DISTRICT COURT.

Temuka Leader, Issue 2021, 18 March 1890, Page 4

DISTRICT COURT.

Timaru—Friday, March 14th. (Before His Honour Judge Ward.)

ACTION FOR DAMASES. 0. Bishop v. W. Ackroyd, claim £IOO damages for false imprisonment. Mr Perry for plaintiff, Mr Hay for defendant.

The case was heard before a jury of four—L. Clough, G. Findlay, T. Henderson, and J. Broadhead.

The following is a narrative of the events on which the claim is founded, as datailed in the evidence given on Friday, which we take trom the Timaru Herald. Ihe plaintiff, a settler of years standing at Winchester, where he latterly had been doing business as a carrier,

finding he could not make a living there determined to leave and make a fresh

start in Dunedin. On the 13th of August last he sold off everything he had, including his furniture, by auction, the sale being advertised in the usual way, w'th an intimation that he was about to leave the

district. Part of his possessions were a horse and cart, over which there was a bill of sale for £2O, and he arranged with the holders of the bill that these should be sold and the auctioneers pay off the loan from the proceeds of the sale. He

also paid a few small Winchester accounts, by orders of the auctioneers, given before

the sale. The things did not sell for as much as he expected, and when he went to settle with the auctioneers on Monday the 19th, he had only £27 odd to get ; besides this he had £5, making £32. He owed £39 to various people. Four of his

creditors were in Temuka, W. Ackroyd, £ll 16s, J. W. Miles, £lO odd. W. Biyth, £4 7s 6d, and J. Brown, 15s. On leaving the auctioneers he me*- Miles and told him he had got the auctioneers’ cheque and that ho was going to settle and go to Dunedin. He said he could only pay 10s in the £, and Miles said he would be

content with that if the others were. Bishop next saw Ackroyd and asserts that he agreed to accept 10s in the £ ; Ackroyd says he agreed to accept what the others did. Bishop next saw Biyth and Brown, who held out for 75 per cent. All four

creditors then met under Brown’s

verandah, and when Bishop joined them they all demanded 15s in the £. Miles was then called away. Bishop said ho could not pay that, he would have nothing left to take him to Dunedin if he did; they must take 10i or nothing. Brown told him they would have the money or would get a special court and make him pay. Bishop

left them, vexed and excited at what ho considered thsir hard treatment of an old customer, went to the Star hotel, and asked the proprietor, Mr Ang'and, for a horse to ride into Timaru out of the way of the special court., and, he told the Court to consult a solicitor. Mr Angland refused to let him have a horse. Bishop

then asked if lie could go up stairs and lie down, was told lie could do so, andwentup and locked himself in a bedroom. (Some time before this, but wheo was not brought out, he bad given £2O to Mr Lee, another

hotel-keeper, to take care of for him.) The next stops in the proceedings were chiefly related by Mr Salmond, solicitor, and two officers of the Temuk> Court. The four creditors went to Mr

Salmond and instructed him to prepare a smnracna for each. Mr J. T. M. Huy hurst, a Justice ot the Peace, came in, having been previously spoken to by one of them, and he haying heard evidence that the

debtor was about to leave the district gave permission for the summonses to be made returnable at once. Th<y wore made returnable at 1.30 p.m. the same day. Mr Salmond took tha summonses to Mr Morton, Clerk of the Court, who handed them to Geo Levens. assistant b«il ; fT for service. Levens without much difficulty found Bishop in the Star Hotel locked in a bedroom. By looking through the keyhole lie saw him sitting on the bed smoking, As Bishop refused to open the door or to answer when spoken to, Levens fetched the two creditois, Ackroyd and B'yth, to be witnesses to the service, and after fruitless demands for the coor to be opened he thrust the summonses beneath the door, stating what they wore. The others looked through the keyhole and saw Bishop. Ackroyd offered to break

open the door, but Levens told him it was

not necessory. The bailig returned to the couit house and swore the affidavits of service, just before half past one. A

court was formed, Mr J. T. M. Hayhnrat and Mr A. M. Clark on the bench, the cases were called, Mr Salmond appearing in each case; the debtor did not appear (he swore that ho took no notice of what was said through the door, and did not touch the summonses), and judgment was given by default in each case. Mr Salmond then asked for judgment summonses to be issued immediately, and this was done. The court did not adjourn and the jusdees remained about the court till ihev

should bo served. After his case was beard Ackroyd went to the Star hotel and

, persuaded Bishop to come out, saying he had better go to court and save expenses being run up. On their way they passed Ackroyd’s shop and after a few remarks about the accounts, Bishop told Ackroyd

he would pay £6 then, Ackroyd asked for £7 but Bishop refused to give more than £6, He paid tho money to the c ! erk. and Ackroyd told the latter to give him a receipt for it, naming the amount. While they wore at the shop the bailiff served the judgment summonses, and they we.it to the Courthouse at once. 'lhe Magistrates resumed their seats and the cases were called in order, Miles’s case first. In this

case, aa evidence of ability to pay, Mr Montgomery, one of the auctioneering firm, proved that he had paid Bishop £27 that

morning. This evidence whs not repeated in the other cases. The debtor refused to answer questions us to his means, but admitted that he was going to Dunedin. Orders were made for payment of the amount claimed and costs, in default

terms of imprisonment varying with the amounts sued for—in Ackroyd’s case, six weeks; Miles’s, four weeks; Blyth’s, two ; and Brown’s, one week. Nothing was said about the £6 paid to Ackroyd.

Bishop did not mention it, nor did Ackroyd, The latter swore on Fiiday that he had not the slightest recollection of receiving that amount or any knowledge of it until the evening, when his daughter told him Bishop had paid ‘ £6; on the other hand Bishop swore positively that Ackroyd not only knew ho paid it but asked for £7, and another witness, Whitehead, Ackroyd’s claik, swore Ackroyd in-

structed him to write tho receipt and named tho figure. Nothing being said of the payment to the justices the order was

made for payment of tho amount named 1 in (ho original summons. Nor, according

to Mr Salrnond’s recollection, was any evidence given on the second hearing of the debtor’s ability to pay in full after the hearing of the first summonses, no evidence of this kind at nil was given except in Miles’s case. The nature of the judgment orders was explained to I lie debtor, —that he must pay at once or go to gaol, when ho mid he would cot pay, would go to gaol first. Orders of commitment and wamnts were then made out. Bishop was arrested in Court, taken to the lock-up and searched, and next morning was transferred to the Timaru gaol where he was detained six weeks on the Ackroyd warrant. Ackroyd sta'ed that he did not, when he heard the orders made, understand that his debtor must go to gaol for six weeks if he did not pay. In the evening, learning that this was so, he went for Mr Miles, and together they went to try and get Bishop released, but being told they could not unless they paid the other two claims and all costa, they said they could not do that. Ackroyd was asked if, as he desired to get Biahop released at first, he tried to release him when the next longest term had expired, and so save a fortnight’s imprisonment ; he replied that he did not move in the matter.

Mr Perry in opening his case to the jury asked them to bear in mind that the terms of imprisonment were eyident’y fixed in proporlion to the amount of the several claims, and that the term in Ackroyd’scase was made the longest though he had been paid half his claim and said nothing about it. He pressed upon their attention the harshness with which his client had been treated. Bishop did not want to cheat his creditors. If he had, he could have done so by filing, when,instead of 10s in the £ which he was able to offer by selling everything he had, they would have got nothing at all. His Honour would direct them as to questions of the law, but he would have to submit that the proceedings that were taken were wholly idegal, and consequently Biahop was illegally imprisoned. If His Honour directed that the imprisonment was illegal, the question they would have to consider was how much damages should be given, and he hoped they would bear in mind the manner in which the defendant had treated an old customer, and award a substantial amount.

Mr Hay said (hat so far as the legdPy of the proceedings was concerned ho would have to contend that they were quite in order, and that as the whole of them wero conducted by the court his client must be hold blameless. He pointed out that there was no evidence that his c iont was in any way active in ‘ procuring’ the imprisonment. He only sought to recover his claim, and if Bishop had been willing to pay, even at tho last moment, he need not have gone to orison at all.

After hearing the evidence, the couit adjourned at 5.15 till 10,20 on Saturday morning. Counsel wero to endeavor in tlie meantime to agree upon the issues to be submitted to the jury. Saturday, March 15.

On the court resuming it was agreed that the issues to be put to the jury should be : (1) Was defendant aware when he obtained the order for imprisonment of plaintiff that the sum of £6 had been paid by the plaintiff? (2) To what amount of damages is (he plaintiff entitled, if any, assuming that he has a real cause of action ? Any other questions of fact arising during argument to be setilod by the jndgo from Ins notes. Defendant to move for a nonsuit or judgment for defendant.

Mr Hay then addressed Iha jury ou the questions submitted to them. Addressing bimself first lo tho question of damages ho submitted that whatever imprisonment plaintiff suffered he brought upon himself. The order was not absolute. He could have avoided it by paying the money, and he had plenty of money to pay Aokroyd's claim. He could have paid all four creditors in full had it not been for the coats run up through his own action. It was his duty as an honest man to pay them in full if they demanded it, even though it left him without a penny. The order for imprisonment was made on account of his own perversity. He would make no explanation, no offer to the Bench, refused to tell the justices what his means were, and they had power to send him to gaol for that alone. -That was the cardinal point in the case, that the imprisonment was brought upon him by his own obstinacy. He would forestall his learned friend by answering the suggestion that the creditors treated Bishop harshly. They had only acted as business men seeking to recover amounts due to them in a legal manner, and, on the other hand, Bishop treated the legal processes with contempt, sat there smoking and would take no notice of the summonses, Axkroyd again, so far from being harsh, was the most easy of them all. He first agreed to take 10s iu the £; and he went and persuaded Bishop lo go into Court, and afterwards' tried to get him released from custody. On the other issue, the payment of £6, he asked the jury to belisve that Ackroyd. spoke the truth when he said he did noil know the £6 had been paid. He might' not have been sober that day, and may haye made some blunder, and left the whole thing thing to his clerk, telling him t« give the receipt, if the money was paid. As to the extra two weeks’ imprisonment, chat was due lo Bishop’s own dogged peryersity in refusing to give the Court any information. All that the defendant had done was to move an ordinary court of law. Finding he could not get his 15s in the £, he put the law in motion, and left it to work out the matter in its own way, and if there really was any defect in the management of the matter that was not the defendant’s fault. If Bishop was entitled to anything it was a very small amount indeed.

Mr Perry followed. Pointing out that tho jury must assume the imprisonment was illegal, he asked them to consider nil the circumstances indicating harshness on the part of defendant, and on this consideration to award substantial damages. His client saw the creditors, made them an offer which they declined and at once put the law in motion against him, as against a person who they knew was intending to leave the district with the fraudulent intention of evading payment. There was no reason to treat the plaintiff in any other way than as an ordinary debtor. He was only going to Dunedin, and he could have been sued there in tho ordinary way if necessary. If he desired lo cheat bis creditors oil he had to do was to file, when he would have been sure of £25 worth of furniture, and after paying expenses (hero would have been nothing at all for tho creditors. They treated him as a dishonest man, uud iu their greed

said in effeol ; “ You m«y go out a beggar, but we must have our money.” It was surely a case for substantia! damages. He next came to the worst feature of the case—the reason why Ackroyd was proceeded against—the fact that he received £6 on account of his claim, and deliberately held his tongue about it while on order was mode for the imprisonment of his debtor because he would not pay the amount. Mr Perry examined tha evidence ns to the payment of the £6, and criticised Ackroyd’s denial of his knowledge of the fact that the money had been paid. He then referred to defendant’s neglect to release plaintiff when the { shorter warrants had expired, and concluded by asking for substantial damages. His Honor directed the jury that, in assessing the amount of damages the most important point they had to consider was whether the defendant was aware, when he obtained the order for imprisonment, that half his claim bad been paid. He read from his notes the evidence on this point. It was, His Honor resumed, entirely for the jury to measure (he damages plaintiff was entitled (o, and if thsy found the term of imprisonment was prolonged by the defendant’s suppression of the important fact of the payment, they would be justified in awarding substantial damages ; if l hey found it "was due to mere irregularity ou the part of the justices, the damages should be considerab'y less. The jury retired at 11.45 and returned in 20 minutes, with the fieding that defendant did know that the £6 bad been paid, and assessing the damages at £4O. Legs! argument was postponed till Thursday, April 3rd, and tfee Court adjourned till that date.