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What was the amount of the receipts that night at the doors? Of course am not speak- ing of the bookings at Kelly and Walsh's. "$214 wasn't it ?—I cannot remember.
Witness was thereupon handed the com. pradore's memorandum, and he said Yes, that
is the amount.”
Did you pay that $214 into Mr. Smith's account?-No
How much did you pay ?—A cheque for $174 I think.
You had borrowed some money from the compradore, had you not ?—I had-$40.
Did yon ever tell Mr. Smith about that P— Not to my knowledge.
You deducted your own private debt from the amount of the receipts ?—I do not consider it a private debt.
You did not consider it a privale debt, but you said nothing to Mr. Smith about it ?-I did not furnish Mr. Smith with any account.
Why didn't you say anything to Mr. Smith about it P-I have borrowed money before, and I have not told him.
Mr. Ellis-He paid that away for the purposes of the Company.
His Lordship-I want it from the witness himself.
Mr. Ellis-He says it was a private debt. His Lordship-He has not gone further than that.
Witness-I had to pay some small items. His Lordship-The question is, why didn't you tell Mr. Smith about it ?
Witness-I thought he knew it from the com- pradore.
Mr. Dennys-On 29th April you borrowed $25 from the compradore ?—Yes.
The memoranda read, “To be deducted from tickets sold at the door-F. B. Hardy, 24th April, 1895." "Received from compradore the sum of $15, to be deducted from the tickets sold at the door, 24th April 1895, F. B. Hardy." You deducted that $40 from the amount which should have been paid into Mr. Smith's account and you said nothing to Mr. Smith about it. How did you spend the $40 ?-Some privately, some for 'rickshas, coolies getting paste, and different things connected with the show.
Have you ever furnished an account showing how that money was expended ?-I have not been asked for the account,
Answer the question.-No. That $40 is not included in the Rs. 1,400, is it P-No.
Were you quite sober up to the time you got my letter ?—Yes.
Were you quite goher up to tiffin time? --- Yes. Up to what time that afternoon can you say you were sober?—I can't say what time; up to the evening I think.
You think you were sober daring the after. noon ?—Yes.
Did you speak to Mr. Smith that afternoon ?— No.
Did he not ask you to return the money on Tuesday afternoon ? No, on Tuesday morning
before I received your letter.
Did he ask you whether you were going to re- turn the $400, and did you not say No, I am going to use it to pay my passage home ?"-No. What did you say ?-I said I was going to keep it on account of moneys that he owed me.
Mr. Dennys here handed a card to witness and said-Is that your handwriting ?
Witness.-Yes.
That is an 1.0.U for £30 P—Yes. To whom did you give that ?-To Mrs. Brian. And Mr. Smith paid that money to Mrs. Brian and got the I.O.U. from her P-If he did he paid it out of my money..
Mr. Dennys-It was given to Mrs. Brian, who was a member of the Company, my Lord. (To witness), You know as a matter of fact that the money was paid by defendant to Mrs. Brian ? -I know nothing about that being paid. He never told me so,
You have never paid Mrs. Brian ?-Not to my knowledge.
THE HONGKONG WEEKLY PRESS AND
Mr. Dennys-In this suit, my Lord, I do not think it is necessary to go into the question of
socounts.
Mr. Ellis-I have left that entirely alone. would only be confusing the two suits.
It
Mr. Dennys-I am not admitting anything by not doing so. (To witness). Can you tell us what time you saw Mias Grace Hawthorne on Tuesday, the 30th April ?--No.
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You saw her in the morning P-I cannot say ; it is so long ago.
Long ago! It was last week.I can't re- collect the time. If I saw her at all I suppose I saw her in her room.
Did you tell her that you had Smith's money ? -I told her I had my own money.
That was the money you had got by cashing Smith's cheque ?-It was my cheque.
The cheque for $400 you had from the compra dore-you told her you had that ?—Yes.
Did you tell her what you were going to do with it P-I told her I should keep it in order to get a settlement of my affairs.
Did you tell her you had told Mr. Smith that you had paid the money into the bank -No, I do not think I did.
Do you swear solemnly that you did not tell Miss Grace Hawthorne that you were going to leave for home by the French mail or by some other steamer the next day -No.
Did you say anything about leaving P-I might have said I wanted to leave after I had got a settlement of my affairs.
Re-examined-I had not taken a ticket for the purpose of leaving the colony, nor had 1 made any enquiries as to the cost of passage. I can. not remember whether I gave the receipts pro- duced to Mr. Smith. Last year, when at Shang- hai, I got into slight difficulties. I was the sole proprietor of the show then, although it was run in the names of Mr. Smith and myself. Mrs. Brian, knowing that I was in difficulties, offered Mrs. Brian never me £30 on the way to India. said anything to me about the repayment of the money, and she never told me that she had Smith. I handed the I.O.U. over to Mr. have never asked the defendant to pay Mrs. Brian, who is how dead. I had not heard, until the statement by Mr. Dennys waS On made, that Mr. Smith had paid the money. Tuesday, when he demanded $400, he told me he had possession of the I.O.U. I did not say anything to Miss Hawthorne about my inten- tion of leaving the colony.
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[May 15, 1995.
Occurs in every company in Hongkong! You are not on perfectly good terms ?-My feeling towards Mr. Smith is perfectly friendly.
Re-examined by Mr. Ellis-The only dispute you have bad with Mr. Smith is as to his furnishing accounts ?-That is it.
You are interested in the takings are you not? You are entitled to a certain portion of the net profits P-I should be.
h m I am perfectly willing to retire from That is the only dispute you have had with Mr. Smith's company.
This concluded the case for the plaintiff. Mr. Dennys-I ask the Court not to call upon any defence. The the defendant in this case for plaintiff has come into Court and told the Court that he told a deliberate lie in reference to this money.
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Mr. Ellis-If my friend is not going to call witnesses it is for me to address the Court,
Mr. Dennys-I am simply asking for an er pression of opinion from your Lordship.
His Lordship-Are you going to call witnesses? Mr. Dennys-If your Lordship thinks I should I will, but your Lordship has full power to stop the case.
His Lordship said he would hear Mr. Dennys's witnesses.
Mr. Dennys-Although I shall call witnesses in deference to the wishes of the Court, I do not think that were I to call fifty witnesses I could make my case much stronger than it is at pre sent. In order to prove his case the plaintif must satisfy your Lordship that there was want of probable cause when the defendant ap- plied to the Court for a warrant for the arrest of the plaintiff, and you must find there was malice. Now, I take it, on the plaintiff's own case, both of these things are absolutely nega- tived.
Mr. Ellis-My friend is arguing the case, my
Lord.
Mr. Dennys-Of course I am arguing the case. I am going to show what my defence is and what I am to put forward. Your Lordship will By his Lordship--When I arrived in the co-see that this arrest was a judicial proceeding. lony Mr. Smith was indebted to me in the sum of Rs. 1,500 odd, and he has owed me that money siuce February. We had no regular times for making up accounts between us.
Miss Grace Hawthorne said-I remember the early morning ef Wednesday, 1st May. I was in my room. I saw Mr. Saville Smith. He came into my room and said he had got the money from Mr: Hardy. Ile did not mention He said he was going to have Mr. the sum. Hardy arrested in the morning. He then lef! Cross-examined-It was after the theatre, I sent about 1 a.w,, that he came to my room. for Mr. Smith. I said I had heard Mr. Hardy was going away next morning with the money. His reply was I have got she money." I re- ferred to the money Mr. Smith told me Mr. Hardy had taken.
my room.
He told me about it some
day previous-I think on Monday. I think be inentioned it was $400. My husband told me at the theatre that Mr. Hardy was going away, That was on Tuesday night. I never heard a word about it till during the performance on Tuesday night.
Had you not heard of it between 10 and 11 o'clock on Tuesday morning ?-No.
Wasn't Mr. Smith annoyed with you for not telling him? Did he not say "You knew this at 10 o'clock this morning "?—He was annoyed with me for something. I can't say what it was. He is annoyed with me for so many things. I can't say what they are about.
He has given you and your husband notice to leave the company P-No, he has not. He has not given me any notice at all.
Or dissolved partnership or anything of that sort ?—He has not given me notice to leave or notice to dissolve partnership.
You went up to Mr. Quincey's house, did you not?-No.
Did you go and see Captain Hastings, the Captain Superintendent of Police P-I do not know the man,
You haven't been up to the police ?--I have never seen the police.I do not know where it is and I do not know the man.
Are you on good terms with Mr. Smith F-I have no dislike for Mr. Smith.
Have you not had a dispute over business matters ?-I do not know that we have had any dispute particularly-nothing more than what occurs in every company.
Your
For the arrest its there can be no claim for damages. The bailiff cannot be sued—he was acting on your Lordship's warrant, and the only way the defendant can be brought in is that he can be sued for malicions arrest if he in aptated facts to the Court which are absolutely false and which he knew were absolutely false. Lordship, on the facts before you, exercised your discretion; whether that discretion was right or whether it was wrong has nothing to do with the case here. The sole question before your Lordship is-Did the defendant come before the Court and tell untruths knowing them to the untruths and thus obtained a warrant be would not have obtained otherwise? Mr. Dennys here read the affidavit in which it was stated that Mr. Saville Smith was the sole proprietor of the company; that the plaintiff was engaged as busi- ness agent at $50 per week; that he had no interest in the company; that Mr. Smith was not indebted to him; that the plaintiff obtained $400 from the compradore of the City Hall in respect of the performance of Saturday, 27th April; that the money should have been paid into the Chartered Bank; that at two p.m. on the 29th April plaintiff told Mr. Smith he had paid the money into the Bauk; that on the 30th April Mr. Smith learved the money had not been paid in ; that plaintiff had taken no notice of the lawyer's letter Mr. Smith had directed to be sent, that in an interview with the plaintiff he admitted he got the mouey, had spent part of it, and was keeping the remainder in order to pay his pas sage home to England. The usual application was therefore made for the detention of the plaintiff. Resuming, Mr. Dennys said-On that affidavit your Lordship exercised your judicial power and came to the conclusion that a warrant ought to issue. Has the plaintiff here to-day said a single word, except the bare statement that the defendant is indebted to him to contradict the oath of Mr. Saville Smith I submit he has not.
Mr. Ellis-He has. My friend is addressing your Lordship on the evidence.
Mr. Dennys-It is very unusual to interrupt. Mr. Saville Smith will go into the witness box and will swear positively to your Lordship that he is not indebted in any sum whatever to Mr. Hardy. Mr. Hardy has rendered no accounts, and the defendant will tell you that not only is be not indebted to Mr. Hardy, but if accounta were properly taken between them Mr. Hardy