wanted ro tho men on the shin, and wanted to ill maintain diseinlino. Ho riulH not got a j fi now crew here cither. Ho had never ho had any angry words with a;iv of the T0 men. When he laid tho information ho j '"> honestly believed McLanhlnn was [ ( . s J absent without leave, ard believed fo • s t • now. Defendant had In id tho informaLs- tion and ,"ot the warrants before he ro-

ceived a letter from Mr Hutchison. aa When he saw tho collector of Customs on the Saturday morning he refused to pay the men off. Two informations against him re insufficient food had been dismissed. To Mr Hutchison: Witness knew tho Magistrate had granted a re-hearing of the two informations against him. He swore the informations against the men after 12 on the Saturday. Mr Dickie did say he had received a letter. The Collector did not state any ground for the men saying they wanted to be paid off He took 30Ibs of butter on tho trip and there were 12 persons on board. There were no biscuits on Iward. There was sufficient other food. He made an entry in the log at the time the men were absent without leave after he had issued the warrants on the Saturday. To Mr Cohen: He had never heard tho men complain of any breach of an agreement. The Court here adjourned at 5.45 p m. until 10 a.m. on Saturday. On Saturday the above action" for £70 damages malicious prosecution and false imprisonment was proceeded with. Mr Cohen, continuing for the defence, callad Walter R. Fitten, of H.M. Customs office, who certified to the correctness of the produced copies of the articles and agreement under which the men shipped on the Alexa. The printed matter struck out,-in tlio copies of the articles was not in ths original. The articles were Australian ones. There was no mention of butter in the articles. R. L. Stanford, S.M., at Wanganui, (stated he'had informations laid by defendant against the men before him on Saturday, istAugust, at about 12.30 p m VerYY cr Y little was. said. The captain said the men had left the ship. Witness remarked that sailors were wandering stare. The captain statsd ho wanted his ship discharged. He stated tho men were tho quietest he had shipped and not show any feeling of anger against them. He (the captain) did not know why they had left the ship. Witness issued the warrant on what he thought good cases. Heard two cases re the food and dismissed them on the merits, giving a certificate. He re-instated-the cases on application because he knew the matter would come before the Supreme Court, an order nisi for certiorari having been applied for and it was desirablo to place the cases on an even footmg for hearing in tlie.higher Court. To Mr Hutchison: When he issued the warrants he had nothing before him.except the statement of the defendant; It was an ex parte application. George Wood. master mariner, was mate of the Alexa on this trip. He had been at sc-a for 42 years, and cne year on the Alexa. He corroborated the evidence of the. defendant as to what had occurred on the Saturday morning. Sailors never went ashore without asking for permission. Sea-| men's wages were higher in New Zea-; land than in Australia. In New Zealand £7 per month was paid, in Ausi tialia £5 per month ,for coastal wages. Witness had meals with the captain and his wife. The food was the same as usual. The Alexa was a very well found ship. He had heard no complaints whatever on the triT>_ across. There had been no trouble at all. To Mr Hutchison: He had paid £5 to £5 10s per month as wages on intercolonial boats. Had paid £7 per month on coastal boats in New Zealand, but had not shipped a man at this rate for two years.- Was unaware regular rate on vessels from New Zealand to Sydnoy was £4 10s per month. He had known more paid. The captain and his wife had cocoa in their cabin. Witness saw what food was being cooEed several times. He did not know till Saturday that the men's grievance was about the. food. Did not .say to the men that all leave . was stoppe.dyf but ilifvt no. one^ .. must, .go';;.ashore; without leave .:-,''T'':"■,■''' -V ■ .Georgoj.Brp^hin'gs^djiie.had'been at ■ sca^.for^Si^:^ . Was cook: <jtiitbte Alexa.; / TBb "feat !w?is; a well-fourtd one. v The captain'.andjhiswife were supplied, from the same pots' ; as the men. ;X7Witness,:had heard"noV complaints except aboivt the butter" and the fish. Berg asked for more, butter and got it. He never complained again. McLachlan complained about tbo tea and witness made some.fresh tea. Witness had been charged, with perjury, but the case" was dismissed. He was telling the truth now.: The crew wero a decent lot and he got on well with them. . . To Mr Hutchison: There, was milk and biscuits on board—the latter were not used. The captain and mate had cocoa, which was in the cabin. He had served them with it. This concluded.the evidence and Mr Cohen then submitted that there was no evidence as to false imprisonment. Defendant was not responsible for the exercise of the Magistrate's; jurisdiction in issuing a warrant. There was therefore no evidence for the question malice to go to the jury. Defendant's evidence showed this, the captain honestly believing • that what he did was right. ;•- . " .- . . Mr -Hutchison, replied, traversing the arguments of •counsel for defendant. He contended; that the'-Magistrate's, action was not judicial : .The' information was one"for_ absence without leave, and sufficient excuse/and a warrant was issued without hearing any evidence: Mr Cohen then addressed the Court for the defencs, after which His Honmir reviewed the facts of the case. He directed the jury that there was no action for false imprisonment. The warrants had been issued quite regularly on a proper information. Plaintiff must prove tKat the defendant had no reasonable or probable cause for belieASing that the men were guilty of absent- ' ing themselves without leave and with- ] out sufficient cause, and that he acted maliciously. Tho jury were asked to decide the following questions: (1) When the defendant laid the information against tho plaintiff did he reasonably believe that tho plaintiff Avas guilty of the offence of being absent from the ship without leave and without sufficient cause? (2) Did the cap'ain, in laying the information, do so from some malicious or indirect motive? If so what damages was the plaintiff entitled to. The jury retired to consider their verdict at 1 p.m. and returned at 4.20 p.m. and said they w?re unable to agree. His Honour' said that if the jury after three hours' retirement, were unable to agree the Court could take r\ three-fourths verdict, and he asked the jury to retire again. As they weje retiring tho foreman (Mr F. H. Hatherly) re-marked that they had not yet got to tho three-quarter stage. "At 5.30 p.m. the jury again returned, the foreman statins that they could not arrive at a three-fourths verdict. There was a, deadlock, and. no orospect of agreement. His Honour then discharge:! the jury and stated that ho would hear out the legal argument, for a non-suit applied for by defendant's counsel. Mr Hutchison, for plaintiff, having not yet relied to the points raised by Mr Cohen. He would take tho argument later on.

SATURDAY, 29th AUGUST.

REXDALL v. BLAKE. On resuming at 10 a.m. the counterclaim filed by the defendant'in the case of Rondall v. Blake was mentioned. Mr Hutchison for plaintiff said he could not consent to judgment. Mr Dalziell said a defence had not been filed, and suggested the claim should be heard in Wellington. After some discussion it was decided to take, that course. His Honour refused Mr Hutchison's application for a stay of proceedings in the nonsuit. _