December 9.

Tuapeka Times, Volume V, Issue 259, 16 January 1873, Page 6

December 9.

Aitken v. Haynes.— This was an action for damages for malicious prosecution and imprisonment. It was set forth tbat on the 12th of June last, the defendant, Thomis riaynes, livery-stablekeeper, Dunedin, did feloniously, maliciously, and without reasonable or probable cause, swear an information before the stipendiary magistrate at Naseby, charging the plaintiff, William Aitken, with having Btolen nine horses, whereby defendaut obtained a warrant, and had Aitken arrested by a constable, taken to the gaol at Naseby, and locked up. On the iollowing day plaintiff was taken before the Magistrate's Court. Haynes gave evidence against him, but the information was dismissed, and plaintiff was set at liberty. Defendant denied the several counts in the declaration. 1 Mr Barton, with Mr Chapman, appeared for plaintiff, and Mr Smith for defendant. Mr Brewer, judge's associate, produced telegrams. The defendant in this action was examined at a former trial, at which the telegrams now produced were used. Defendant then admitted his signature to some of them. There were also telegrams signed "Pritchard," blithe could not say that defendant acknowledged having received them. The document produced was signed by Mr .Robinson, JK. AJ., at Naseby. Wil.iam Aitken, plaintiff, said in June last he was driving a team for Koddam. He bad been driving for* him for six years and eight months. On the {Saturday before leaving town he saw lioddam for the last time. Jn tbe afternoon of that day he drove out of town for Naseby a timber waggon and a team of nine horses. One of the horses was his own property, aud so far as he knew the others belonged to Boddam. On the Friday after starting he arrived at Pigroot, and in the evening he met Haynes and Pritchard and another. Pritchard told him in Haynes' presence that he had come up to take possession of the team, and witness replied that he would flrst go to town and see Koddam. Pritchard showed him a document purporting to be a bill of sale. He told Pritchard that there were horses in the team that never belonged to Koddam. Pritchard replied that, if such was the case, he would have the money back or put Aoddiim in prison, lie saiu to Pritchard and Haynes that he would be back from town by Monday's coach, and that be would not give up possession until he returned. Pritchard then a (vised defendant not to move in the tnattor until the Monday. Keturning from town, and when ahttle this sideof Naseby, heovertook what had been his team. A man named brabam was driving it. He asked for the whip, and at the same time got on tbe shafts. Haynes objected to give up possession, remarking that if witness had been civil at Pigroot lie would have told him more about it. That night he slept at Naseby. In the early morning he heard the sound of the bell used with the team, went in the direction, found the horses and led them to the stables That day he met Hay ne3, aud was told by him to clear out, as a warrant was out for him. He did not go away, and on the next night he was arrested iv David Miller's tent by a policeman, on the charge of horse-stealing. He was taken to the gaol at Naseby aud locked up. The following day he was taken before tne mngistrate, and defendant appeared against him, and asked to have the case postponed. He was let out on bail. On the Monday following the c<*se was gone into. Haynes gave evidence against him. He, however, was dismissed. He called two witnesses for his defence to whom he subsequently paid L2B. He employed an agent to conduct the case; and paid him L 5. The arrest, charge, and subsequent proceedings he felt were a dibgrace to him and a B jurce of annoyance. Cross-examined : He did not say to Pritchard, in another case, "Take care of that roan horse, I lent Koddam the money to purchase it." V\ illiam Thomas Haynes, defendant, said the telegrams produced passed between him and Pritchard. On the morning plaintiff left Pigroot for Dunedin Pritchard told him to take charge of the team. He then asked plaintiff to show him the way to yoke the horses up. Aitken replied that Anderson would show him, and at the same time observed, " Take care of the roan horse, as I lent Koddam the money to pay for it." He did not overhear any conversation tbat morning between plaintiff and Pritchard. He did not hear Pritcharu say, ." Tom, wait until he comes' back from town." He did not hear plaintiff pay, " I am going to town, aud will not give up possession untd I return again." He fully understood that p aintiff left for town knowing that he was to take charge of the waggon and team. rJef ore leaving, plaintiff took his bedclothes out of tbe waggon On the way from Pigroot to Naseby plaintiff overtook the waggon. Graham was driving it \at tbe time. Plaintiff jumped on the shafts, and Kobert Aitken said, " Knock Graham down and take the whip I rom him." After some other words, plaintiff got down from the waggon and demanded the whip, and witness refuse L Plaintiff then went away. He camped about a mile from Naseby, and at 11 o'clock Baw the horses for the last time that night. On Wednesday morning he found them in two stables, locked up, and then w«uc to the sergeant of police, nnd that officer weut with him to one of the stables, but the owner refused to open the door unless the person who stabled the horses gave permission. They then went to the other stable, and were told who stabled the horses. In the evening he consulted a lawyer, celling him that the horses were placed ia his charge by Mr Pritchard. that they were in certain stabloo, »»/i that he feared they would be driven away thatniguv. He was advised to commence proceedings. A warrant was obtained by the lawyer, and given to the police. On returning from the Court, he met Aitken, and said, " You are very foolish | for locking up the horsea : there is a warrant out for you, and 1 don't want to see you looked up : you had better clear out." Aitken did not reply, and he did not see him again until atter the arrest. He did believe, wh*n at the Police Office, that plaintiff had committed a felony, but he did not wish him to suffer the consequences. There was no ill-feeling between him and plaintiff. Had plaintiff been committed, he would have become bondsman for him. bib proceeded in this matter on behalf of Mr Pritchard, simply in the capacity uf a servane. He did not know what plaintiff was going te town for when he lett Pigroot. He thought plaintiff had made a mistake in not goiug on with the waggon. He did not make tbe arrest with Jrritchard's orders or knowledge. Before the warrant was grauted, be

said to the solicitor that Aitken formerly had charge of the horses. He was aware that Pritcbard had offered to continue Aitken as driver. David Andercon, carrier, said he saw defendant at Pigroot some time in June last Pritchard was present at the time. A fter all that had taken place, and Pritchard had gone away, Haynes proceeded to yoke up the horse 3, remarking, " What is the good of Bill's (meaning Mtken) going to town " He replied, " Why did you not say that before." He took plaintiff's blankets from the waggon and placed them in the waggon he was driving. That was after Aitken had gone away. Cross-examined. : He took the blankets because he did not think Haynes wanted them. He could not give another reason for taking them. Aitken understood that he was to take the blankets on to the Hogbura, where Aitken would likely overtake him. Edward Devine, coach-driver, said, in June last he drove for Cobb & Co. During that time Pritchard got on the coach at Pigroot. He remembered a conversation which took place over night, but could not suy whether Haynes was present. It took place in the bar of the Pigroot hotel. Pritch&rd asked him if he had room for Aitken in the coach the following morning, as he wanted to see Hoddam. He did not think Haynes was present when the coach started in the morning. Mr Gordon, Deputy Registrar of the Court, said the document produced was received by him from the Resident Magistrate's Court at Naaehy, and contained depositions in the case of Haynes v. Aitken. Counsel for defendant objected to the document being put in as evidence, on tho qr«uud that its authenticity had not been proved either by the Magistrate or Clerk of the Court at Naseby, but his Honor overruled the objection. This closed the case f -r the plaintiff, and no witnesses were called for the defence. The learned counsel then addressed the jury, and his Honor summed up, directing that it would be for the jury to decide (1 ) Whether the law was put in motion without a reasonable and probable cause ; and (2) maliciously, before they could find a verdict for plaintiff. M, on the other hand, they were satisfied that the evidence bore out the assumption that there was a reasonable and probable cause, aud th it no malice was shown, then t' ey would find accordingly. The jury retired, and after an absence of forty minutes, found, a verdict for plaintiff for L 33 10s. The Court then adjourned.