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His Lordship-You advance that as equivalent | own evidence when he said
to malice?
Mr. Ellis-I advance that undoubtedly as malige. Is it probable that if he was doing all ja his power to prevent the arrest he would have gone with the bailiff first to Hardy's room and then to the hall ?
His Lordship-Was it in his power to stop
the arrest ?
THE HONGKONG WEEKLY PRESS AND I have got the money; that is all I want." and later on he said I left it with the bailiff "-I think that rather goes to rebut all presumption of malice in this matter. I do not think I need go further into this matter, except just to advert to that point about the necessity of the plaintiff proving that the decision of the judge's order on the termina- tion of the suit was in the plaintiff's favour. If an action for malice arises it is necessary to Mr. Ellis-I submit it was in the then plain- allege and prove that the original proceedings tiff's power, as he was the only person who was which form the alleged ground of the action are interested. As my friend himself stated, if heat an end. The termination must be such as to had paid the whole of the $500 the bailiff would afford prima facie evidence that the soit was have been bound to r. lease Hardy. I do not in without foundation. Mr. Hardy has acknow- tend to say that it was right for the plaintiff to ledged that he took this money that did not have kept the money or that he was justified, but belong to him, and I must say that there is no it was only natural for a man who had not had a prima facie evidence to show that the suit was legal training to keep the money under such cir- without foundation. cumstances. Defendant had no right to go to the tin box and take out the notes.
*
Mr. Ellis-I did not allege that for a moment. His Lordship-Iouly referred to it for this reason, that it was necessary for you to prove it as part of your case—the suit in which this war- rant was issued. It was issued in consequence of the suit which was to be brought against your client.
Mr. Ellis-It is not absolutely necessary for me to show that the case has been dismissed. In a malicious prosecution I agree
His Lordship-You will find that it is in a malicious arrest as well.
Mr. Ellis-Not, I tuink, in civil matters, my Lord; it is only in reference to criminal matters. His Lordship—I think not. You did not lay any stress upon that point at all.
Mr. Ellis-The point I laid stress on is the proceeding on 1st May at the time of the actual arrest, and also on the words of the affidavit. My strong standpoint is what took place at the time of the actual arrest.
His Lordship-I think I have shown you what I thought of that. Under the circum. stands of the case judgment must be for the defendant with costs.
Mr. Ellis asked about the costs of Thursday's proceedings.
He (Mr. Dennys) did not suppose that Mr. Saville Smith would get the money, but that was not the question. If his Lordship wished, Mr. Smith would go into the box and swear that it was absolutely untrue that he was going to leave the colony before the return day of the summons. His Lordship had already held that the arrest was applied for on insufficient grounds.
[May 15, 1895. Fawcett, Rs. 13; and Rs. 905 lent to the defen- dant by plaintiff. I do not think it is necessary to address your Lordship at all as to the circum- stances connected with these items. It was a very simple transaction, and it only remains for me to put the plaintiff in the box and prove the actual payments.
Mr. Frank Brett Hardy, the plaintiff, detailed the items he said he paid on behalf of the de- fendant, and added—Mr. Smith made an ar- rangement to go East with Miss Hawthorne. He had no money to pay the preliminary ex- He told me so. I had a sum of Rs. penses. 1,825 and a few annas from England, so at his request I paid for the fares. I took the tickets - myself, and paid for the luggage myself. When I went to take the tickets Mr. Smith gave me permits from the railway companies. The permits were for the purpose of travel. When I took the ling at a cheaper rate. tickets I found I was one permit short, and I was told they could not book right through from Bombay to Caloutts unless I got the permit. I eventually got the permit When I purchased and took the tickets. the tickets I took charge of them. Mr. Smith did not give me the money to buy them and I had no money of his in my possession at the time. The board bills at Bombay were for the people who left for Calcutta and for members of the old company. I gave Mr. Smith the money to pay these bills with. Mr. · Miller was left in the section hospital ill, and at Mr. Smith's request I sent him Rs. 50 at Bom- bay, for him to meet the train at a station along the line. He afterwards wired that he could not get away that day, and Mr. Smith asked me to give him Rs. 20 more, which he enclosed in a letter and left it with the station master, so that Mr. Miller could get to Caloutts. The meals on the train were for most of the members travelling. One or two paid for their own, and I paid for the rest at the request of Mr. Smith. The bungalow, for which I paid rent, wAS taken by the whole company. When we got to Bombay a Parsee gentleman came to Mr. Smith about the rent and said that proceedings would be taken unless the rent was paid. Mr. Smith told me he was going to be arrested for the rent, and asked me to settle the account.' 'I told Mr. Smith that it was agreed to accept Rs. 75 in payment. The claim was falas. 150: Mr. Smith asked me to pay the mong and I The bungalow was at Mhow. The did so. telegrams were sent to Calcutta and were in reference to meeting the company and engaging people. They were sent in the name of Mr. Smith. I paid the coolies for moving the luggage of the company when we had to change trains. The Rs. 16 were paid to Mr. D. C.
One rupee, was- Smith at various times. advanced on the journey from Bombay to Calcutta, Rs. 5 at Calcutta, and the balance boat between Calcutta and Ran. goon. Mr. Saville Smith asked me to pay the money, and said “Hardy will give yon Rs, 10." I paid Durant on the Calcutta platform and Fawcett part on the boat and part at Rangoon, I handed the defendant Rs. 1,000 Bombay note, to take the tickets of Fawcett, D. C. Smith, and myself to Rangoon. He took the fares, gave me my ticket and Rs. 100 change. I afterwards handed him Rs. 5 in silver. In not one instance“ bad the defendant given me the money to make the payments. I never had money belonging to
His Lordship, in giving judgment, said-On the 29th April the plaintiff in this case received from the compradore of the City Hall the sum of $400. That was in the morning. Later on in the day defendant met him, and asked him where the money was, and whether he had psid it into the bank. Plaintiff said he had done so, well knowing he had not done so. Defendant, relying on the word of the plaintiff, took no steps that day to verify the truth or otherwise of plaintiff's statement. The next morning he went to the bank and discovered that the money had not been paid in. Thereupon be wrote to his solicitor and instructed him to de- mand from the plaintiff this sum of $400: After that, according to defendant's version, he saw plaintiff and asked him about the money, and plaintiff said he was going to keep it and pay his passage home as he was going away. Thereupon the defendant applied for an order to have the person bailed, and failing that for him to be arrested. That warrant was executed about nine o'clock on the morning of the 1st inst. Now, first, as to reasonable and probable cause for acting as he did in this matter. Of course, in the defendant's original affidavit the im- His Lordship-I have thought about that, and portant clause is clause 7, in which he swears each party must pay his own costs for that day. that the plaintiff told him that he was abont to Mr. Dennys made an application, under the leave the colony, and that he had heard this from 16th section of the code, for compensation to other sources As to this point of leaving the be awarded to Mr. Saville Smith, who had been colony. You have it first of all that the de- arrested on the 6th inst. at the instance of Mr. fendant in this suit sys that the plaintiff told Hardy, on the ground that the order for the him he was going to leave just before the ap-arrest was applied for on insufficient ground. plication for an order was made. Then you have in the same evening the plaintiff telling the same tale to Mr. Farmer, Then you have it in evidence that it had got 'hinted abroad amongst the company that Mr. Hardy was to leave the colony. I think that was sufficiently shown by Miss Hawthorne's evidence. Now is it unlikely that Mr. Hardy told Mr. Saville Smith that he was going away? I think, in face of the fact that he told somebody subsequently, that it was not at all unlikely. It was the most natural thing for him to say, and he was evidently going about talking about the matter. Mr. Smith rowed. says in regard to his other source of in. formation that Mr. Hardy was about to leave the colony that he heard it from the manager of the hotel beforo be issued the warrant, and be also heard it from Mr. Smith or Mr. Durant of the company. In re-examination he thought it was Mr. Durant. I am satisfied that Mr. Saville Smith had reasonable suspicion upon which to act. All that it was necessary for him to show was that there were facts which would create a reasonable suspicion in the mind of a reasonable man. Supposing one of us had been in that position-s man taking $400 of our money, and he tells you, and you hear from other sources,
Mr. Ellis-The claim in this case, my lord, is that he is about to leave the colony. The means of leaving the colony are very easy, you can go partly for money paid for or on behalf of the away to Ĉanton and get away by French mail defendant at his request, and partly for money the next day. However, I cannot help coming to actually lent by the plaintiff to the defendant. the conclusion that in acting as he did Air. The particulars are as follow:-On the 20th Smith was fully justified by the circumstances February fares paid by the plaintiff for the de- fendant for D. C. Smith, Durant, Miss Brian, of the case. Of course if you cannot show rea- sonable and probable cause it is almost an infer three gharrys, and the plaintiff from Bombay to suce that there must have been malice. But Calcutta, Rs 184; luggage on the same journey.
Cross-examined by Mr. Dennys-The subse apart from the presence of reasonable and pros. 110.13; board bills at Bombay, Rs. 130; fare bable cause, is there any evidence of malice for Miller, another member of the company, from quent entries are monies paid to Mr. D. C. Now malice can be shown by acts either pre- Bombay to Calcutta, Rs. 70; meals on the train Smith at Rangoon. There is nothing at all cedent to or subsequent to the act complained from Bombay to Calcutta, Rs. 17; rent of bunga-written in the book after the total Rs. 1,552.7- of. I do not think any malice has been proved low at Mhow, Rs. 75; telegrams on the train not at that end of the book. The items written out, and it in connection with the company, Rs. 7.14; coolie in the train relate to Miller, telegrams, and seems to me that Mr. Smith, by writing bire in connection with the same journey, one or two items for meals. I did not make to his solicitor and telling him that he wished Rs. 1.12; advance made to D. C. Smith on his the entry of Rs. 800 in Hongkong, We per- the suit to be withdrawn, and also upon his salary, Rs. 16; same to Du ant, Rs. 5, and formed in Rangoon, and after Mr. Smith left
before the warrant was taken
His Lordship said that matter could stand over, and fixed Monday morning for the hearing of the case in which Mr. Llardy sues Mr. Smith for Rs. 1,552, money alleged to have been bor-
13th April.
The second action by Mr. F. Brett Hardy, advance agent of the Grace Hawthorne Company, against Mr. Saville Smith, proprietor of the company, came on for hearing. The plaintiff sought to recover Rs. 1552.7, part of which was said to have been paid by plaintiff on behalf of the defendant, and part lent to the defendant.
Mr. E C. Ellis (of Mr. V. H. Deacon's office) appeared for the plaintiff, and Mr. H. L. Dennys for the defendant.
0
on
the
defendant on the occasions when I made the payments. I have a few vouchers for the pay ments-vouchers for telegrams and meals. I handed the receipt for the rent to Mr. Smith. and I gave Mr. Smith the money to pay the board bills at Bombay. I produce the memo- randa I made of the payments, and, the entries correspond with the particulars of my claim. There are other entries in the book prior and subsequent to the dates of pay ments. I have not yet had a settlement with the defendant in reference to this account, and the money is still owing to me. I have spoken to the defendant about the money in Hongkong: He denied owing me anything.