May 15, 1895.]
would be largely indebted to him. I do not think there is any necessity for me to quote au- thorities, but-
DOW.
His Lordship-You do not want to do that We would get through much sooner if you confined yourself to your evidence.
Mr. Dennys-I would call your Lordship's attention to the case of malicious arrest.
His Lordship-I think Mr. Smith had better get into the witness box.
CHINA OVERLAND TRADE REPORT.
pointed to the tin box and said the money was there. I was agreeably surprised do not think I spoke to any member of the company about obtaining an order for his arrest.
Witness was then cross-examined as to his "other sources of information as mentioned in the affidavit. He said the manager of the hotel told him Mr. Hardy was going to leave, and also Mr. Smith or Mr. Durant.
Have you made
any payments to the plaintiff since he came here ?—Yes, $60.
What was the $60 for ?-I suppose he paid his board with it. I paid him the $60 the same day he took my $400. !
Have you paid him $50 a week ?—Yes. Have you paid him anything since he came to Hongkong P-No, because he has not been doing anything for me. Wednesday, and plaintiff came about eight or We came a fortnight last nine days before.
Has he been paid $50 a week ?-Be has been overpaid, because I advanced him some money in Singapore.
How much did you pay him?-$95. Aud out of that he had to pay his passage, $45. Did anybody accompany him ?-A boy.
Didn't he have to pay his passage P-Deck passage, $5.
For three waoks you have given him only $45 P-I have had nothing to do with him sinos last Friday. No salaries are paid while travell.
Re-examined An advance agent has hard work to do, but it is difficult to get a no man to do the work. That has been my trouble. He had nothing to do with the money. As a matter of fact Messrs. Kelly and Walsh gu rauteed the cost of the theatre. It was Mr. Durant who told me that the plaintiff was leav-
Mr. Saville Smith therenpon entered the box and said-On the 29th April I was the sole pro- prietor of the Hawthorne Dramatic Company. Mr. Hardy was employed as business agent at a salary of $50 a week. He had no interest in the profits of the company. On 29th April I was not indebted to Mr. Hardy in any sum at all. If we went into accounts Mr. Bardy would owe me something like Rs. 4,000 or Rs. 5,000. On Monday, 29th April, I saw the plaintiff in my room. I asked him if he had banked the money to my credit. He said "Yes." At that time I believed him. I had spoken to him about the receipts of the Thursday night. He said be had paid them into my account. He said nothing about deducting $40. I understood he had paid in the full amount. On Tuesday morning I went to the Chartered Bank ou some other business and I discovered the cheque for $400 had not been paid in. I immediately wout to the compradore at the City Hall. He accom panied me to the Bank. We found it had noting. been paid in, and then we went to the Hongkong]: In auswer to further questions witness said- and Shangbai Bank. I was told there that a tall The bailiff and I went casually together. I had fair young man had cashed the cheque aud got not then bad my breakfast. aight $50 notes for it. I could not find Mr. tickets for me at night. He simply gave me to The bailiff takes Hardy. I felt annoyed because he had told me understand that he would have to take the such a deliberate lie. I went to your office plaintiff. I certainly did not want to make and saw Mr. Bowley, who wrote Я let certain that Mr. Hardy was arrested. I did not tor to Mr. Hardy. I afterwards saw Mr. Hardy feel disposed to tell plaintiff that I had the and he said to me, "I have cashed the cheque money. and I intend to keep the money to pay way pas- sage home.” Of course he was drunk, but knew what he was saying. He had made no claim against me for money due to him. He did not even then say a word to me about my owing him money. After seeing him I went to the solicitor. I swore the affidavit produced and a warrant was granted to bring the defendant up next moruinging the colony. to show why he should not give security. Dur- Mr. W. Farmer, New Victoria Hotel, said ing the night previous to his arrest-between 12 I bave known both plaintiff and defendant be- and I rowe-1 saw the plaintiff in his room at the tween two and three years. hotel poke to him. He was in a maudlin with them.
I am on good terms On the night of 30th April was atate, and bad a difficulty in speaking to me, I in the bar of the New Victoria Hotel. got hold of and shook him, and asked for the money Hardy was speaking to Mr. Madar.
Mr. and papers. He said they were in the tin box. said he was going away the next day; that be Mr. Hardy There was only one in the room, and it was the had obtained $400 from the compradore of the oue used for carrying papers. It has been used City Hall. I asked him why he got it. He for carrying my papers. I found there the eight said he had been keeping Mr. Saville Smith with $50 notes intact. 1 concluded they were mine bis money for seven years, and that pow he was and I took them. After taking the money I was going away. He ball got what he could out of sent for by Miss Grace Hawthorne, who said, "I Mr. Smith. We walked out of the Hotel to- must tell you that man Hardy is leaving together. I said to him, "Well, I suppose you morrow and is taking your money, which I con- know what you are doing, Mr. Hardy It seems sidir is partly mine.' I said, "Well, I have got to me rather a serious thing. He said, Ob. thoney, and no thanks to you." I said there is all right; I have not touched the money. I warrant out for his arrest, but as I had got have it intact." I think Mr. Hardy was per the money he could go.. I did not want to fectly sober. He had shown me your letter and bave anything more to do with him. The next appeared to be a little excited over it, morning I saw the bailiff, and I said I have
Mr. Dennys-He was sober. got the money; that is all I want." He said mean by that P
How much bave you got?" I replied "$400.” Mr. Ellis-I think that is enough. It is a He said Unless I am paid $500 I must arrest perfectly well-known English term. Mr. Hardy." I said I did not feel disposed to pay $100 more. I had got my money, and that was all I wanted. It is not true that I said to the bailiff "There is the man, take him." I saw my solicitor as soon as possible and instructed him to withdraw the case, My solicitor wrote letters to Mr. Sangster and the bailiff withdrawing the warrant. The 30 for the LO.U. had been repaid by me to Miss Brian, the same week that her mother died. She wanted to send her younger sister home. I had never asked Hardy to pay up, because I knew he had no money. I always looked upon it as a debt I had to pay, the same as I have had to pay debts in Shanghai.
What do you
Mr. Dennys (to witness)-You said he was sober. What do you mean by that ? What is your definition of a man's being sober-He knew what he was talking about.
Mr.
that the whole of the amount was paid and there paid the $500 and he would not then have been was no question as to costs. Hardy might have liable to arrest. Mr. Smith said, "I have the money." If he had denied having the money, then there would have been evidence of malice. Smith is not the person who arrested, but the person who obtained the warrant. He was re- sponsible for what he did in obtaining the war- rant, but not for anything that happened after- wards. Before ten o'clock the officer in the Court House was informed by Mr. Smith that the case was withdrawn, and Mr. Hardy was not taken before his Lordsbip. Mr. Smith did every- going further. He knew Hardy had no money thing he possibly could to prevent the matter with which to pay costs, and there was the world. He had no banking account, and what evidence that Hardy had only 25 cents in the would have been the good of Mr. Smith quarrell- ing about costs with a man of that sort. The ease was withdrawn at the earliest possible mo, ment, and counsel submitted that plaintiff could not want to run down the plaintiff unnecessarily. not possibly be entitled to damages. He did
but was his evidence to be relied upon ? sworn in the box that he deliberately lied to the defendant in saying that he had passed the cheque into Mr. Smith's account. If the defen- daut had not gone to the bank the plaintiff would have been out of the colony, and would have taken the money with him. If a plaintiff comes with clean hands. into Count with a case of this sort he must come The defendant was perfectly the man from leaving the colony. He simply justified in getting his money and preventing took his own money, and when he got it he with drew the proceedings. The plaintiff had no right of claim whatever.
He had
Mr. Ellis submitted that the defendant had absolutely no ground for believing that the plaintiff was going to leave the colony, except plaintiff was probably going to leave the colony. the statement of the plaintiff himself. The in course of time, but not on the morrow. It was evidently the intention of the defendant to going to leave before the suit was brought to a make his Lordship believe that the plaintiff was
definite conclusion. He based his claim, not so much upon the action of the defendant in applying for a warrant, but upon the fact that he inter fered to see that it was carried out. He ought to have done everything in his power not to assist the bailift in arresting the plaintiff, or at any rate
duty to assist a bailiff if called upon ?
His Lordship-Would it not be any man's
of a civil officer; it is not a criminal case. It is Mr. Ellis-No, my Lord. He is in the position
magistrate. The bailiff could only call upon a a civil warrant, and not a warrant issued by British subject to prevent a crime. for Mr. Smith to render assistance.
His Lordship-I do not say it was, necessary
I do not. been called upon would it not be the natural he coull be legally called upon, but having thing for him to assist P
say
Mr. Ellis-I say not. I say it was the defen- dant's duty to do all in his power to prevent this arrest, He ought to have sat by and done no. thing whatever. The actual arrest has some- thing to do with the defendant. When he inter- feres he is responsible for the natural conse- quences of his action, and I submit to you that under the present circumstances Mr. Hardy would probably not have been arrested if Mr. Saville Smith had not interested himself in the matter to such an extent as not only to point out the number of Mr. Hardy's room and show the bailiff where the room was, but when he found the plaintiff was not there, he accom- panied the bailiff downstairs to the hall and pointed out the plaintiff.
Mr. Dennys-That is my case, my lord. Mr. Denuys then addressed his Lordship for the defence, and said that his Lordship must be satisfied, before giving a verdict for the plaintiff, not only that the statements in the affidavit were incorrect, but were knowingly incorrect, and that the defendant acted with malice. Mr. Ellis had made a good deal of the actual words used the bailiff did not do his duty ?
His Lordship-Are you not assuming that on the morning of the 3rd, but he (Mr. Dennys) Mr. Ellis--I am submitted that his client had nothing to do with The plaintiff is well known to the bailiff, and not assuming that at all, them. If he had acted in au outrageously mali- that is within the knowledge of the defendant. Cross-examined by Mr. Ellis-I had never oious manner, by pointing the plaintiff out in the If the defendant was there for the purpose of see- checked the payments supposed to be made into public street, or running after him and callinging that the bailiff did arrest the plaintiff he is my account until Tuerday. I have had no account special attention to his arrest, then that might liable for the consequences. at all from Mr. Hardy. The plaintiff should show malicions motive; but as the facts were Mr. have been quite able to carry out his duty with- The bailiff would certainly have told me that the money wis not Hardy was just as well known to Brown as Mr. out any assistance. paid into the bank. Plaintiff came to Houg- Smith was The only reason why Mr. Smith kong in advance of the company, but I have was brought into the matter was that Brown paid for advertisements. He has arranged for wanted to find out where the room was. various things, but has paid no money, as my plaintiff was perfectly right in carrying out the name is quite good enough here. His duties warrant of the Court, and the only way the war- were very easy, When I went into his room herant could be released was for plaintiff to notify
The
His Lordship-Did the defendant's preseros cause the bailiff to arrest the plaintiff ?
Mr. Ellis-What I say is that the defendant is responsible for everything that arises out of not do his utmost to prevent it being carried out that warrant. He procured the warrant, and did