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Colonial Cases

R. v. Macnaghten and others [1825]

imprisonment for debt, voluntary escape - Sheriff, criminal liability of - conspiracy

Supreme Court at Calcutta

Sir Edward Ryan J., February 1825

Source: The Morning Chronicle  (London, England), 13 September 1828, issue 18409 [1]

CALCUTTA SUPREME COURT. - Feb. 25.

[Seventh day of the Sessions of Oyer & terminer , before Sir Ed. Ryan.]

The King, at the prosecution of William Long, v. William Hay Macnaghten, William Hunter Smoult, Rustomjee Cowasjee , John Davison Smith, William Ross, George Board and David Pearson, for conspiracy and false imprisonment. Counsel for the prosecution, Messrs. Minchin and Dickens; Attorney, Mr. John Hughes. Counsel for the defendants, the Advocate-General and Messrs. Turton and Cleland; Attorneys, Messrs. Collier and Harris.

Mr. Dickens opened the pleadings.

Mr. Minchin said, he felt great pain in rising to address his Lordship and the Gentlemen of the Jury on the present occasion, for there were some of the defendants with whom he had always been on terms of the greatest intimacy; but as he had a duty to perform, he should do it to the best of his power, and would put the case of the prosecutor into the hands of a Jury, and at their hands, he was assured the prosecutor might expect and would receive such redress as the nature of his case might permit him to expect. He said he was happy to find, from the evidence about to be adduced, that nothing could be brought forward against Mr. Macnaghten; for although a Sheriff is (said he) accountable for the conduct of his deputy, he is not criminally answerable for his actions. The prosecutor in this case knew not at first that it would be necessary to involve Mr. Macnaghten's name in the proceedings; but he (Mr. Minchin) would feel most happy, and he knew it to be the wish of Mr. Long that a verdict of acquittal should be recorded against him. He said he should next turn to the most painful part of the proceedings; he would have to go so far back as 1823, which was the period at which Mr. Burch brought his action against Mr. Long, the present prosecutor, and Mr. Smoult was his agent; subsequently Mr. Smoult ceased to practise as an attorney, and he took upon himself to recommend and dictate, on the part of Mr. Long, that the matters in dispute should be left to an arbitration, which arbitration was appointed contrary to the wishes of Mr. Long and his agent, and the matters at issue were left to Mr. Mackillop and Mr. Tandy; he (Mr. Long) did what was in his power to prevent the arbitration; it went against him, and he was arrested for the amount awarded; he arrived a prisoner in Calcutta in December, 1824, and was soon after removed to the gaol; you will hear (said he) from Mr. Long, conversations which he had with Mr. Smoult, who was then acting as Sheriff of Calcutta, in which he added insult to those injuries already inflicted; you will hear from him conversations touching the warmth of the gaol, &c. and you will have those conversations as connected with previous circumstances. This took place in December; and in July, 1825, he was discharged by an order from Mr. Burch's attorney, and you shall see his dismissal from the Sheriff; if Counsel on the opposite side say that there was any impropriety in that dismissal, it will be for them to show it; it is dated on the 21st, & is not acted on till the 22d; it cannot, therefore, be said, that the Sheriff had not sufficient time to inquire into the circumstances of Mr. Long's release. On his paying the usual fees and being let out of confinement, he arrives at the house of a friend; on the 27th, he goes up to the gaol to settle some affairs, and on that evening two of the defendants, Board and Ross, come to the house where he is living, and say, we have the verbal orders of Mr. Smoult to seize and place you in confinement, resistance is useless, we have brought fifty men with us; in vain Mr. Long demanded their authority; he was taken to the gaol, and there he has remained up to the present time. Gentlemen of the Jury, his Lordship will tell you, that where a Sheriff permits an escape, the person so escaping cannot be again arrested by the verbal order of that Sheriff.

Sir E. Ryan: That is a well known point of law.

Mr. Minchin: We have in the present case the Sheriff's authority to discharge Mr. Long, and he therefore could have no right to seize him again without a new writ; there are Acts of Parliament which sufficiently point out, when a prisoner is suffered to make a voluntary escape, the line to be pursued by plaintiffs for redress, but in this case Rustomjee and Smith, agents for Mr. Burch, apply to Mr. Smoult, by his own authority, to arrest Long without a writ, though the plaintiff (Burch) lived many miles from Calcutta; and on Mr. Smoult's not liking to take so much responsibility on himself, and expressing his reluctance to do so, Smith and Rustomjee enter into a bond to him, and you will find that was a bond to indemnify Smoult against the consequences of such an arrest. Mr. Smoult having such a security, gave the necessary orders, but on its being rumoured that such an arrest was illegal, Mr. Smoult took the bond from the Sheriff's office, where it had always remained. Mr. Burch, the plaintiff in this case, joined with Mr. Smoult and through his agents gave that bond, which, if Counsel for the prisoners refuse to show, one of the subscribing witnesses can give secondary evidence of its contents, and thus prove that an illegal combination was by them entered into to deprive Mr. Long of his liberty.

Sir E. Ryan: The Court, on a former occasion, when Mr. Long was brought up under a writ of habeas corpus , were of opinion that the escape was not voluntary, but negligent; if the facts brought forward then are the only ones to be heard now, the Court need not go into the question; for if the escape was negligent, the seizure of Mr. Long again was justifiable, and of course the question of conspiracy and false imprisonment falls to the ground.

Mr. Minchin: My Lord, I was not then in Calcutta; but I am informed that the Court, on that occasion, came to no decision, nor were all the circumstances of the case before them.

Sir E. Ryan: A decision must have been made.

At this stage of the proceedings, the Counsel on both sides entered into a long discussion as to whether, on that occasion, a decision was made or not.

Mr. Minchin: With regard to whether it was a voluntary escape or not, that must go to the Jury; the evidence will be put before them, and they must determine whether it was or not; if it is not allowed them to decide, I must argue the point; I must show the conduct of Websterfield, the attorney for Mr. S. Burch; he is dead; but, if he was alive, he would this day declare his reasons for granting that discharge. In conclusion, all I can state is, that, during Mr. Long's confinement, he became acquainted with Mr. Websterfield; and, on his (Mr. Long's) giving an undertaking that he was possessed of no property by means of which he could so liquidate the debt, but would insure his life for the amount, if Mr. Burch paid the necessary expences . Mr. Websterfield granted the discharge, thinking such means were best calculated to secure to the plaintiff Burch his money; and he was by him and Mr. Macnaghten set at liberty.

Sir E. Ryan: All I desire to know is, whether the question of the legality or illegality of this arrest was before the Court heretofore or not, and was it or was it not decided upon? When all the evidence is gone through, it will come at length to a point of law, and it will be for the Court to say whether it was an illegal imprisonment or not.

Mr. Minchin: Mr. Long will prove, by evidence, that he was not arrested by the plaintiff in the cause, or by his attorney, but by Rustomjee and Smith; and that Mr. Pearson, the gaoler, received him into his custody on the verbal orders of Mr. Smoult. Mr. Minchin quoted several authorities in proof of the power of an attorney to grant a release on behalf of his client.

Sir E. Ryan: The Counsel for the prosecution have stated, that all the circumstances of this case were not before the Court on the argument of the habeas corpus ; of course they might have formed an erroneous opinion; but if it appears from evidence that they were, it would be, gentlemen of the Jury, quite absurd for you to sit there to try a question on which the Court had already decided.

Mr. Wm. Tate: I am an attorney; in the beginning of 1824, I was employed in the case of Burch v. Long, for the defendant; had a conversation with Mr. Smoult; he called on me and said, we had better let this go to arbitration; I said I thought not, as I knew Mr. Long would not be satisfied; he then said, he did not consider Mr. Long my client, but his; I gave no assent to the arbitration; I said I did not think it would be right.

Nally Commo Mosendar : I hold a situation in the Sheriff's office, and am acquainted with Mr. Smoult, who was Under-Sheriff of Calcutta in 1825; he came into office in December, 1824; I know Mr. Long; he was arrested at Benares, and taken to gaol on the 27th of December, 1824, under an execution at the suit of Stephen Burch.

Mr. O'Dowda produced the writ under which Mr. Long had been arrested, and the Sheriff's return.

Robert Sherburn : I know David Pearson served the copy of an order on him for the production of the order under which Mr. Long was released.

Cross-examined: It is about ten minutes since I served him.

Mosendar re-examined: After Mr. Long's discharge, he was again arrested, by a verbal order of Mr. Smoult; all orders are filed in the Sheriff's office; I am the person to examine all writs and warrants, and when I am absent my assistants do so for me; by Mr. Smoult's orders I sent for Ross and Board, two bailiffs; he said he would direct them to arrest Mr. Long; I was not present when they went to him, but they told me they had received from him verbal orders to take Long; I know that Long was taken afterwards by Board and Ross, but do not know who accompanied them; there is no order field in the Sheriff's office for his reception; I know Rustomjee , but did not see him with Mr. Smoult after the arrest of Mr. Long.

Roop Chun Day: I am in the service of Mr. Hughes; served notices on Mr. Smith, Mr. Smoult, and Messrs. Collier and Harris.

Mr. Minchin: My Lord, as the opposite party do not, according to notice, produce the bond, we must give secondary evidence of its contents.

Mr. Humphreys: I am an attorney, and am acquainted with Rustomjee and Smoult; in 1825, Mr. Smoult obtained a bond of indemnity for the retaking of Mr. Long.

Counsel for the prisoners produced the bond, and Mr. Humphreys identified it as the one passed on that occasion; is an attesting witness to it.

Cross-examined: Mr. Websterfield and I were partners; I have no reason to know that the release was a fraud on Burch; I received no instructions from Mr. Burch to release Mr. Long, or enter into any compromise with him; I acted in that cause as the partner or Mr. Websterfield; he was not authorised to do so, not could I on any account; I was employed to make a motion in this Court on the release of Mr. Long,and Rustomjee paid my costs; I never saw Mr. Burch, nor did I at any time receive verbal instructions from him; Mr. Websterfield was in gaol shortly before Mr. Long's release; his senses at different periods did not appear right from drinking; he lost his business on that account; I did not see him in gaol, as he and I were not on good terms; I could swear that I saw him sober within the last year of his life; he died in the Petty Court gaol; after is releasing Mr. Long, I knew of his having had a suit in this Court; on the 27th of July, when an order was made to arrest the prosecutor, I went to the Prothonotary Office, and shortly after the bond was passed. The Court on that occasion made a declaration as to the power of the Sheriff to arrest; under the impression that the release was illegal, and from what fell from the Court, I gave that bond; Mr. Burch has not to my knowledge received any money from Mr. Long; I attended the reference before Messrs. Tandy and Mackillop for Burch, and Mr. Tate for Long; the arbitrators examined the indigo; they were both considered good judges of it; Mr. Tandy had extensive factories up the country; Sir F. Macnaghten recommended the arbitration.

Re-examined: I was not the attorney upon the record, Mr. Websterfield was; I was on bad terms with him prior to his death; the purport of the motion of the Court I spoke of was to procure a new writ to take Mr. Long, which motion was refused. It was in consequence of that bond of indemnity that Mr. Smoult gave the order to arrest; in the motion of the Court, or in the affidavits, no mention was made of the bond of indemnity.

Mosendar re-examined: I have seen this bond before, I had it for the Sheriff, and delivered it to Mr. Smoult or Mr. Collier; all bonds of indemnity are kept by me; I have not kept this bond in my possession; I do not recollect when it was given to Mr. Smoult or Mr. Collier.

Mr. Long: I am at present in the great gaol of Calcutta; I was first arrested at Benares, in 1824, at the suit of Stephen Burch; I arrived at Calcutta on the 26th of December, 1824, and was put into gaol on the day following; I saw Mr. Smoult, he sent me a note on the 26th, to say he would call on me at Mr. Pearson's; I saw him on the 27th, when he made use of some unfeeling expressions with regard to the heat of the gaol; I told him that the arbitration was against my consent, and begged him to explain why he, as my attorney, permitted it; his reply was, that the reference was made to prevent persons in influence from being implicated; I was released on the 22d of July, 1825, and remained at large from that period up to the 27th, on the evening of which day I was again arrested at a house in Cossitollah by Ross & Board; I asked them for their authority, they said they had none, but that Mr. Smoult would be accountable for their conduct; the house was filled with people, and Ross tapped me on the shoulder and said I was his prisoner; I considered for some time whether I should not annihilate them, but reflecting that the person who sent them was answerable, I surrendered, and was conveyed to gaol, where I have since remained. I was so far acquainted with Mr. Websterfield as his having called on me, and having his room next to mine in gaol. (Mr. Websterfield's order to the Sheriff was handed to the witness.) I never saw this paper before; the signature is in Mr. Websterfield's hand-writing; the terms of my release were that I should enter into a life insurance for the benefit of Mr. Burch. I had no funds but my pension from Government. I was brought to this Court under a writ of Habeas Corpus in 1825; there was no decision given by the Bench in my hearing.

Cross-examined: I do not know who the persons of influence spoken of by Mr. Smoult were; I asked him, but he gave me no reply; the dispute between Mr. Burch and myself was about indigo; Mr. Burch fixed his own price for it; I told Mr. Smoult there was a conspiracy against me; I did not indict him then, for though attorneys took my money, they did no business for me. Websterfield was the attorney employed by Burch; I might have seen him previous to our meeting in gaol, but never spoke to him; he has frequently dined with me in prison, but I never kept liquors for him. Mr. Websterfield was a man whose abilities appeared to greater advantage when he was in liquor; I would not make a bargain with him when he was drunk. I was not present when he signed my release; I never understood that the house in which I was re-taken was Websterfield's, but that it was rented by a Mrs. Imley ; I have heard from him that she was his mistress; those persons who filled the house were all natives, with the exception of two Europeans. I had no arms about me to annihilate them; but if I had done so I should consider myself justifiable; I have not insured my life; Mr. Burch, who was to pay the expences , has never called on me to do so; persons who have no means of paying debts are often let out of confinement on insuring their lives.

The witness was cross-examined at great length with respect to money alleged to have been paid in advance by Mr. Burch to him (Mr. Long) or his agents for him, and which Mr. Long asserted that he had never received, but that it might have been paid to those persons who were Mr. Burch's bankers as well as his, but that he never had received an account of it.

Re-examined: I do not consider that my life could be insured without my consent; I employed several attorneys, and feed Mr. Winter and the Advocate-General.

Advocate-General: Indeed you did not in this cause.

Mr. Long: Then I will thank you to explain to the Gentlemen of the Jury why you took my five gold mohurs .

The Advocate- Genrral , for the prisoners, said, that his friends had not shown what they had undertaken to show, namely, that facts would be brought up in evidence which had not appeared before the Court on the argument of the habeas corpus .

Mr. Minchin was of a different opinion; he thought they had.

His Lordship was of opinion that in the present case there was no question to go to a Jury. On the first count of the indictment for a conspiracy all the other counts depended. The Court had heretofore decided on the question, therefore there could be no conspiracy.

His Lordship said, that the Counsel for the prosecution had promised that more should appear before the Court than was argued on the question of habeas corpus . From what the witness for the prosecution had said, they were justifiable in retaking Mr. Long; he was re-arrested under an order from the Sheriff, and brought up under a writ of habeas corpus , and remanded; as the Court considered that the release was illegal, it would, under these circumstances, be impossible to get a Jury to give a verdict finding persons guilty, when the Court itself declared their conduct legal. You are bound (said his Lordship), Gentlemen of the Jury, to find them not guilty, inasmuch as they have done that to which this Bench declared was correct; your duty, Gentlemen, is to find according to the truth - mine, to determine the Law.

Verdict - Not Guilty.

Note

[1]  A voluntary escape by an imprisoned debtor was done with the agreement of the sheriff or gaoler, in return for a security to pay the amount that the sheriff might be required to pay the imprisoning creditor. A negligent escape was one where the sheriff's neglect, rather than deliberate action, led to the escape.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School