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Colonial Cases

Caldwell v. Miller, 1874

[wrongful arrest - ne exeat regno]

Caldwell v. Miller

Local Court, Palmerston
Price SM, 1 September 1874
Source: Northern Territory Times and Gazette, 5 September 1874, pp 2-3


(Before Mr. E. W. Price, S.M.)
Tuesday, September 1
(In Chambers.)
Caldwell v. Miller.-J. D. Miller came before the Court on account of an arrest, he having been detained by a warrant issued at the instance of Mr. Caldwell at the time of the Gothenburg's departure. The debt was for the amount of £50 odd; but defendant denied that he intended to leave the colony and asked for compensation.
Mr. Smith, who appeared for Mr. Caldwell, said he could show that Mr. Miller had made away with £2,700 during the last eight or nine months. That money belonged to his creditors-one of whom was Mr. Caldwell; and the question was what had become of the money? He did not spend much; he was not a gambler; and he must either have sent the money away or secreted it. No doubt that money had been improperly disposed or a gross fraud had been committed, and the creditors were anxious to trace the money, which they might do if the prisoner were kept in confinement. The issues now in Court were, first, was there reasonable ground for supposing prisoner was about to leave the colony; and secondly, what punishment ought to be awarded to him? However, he would call witnesses to show that there was reasonable ground for believing the prisoner was about to leave the settlement, and that he had means in his possession; and it could also be shown that he had been in the habit of doing what he had now attempted; and that he had once been provided with lodgings by Her Majesty on that account. There was every reason to believe that prisoner now had something like £2,000 in his possession belonging to creditors, and obtained by fraud, and which he had intended to take or transmit to Melbourne. It probably had been transmitted, and prisoner could now recall it and pay his creditors, when he would be free to go where he liked.
Mr. Caldwell said defendant owed himself and others various sums or money. McCallum, Neil, & Co., of Melbourne, were creditors for about £300. Defendant had also admitted receiving £400 from his partner, Rickards; also £500 which he said was from a friend (Mr. Sebbes). He also spoke of a second sum of £800 from his partner. The day before the Gothenburg sailed defendant said he was not going away. Witness asked him why he was down from Southport, and he said he would go back by the Dot on that day. He did not go back, but called again in the afternoon and said he would not leave his hotel that night. Went to him at 6 o'clock next morning. He was not in; and his luggage was not there, excepting a carpet bag nearly empty. Went on board the Gothenburg and had a search made. Went out of the harbor on board the vessel, but did not see defendant. He distinctly promised that he would not leave the public-house. Was told by Mr. Baker that defendant said on board the Dot that he intended to go away and commence business in the other colonies, but not in Melbourne.
By Mr. Rudall.-Defendant promised to be present in his lodgings at 6 o'clock, but he was not there. Don't know where he slept. Saw him late at night. He was arrested on Saturday after the steamer had sailed.
The evidence of Mr. Caldwell, as to defendant having promised to stop at the public-house, was confirmed by Mr. F. V. Smith; and Mr. Fischer, publican, said defendant was at home at 11 o'clock at night, but could not say where he was in the morning. Had heard that he was gone to bathe. The other evidence was partly supported by T. Baker, who said he heard defendant say he was thinking of setting up as provision dealer "on the other side" if he could get £300. Believed that defendant intended to go away, and, therefore, mentioned it to Mr. Caldwell. Nothing was said about the Gothenburg. On the subject of defendant's luggage, Mr. Sinclair said defendant owed him £84. Saw him with two large packages on his arrival by the Dot. But his usual luggage was a small valise merely. Could not say to whom the luggage belonged. another witness, C. Schmid, said he only saw a carpet bag when Mr. Caldwell called in the morning at Miller's lodgings; and the bag did not seem so full as before. Believed there were two packages at first. He was an hour and a half away on that morning. There were some of his books in the room.
J. D. Miller, the defendant, said he owed £150 to Mr. Caldwell, £103 to Mr. Lindsay, £100 to Mr. Sebbes (had £500 from him). Gave him some stores purchased from Solomon and Peters. The stores were £80 worth from Solomon. Had an invoice from McCallum, Neil, & Co. It was all disposed of, as well as other invoices. Did not undertake to return by the Dot on Friday, but said he would remain at Fischer's. The next morning went to bathe; and was bathing when Mr. Caldwell came to look for him. Had no intention whatever of returning by the steamer. The luggage which had been spoken of consisted partly of washing; and there were books and papers in the other parcel. Did not promise to meet Mr. Caldwell at any particular hour of the morning. Never said he intended to set up as a provision merchant beyond Melbourne if he could get £300. Never said such a thing to a living soul, but remarked to Mr. Radford that the business of preserving vegetables would pay well in Melbourne. Only left Fischer's to bathe, which occupied about three-quarters of an hour.
Said that he would return in the Dot if he finished his letters in time.
Never promised to return in the Dot unconditionally.
Mr. Caldwell was recalled, and stated that Miller promised distinctly to go back by the Dot.
Mr. W. V. Smith also stated that Miller undertook to return by the Dot unconditionally. On finding that he was not gone, and remonstrating with him he said that his letters had detain him.
C. T. Rickards said he was lately in partnership with defendant, and placed £800 to the credit of the firm before leaving Melbourne. Had since advanced £400. That was in February last.
Defendant on being recalled said he had less than £15 when he arrived from Southport. His last remittance home was £30. Had never misappropriated a single farthing; and was willing to have his books examined by an accountant. Never sent away any money by the Gothenburg.
The Court adjourned the case as to the debt until the first Wednesday in October; the defendant in the meantime to remain in custody or find two sureties in £50 each.
Mr. Rudall and Mr. Jas. Burton were accepted as sureties.

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