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Colonial Cases

Guarracino v. Downes, 1888

[malicious prosecution]

Guarracino v. Downes

Queen's Bench Division
Lord Coleridge, July 1888
Source: The Times, 10 July 1888

 

QUEEN'S BENCH DIVISION.

(Before LORD COLERIDGE and a Special Jury.)

GUARRACINO v. DOWNES.

This was an action against General Downes for falsely and maliciously making a charge of felony against the plaintiff in the Supreme Consular Court at Constantinople.  The plaintiff alleged that he and the defendant are British subjects, and that the defendant on April 19, 2887, falsely and maliciously and without reasonable cause preferred a charge of felony against the plaintiff in the Consular Court at Constantinople, and caused the Court to issue a summons charging him with having fraudulently taken away from the place of their deposit (the Imperial Ottoman Bank) the provisional title deeds and other documents of title of the Yalova estate (an estate in Asiatic Turkey, about 30 miles from Constantinople) and wrongfully converted them to his own use; and that on April 23, 1887, the defendant, under and by virtue of the summons, caused the plaintiff to appear before the Court to answer the charge of felony and to be further dealt with according to law, and that on the hearing of the charge the defendant appearing an offering no evidence the charge was dismissed and the plaintiff discharged out of custody, whereby the prosecution was determined; and that by reason of the premisses the plaintiff was injured in his reputation and suffered pain in body and mind, and was prevented from attending to his business, and was put to expense, &c., for which he claimed L. 1,000.

The defendant denied that he  preferred a charge of felony against the plaintiff or caused the summons to be issued; and he alleged that the plaintiff never was in custody upon any charge preferred against him by the defendant, and if he was responsible for the charge it was under these circumstances:-

The plaintiff in 1885 was appointed to act as manager of certain estates in the Ottoman Empire; and in December, 1885, was directed to deposit the title deeds thereof, which were of great value, at the Ottoman bank in Constantinople.  The defendant was and is the registered legal owner of the estate, and in April, 1887, was in Constantinople, when the plaintiff, in answer to inquiries by the defendant, repeatedly assured the defendant that the title deeds were deposited with him, and that they were in the custody of the bank; but upon inquiry at the bark the defendant learned that the deeds were not in the custody of the bank, but had been withdrawn there from about 12 months previously by the plaintiff himself; that the defendant laid the facts fully and fairly before counsel at Constantinople, who advised the defendant that a summons ought to be applied for at once, and counsel applied for the summons, and that the defendant had reasonable ground for causing the charge to be preferred against the plaintiff, and acted bona fide and without malice, which was denied by the plaintiff.

Mr. Jelf, Q.C., and Mr. Stafford were for the plaintiff; Mr. Lockwood, Q.C., and Mr. Houghton were for the defendant.

It was stated by counsel for the plaintiff that he had been employed by a Mr. Longcroft, the owner of the Yalova estate, which was large and required development to manage it.  It had not been properly transferred, however, according to Turkish law, and certain formalities were required.  It was necessary that for certain reasons there should be a trustee for the owner, and the defendant, General Downes, Commissary-General, consented to act, and the deeds were taken out in his name, and these were the deeds charged to have been stolen or taken away fraudulently.

On December 5, 1885, Longcroft wrote to the now plaintiff, Guarracino, who had then obtained the deeds, suggesting that it would be well to deposit them at the Imperial Ottoman Bank, and on December 8 he deposited the deeds at the bank; but in February, 1886, he withdrew them, and placed them with a Mr. Pears, a barrister and attorney at Constantinople; and it was suggested that he had forgotten this at the time in question, and it was asserted that he had never dealt with them in anyway, and were in Mr. Pears's hands entirely for safe keeping for the owner, Mr. Longcroft, who remained in this country.

In August, 1886, Guarracino wrote to General Downes, the defendant, to explain the state of affairs, telling him that he was managing the estate for the owner, and that he desired orders and instructions as to various matters.  On August 14, General Downes wrote that, though the legal owner, he could give no instructions, and suggested that Guarracino should have recourse to Mr. Longcroft's solicitor for instructions.  Mr. Guarracino, however, in September, 1886, came to England and saw Mr. Longcroft and received instructions. On December 31, 1886, Mr. Longcrift executed a power of attorney to General Downes, who went out to Constantinople and met Mr. Guarracino, who took him over the estate and explained its position.  General Downes then saw Mr. Pears, who was Mr. Longcroft's solicitor, and they had a dispute about some matters and a quarrel arose, in consequence of which General Downes dismissed Mr. Guarracino.

Before this General Downes had asked for the documents of title, and Guarracino answered that they were at the ottoman Bank, forgetting that it was suggested that he had removed them and sent them to Mr. Pears.  On April 14, the next day, General Downes wrote to Guarracino desiring that the documents should be sent to him, and next day, on the 15th, Guarracino wrote to the General stating that he had already got some of the documents, and that there were others with which he could not part, as he had claims upon the estate, -

"I was in error in informing you that the documents were at the Imperial Ottoman Bank, forgetting that I had some time ago removed them," &c.;

And he then went on to assert that he was entitled to retain the documents on account of his own claims.

After that General Downes took the proceedings complained of against Guarracino.  A solicitor wrote to Guarracino on behalf of General Downes that he should have to "take action" against Guarracino "based on his refusal to hand over the title deeds of the estate, and detaining them wrongfully after withdrawing them from the bank without authority."  Then the solicitor saw Guarracino, and intimated that criminal proceedings would be taken for "wrongful conversion" of the deeds.  And then the summons was taken out upon a criminal charge, which in court was withdrawn, the deeds being produced.

Mr. JELF, in opening the case for the plaintiff, said the letter of Guarracino was not the letter of a felon, and had explained the mistake to General Downes, who therefore had acted recklessly in instituting criminal proceedings without any foundation or excuse.  The general's defence was put very disingenuously - that "he learned from the bank that they had not the securities," which was not the fact, for he had already learned it from the plaintiff Guarracino himself.  It could not therefore be true that the general had fully and fairly laid the facts before counsel; for if he had done so, counsel would never have adviser such a prosecution. 

There had been a suit in equity on the part of Mr. Longcroft against Mr. Guarracino for an account; but Mr. Guarracino was prepared to show that he was fully justified in what he had done, and in the claims he set up for a lien.  And if his learned friend should endeavour to make any imputations upon Mr. Guarracino, he should ask the jury to give exemplary damages.

The plaintiff was then called and stated that he was a British subject; his father was of Italian origin, but his mother was an Englishwoman; and he was educated at Ipswich Grammar School.  He had, however, passed much of his life in the East, and in 1885 he was introduced to Mr. Longcroft, and entered into an agreement with him as to the management of his estate, and he went out to Constantinople to manage the estate.  He had to direct his attention as to the transfer of the of the estate, which was very large - between 40,000 and 60,000 acres - much of it, however, Church property, which would escheat to the Church if there were no issue of the owner.  He consulted Mr. Pears, a barrister and solicitor, out there, and by his advice, as Mr. Longcroft was a bachelor, the estate was conveyed to general Downes to be held in trust for Mr. Longcroft, the General having a family; and accordingly he was registered as the legal owner, and witness received the title deeds and informed Mr. Longcroft of it, and he suggested the deposit of the deeds at the bank, and wiriness wrote back assenting, "subject to my having them whenever I may require them;"and he so deposited them in a sealed packet.  In about two months he required them for the reference - he believed to take the numbers and get copies in order to obtain permanent title deeds at the Land Registry Office.  The deeds were in Turkish, and he had to employ a Turkish scribe to take the particulars, and after this he deposited them with Mr. Pears, who was Mr. Longcroft's solicitor.  To the best of his belief they remained there until the 21st of April, 1887, when he took them to the Consular Court.  The witness stated the other facts substantially as above set out.

LORD COLERIDGE observed that the facts were not in dispute.

The witness went on to state that when general Downes came he asked where the title deeds were, and witness said "at the Ottoman Bank," forgetting at the moment that he had removed them.  He went on to state that difficulties arose, and Mr. Pears advised the employment of an Armenian lawyer, that the British Dragoman was seen about it, that an Armenian lawyer was consulted, and at an interview on the 13th of April General Downes got into a passion about some matter in dispute (a lawsuit); and spoke about being "fleeced," and that people were trying to fleece him, whereupon witness got angry and remonstrated with him and said he was acting contrary to Mr. Longcroft's interests in giving up the lawsuit, &c., and the General told him he was impertinent," and as he resented this the General pulled out a written notice of his dismissal and asked witness to hand over the tile deeds, when witness said "it remains to be seen whether I will give them up," having, he admitted, lost his temper.

This was on the 13th of April, and next day the general wrote for the deeds, and witness wrote in reply as above stated, in which he said "I cannot but think I am justified in retaining the documents until a final settlement is arrived at."  General Downes wrote on that day to the bank not to part with the documents, and on the 16th the bank wrote to him that the documents had been withdrawn by Mr., Guarracino.  Then came the solicitor's letter, and on the 17th of April the solicitor saw him and  said if he did not give up the deeds he should "bring a criminal action against him," and this, said the witness, made him the more resolved not to give them up.  He wrote to general Downes on the same day.

LORD COLERIDGE observed that the plaintiff might or might not have had a right to retain the deeds, but what the counsel for the defendant would have to make out was his right to treat the plaintiff as a criminal.

Witness went on to state that after another letter from the defendant's solicitor threatening criminal proceedings against him for "wrongfully converting the deeds," he received the summons of the 21st of April "to answer to a charge of fraudulently taking away the deeds deposited at the Ottoman Bank."

LORD COLERIDGE asked Mr. Lockwood whether he meant to contend that his client was justified in instituting criminal proceedings against this gentleman for ":fraudulently converting" these deeds.

MR. LOCKWOOD. - My lord, we meant to say that on the facts before him General Downes consulted a person whom he believed to be qualified to advise him, and that the proceedings were taken upon that advice.

LORD COLERIDGE. - Criminal proceedings?

MR. LOCKWOOD said he did not desire further to anticipate the defence.

LORD COLERIDGE. - By all means.

The witness went on to state that on receiving the summons he at once consulted Mr. Pears, with whom the deeds were deposited; and they were made up into a packet and taken to the Ottoman bank, of which General Downes was informed, and his solicitor acknowledged them.  On the 23rd of April the summons came on for hearing, and witness was put in the dock by his counsel, Mr. Pears, and General Downes and his solicitor appeared, and the solicitor made a statement - what it was he hardly knew - but saying that, as the deeds had been returned, he withdrew the summons; and upon that the summons was dismissed, and a certificate of its dismissal was now produced.  The proceedings were well known throughout Constantinople, and an account appeared in the Levant Herald and in the French papers at Constantinople, and he found them at his club in this country.  He was well known in Constantinople.

LORD COLERIDGE observer that the charge was evidently calculated to discredit the plaintiff, as it was a charge of fraudulently taking away the deeds and appropriating them to his own use - virtually a charge of stealing them.

At this point counsel on both sides conferred, and came to a settlement - a verdict for £50 and a retraction.

Mr. LOCKWOOD stated on behalf of General Downes that he regretted that, acting under the advice of a solicitor at Constantinople, he should have prosecuted Mr. Guarracino on a criminal charge, for which there was no foundation, there bring no imputation upon his honour or character.

Mr. JELF said he, on the part of his client, was satisfied with this, his only object having been to vindicate his character.

Accordingly a verdict was entered for the plaintiff for  £50 and costs, and,

His LORDSHIP gave judgment accordingly, observing that he thought the result was satisfactory.  They might have seen what his opinion was on this case.  It was manifest that General Downes had made a mistake and must pay for it, but having discovered his mistake he had, like a gentleman, acknowledged it, and the plaintiff, on the other hand, had frankly accepted his acknowledgment; both parties had been well adviser by their counsel, and the result was satisfactory.

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