WAIRARAPA DISTRICT COURT.

Wairarapa Age, Volume XXXII, Issue 3200, 28 May 1909, Page 3

WAIRARAPA DISTRICT COURT.

■ QUARTERLY SESSION. ACTION FOR ALLEGED FALSE IMPRISONMENT AMD MALICIOUS PROSECUTION. £2OO DAMAGES CLAIMED. The Quarterly Session of the Wairarapa District Court opened at Masterton yesterday before His Honor Judge Haselden. Herbert William 13uttrev, inebriate specialist, Masterton, claimed the sum of £2OO fruin John Valentine Gordon, of Masterton, chemist, as damages for alleged false imprisonment and malicious prosecution. The statement of claim set out as follows:—!. On March 31st, 1909, the defendant filed a plaint at the Magistrate Court, Masterton, against the plaintiff to recover the sum of £5 Os 7d, balance alleged to be due for goods supplied. 2. The defendant therefore issued a warrant for the arrest of the plaintiff, and plaintiff was arrested and imprisoned thereunder. 3. Plaintiff says he was arrested and imprisoned without lawful justification. 4. Plaintiff says that the warrant purported to be signed by two Justices of the Peace, and that such 'warrant was issued without jurisdicton and was bad on the following grounds: That the Justices had no jurisdiction; that the warrant did not show the Magistrate was unable to nign ; the warrant did not purport to be ine joint act of two Justices; the warrant directed the arresting officer t.o bring plaintiff before "us, a Stipendiary Magistrate," whereas neither tilled that capacity; the Justices had no proof before them on which to issue a warrant; that the affidavit in support did not disclose justifiable grounds of arrest; That the # alleged affidavit was a nullity for want of jurisdiction ; that the warrant although purporting to be signed by two Justices of the Peace does not show they were acting together as required by the act; that the execution by the arresting officer was illegally carried out, as he failed to bring the debtor before a Stipendiary Magistrate having jurisdiction; that defendant authorised the arrest of the plaintiff. In the alternative plaintiff alleged that even if otherwise justified in the arrest it was done wrongfully, falsely, maliciously and without reasonable and probable cause. The plaintiff therefore claimed the sum of £2OO. Mr C. A. Pownall appeared for plaintiff, and Mr T. Neave, of Wellington, for defendant.. The jury was as follows:—John Eldei (foreman), John Judd, and W. A. Home. Mr Neave opened the case by. addressing the Court on points of law which, he 'submitted, would force plaintiff out of Court. Counsel quoted sections ISS and 189 of the Magistrates Court Act, which provided that in actions against Stipendiary Magistrate officials for acts done by them in their official capacity a month's notice in writing must be given. Mr Justice Edwards in the case of Kitto and Wyeth, had construed these sections as extending to persons proceeding under the Act. Therefore in the present case, as no notice had been given plaintiff could not maintain his - suit. Again in substance the action wrs one of false imprisonment, «u;d counsel concluded that part of the act was done by a judicial officer in a regular way. Mr Pownall in reply contended the proceeding was not done in pursuance of the Magistrate's Court Act at all, and further that the Act could not authorise the wrongful imprisonment nor malicious prosecution of any person. Further the affidavit on which the arrest was founded did not disclose specific grounds for the warrant as required by the Act. His Honor, after considerable legal discussion, said he would not at that point give bis decision on the points raised, and he though it better to hear the facts. After Mr Pownall had opened his case ' ) Herbert William Buttrey, plaintiff, gave evidence. He said he conducted a private home for inebriates in Cornwall Street, Masterton, for five years. He held the Cornwall Street property subject to a mortgage of £575, it being worth between £llOO and £I2OO. On March 31st witness had advertised his furniture for sale, intending to leave Masterton for Hawke's Bay for three or four month. The sale was postponed on account of a technical difficulty over a bill of sale on the furniture. On the same day witness was stopped by the bailiff ot' the Court in Queen Steet and informed that a warrant was in the bailiff's hands for arrest of witness unless an amount of £5 0s 7d and £3 costs were paid forthwith. The bailiff took witness round to Mr J. R. Nicol's action mart, on witness' requpst, as witness thought that Mr Nicol'would assist him. Witness had £4 himself, and Mr Nicol offered the bailiff a cheque for the balance, which the bailiff refused. Mr Nicol than cashed the cheque and the bailiff was handed the full amouont in cash. Witness had never reteived any warning of the proceedings and. had only recieved ordinary business accounts. Witness had seen defendant earlier in the da\ and had told him that there was a prospect of the sale being postponed, and witness would give defendant the amount of his account either before-or after the sale. Defendant made no remark indicating that he was not satisfied. Evidence was given by J. R. Nicol, Robert S. Gerrard, C. C. Aitken, M. Foley, and this closed the case for plaintiff. His Honor at this stage said that he though plaintiff had no cause of action on the grounds of false imprisonment. Mr Neave, after a brief opening, called— John Valentine Gordon, defendant, who gave particulars of the account between himself and plaintiff. Witness stated that he sent a demand to plaintiff that if the amount of the account was not paid within a week the matter would be put into a solicitor's hands. After seeing Mr Nicol on the day of the sale, witness saw his solicitor, Mr Logan, and acted on his advice. Witness had been told by plaintiff that the latter was going to South Africa. Witness fully believed the facts contained in the affidavit placed before the Justices, Witness knew that the interept on his father's

mortgage over plaintiff's property | was overdue. By MrPownall: It was after witness saw Nicol that plaintiff told him the sale was likely to be postponed. The affidavit eworn before the Justires by witness was taken after witness was told by plaintiff that he sale was likely to be postponed. Witness thought the warrant was only to lake effect if plaintiff intended to leave the Dominion. Witness' main reason for having the warrant issued was because he thought there were a lot of and there might be little chance of witness getting his debt paid, unless such steps were taken. Witness had the impression that plaintiff intended to slip away to South Africa and not say anything about the debt. His Honor remarked upon th 3 inconsistency of the reasons given for the warrant. Witness, continuing under crossexamination, said he did not wish plaintiff arrested at all unless he endeavoured to evade the debt. Had plaintiff come and said he was hard up witness might have had the process withdrawn. Plaintiff had not attempted to leave up to the time of the issue o_£ the warrant. Witness did not know that 'he issue of the warrant was so powerful a methud of procuring money. David K. Logar., solicitor, Masterton, stated that defendant informed him that he thought defendant was about to leave New Zealand for South Africa. Witness examined defendant carefully on the matters connected with the issuing ot the warrant, and it was on witness' advice that tlie warrant was issued. Witness hirmell was perfectly satisfied on what he heard from defendant that plaintiff was about to leave New Zealand. Later in the day witness was told there was a chance ot the sale being postponed, and a clause in the affidavit was therefore redrawn.; Peter Gordon, settler, ,< father of defendrnt, Herbert Hansen, assistant in defendant's shop, and Orlando N. U. Pragnell, solicitor, also gave evidence. This closed the case for defendant, and counsel addressed the jury. His Honor, in summing up, said as regards the question of what was meant by "about to leave," that it was not necessary that the person should be actually in flight. Regarding plaintiff's financial position, His Honor thought more had been made out of it than the case deserved. The important question was whether defendant believed what he stated in his affidavit, as. if he did not that fact tainted the whole of his case. It was for the jury to say whether plaintiff had this belief, and whether he had reasonable grounds for it. The following issues were submitted, and answered as stated, after a half hour retirement: — 1. Did defendant really believe that Buttrey was about to leave New Zealand to evade payment of his debts? No. 2. Did the defendant take reasonable,: care in ascertainirg the facts which led him to believe plaintiff was about to leave? No. 3. Did the plaintiff receive information on which he could reasonably believe that the plaintiff was about so to leave? No. If answers to the above are "No," then answer the following issues:— 4. Did the defendant act maliciously ' L and from wrongful motive? Yes. If the answer is "Yes," then answer the following issue 5. What damages is plaintiff entitled to? £SO. Mr Pownall formally moved for judgment, Mr Neave moving at the same time to set aside the verdict of the jury, and to enter judgment for defendant or a nonsuit, on points of law to be argutd. Judgment was therefore entered subjpet to the questions of law. Points of law were argued in,the evening, after which His Honor reserved his decision.