ALLEGED WRONGFUL ARREST FOR DEBT.

Wairarapa Age, Volume XXXII, Issue 10138, 8 November 1910, Page 5

ALLEGED WRONGFUL ARREST FOR DEBT.

AFI'EAL FROM A MAGISTRATE'S DECISION. His Honour Mr Justice Cooper, at Wellington yesterday, heard the case of J. Valentine Gorc'on, chemist, Masterton, v. Herbert William Buttrey, an appeal on questions of law from a decision delivered in Masterton. The original action was for false arrest, based upon two claim 3 which constituted two separate causes of action: That the warrant under which Buttrey was alleged to have been arrested was already invalid, and that the Magistrate or the jury were deceived by the misrepresent ationa and fraud of the plaintiff in regard to the warrant of arrest. Buttrey, it appears, at the time owed Gordon a sum of £5 0s 7d. Mr Skerrett taid the case was an appeal from the decision of the District Judge at Masterton, Mr W. P. Kaselden, S.M. The facts were outlined by counsel, l lain tiff had kept an inetnates' home in Masterton for .the past five years. According to the evidence submitted, he possessed freehold property ? which was valued at about £llOO, which was subject to a mortgage of £575, while there was a bill of sale to the extent of £2OO over the furniture. There was other money owing. The furniture was advertised for sale with, it was stated, the consent and concurrence of the mortgagee. Buttrey admitted that an application had been made to him for money two days before the sale. Buttrey said he told Gor don that the sale might be postponed, and that he would pay him the money owed. Gordon sent for the money, and to his agent Buttrey explained what he had told Gordon. As it happened, the sale was stooped by the holder of the bill of sale. It was given in evidence that Buttrey had told Gordon he was going to South Africa. In the application for a non auit that was in his favour, he had made no concealment of his intentions. It was also shown that Buttey, while so announcing, declared he had several things to clear up in New Zealand before he left. As to the arrest, counsel submitted that there really had been no arrest. 'J he bailiff, on the order heing made, presented the warrant to Buttrey, and told him that if the money were paid that would te all right. Buttrey asked him to accompany him to the 'sale, which was set down for that day, and the money would be forthcoming. This was done. Mr Skerrett -said it would be contended for defendant, inter alia, that Gordon denied that Buttrey said he would pay him, after the sale, and that Buttrey told both Gordon and his father he was going to South Africa. Application "was made for the arrest of Buttrey after consultation with a solicitor. Gordon had the.idea that Buttrey was trying to slip away out o'f the country.

The appellants chimed on the nonsuit that there was no evidence upon which a jury could reasonably conclude that the paintiff had been under arrest; that the action coud not lie because the warrant and finding of facts of the Magistrate as to Buttrey's leaving the Dominion and evading payment had not been set aside; and that appellant was entitled to notice of action in the Magistrate's Court, and no such notice was proved, On the general appeal from the decision entering up judgment for plaintiff on the verdict of the jury, counsel claimed that the plainuft' is not entitled to such a judgment, because the case was presented to the jury on an entirely erroneous basis, and that the real point in*the controversy between the parties was never submitted for the jury's consideration. Mr V. P. Skerrett, K.C., with him Mr Fell, appeared for appellant, and Mr (Jerdman for respondent.

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