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Colonial Cases

Hoyt v. Dunn, 1870

[false imprisonment - judge contradicts evidence]


Hoyt v. Dunn

United States Consular Court, Kanagawa
Lyon, 1 September 1870
Source: Japan Weekly Mail, 3 September 1870, 415f



Kanagawa, lst September,1870.

Before Lemueal Lyon, Esq.

Hoyt versus Dunn.

G. Hurlbut

J. Allen, Jnr.  Assessors

This was a suit to recover damages for false imprisonment.

Mr. F. W. Marks and Mr. G. W. Hill appeared for the plaintiff; defendant conducted his own case, his application for time to procure a competent legal adviser from Shanghai having been refused.

Defendant demurred to the plea on the ground that sufficient cause to constitute an action had not been shown, and that evidence in the Court of justice was privileged.

The Court over-ruled the demurrer, observing that the single issue in the case was perfectly simple.

Mr. Marks in opening the case said that on the 31st July Mr. Dunn had sworn an affidavit in the U.S. Consular Court at Yedo, charging plaintiff with certain felonious acts, for which there was not a tittle of evidence, though plaintiff on the strength of this affidavit was arrested and imprisoned till bail was forthcoming, for two days from the date of arrest. The charge was gone into on the 12th and was unqualifiedly dismissed. (The learned counsel here quoted the judgment.) The petition was, he thought, singularly badly answered, being totally insufficient. and obscure. The only available plea was that of not guilty, which would only be good it it could be proved that Mr. Hoyt was not arrested. nor the information sworn by defendant. The second plea was that the matter was privileged. That might be a good answer to libel and slander ; but not to malicious arrest and false imprisonment. The third plea of justification was only an aggravation of the offence. The plaintiff had chosen the more moderate of the two courses open to him. Had he chosen, he might have easily inflicted upon Mr. Dunn by justifiable criminal proceedings the same annoyance and degradation that he himself had suffered. Blackstone remarked that another way of destroying a man's reputation was by setting up malicious charges against him, and pointed out the justice of a remedy such as that given both by English and American law-both of which treated such conduct as a heinous public crime, and further subjected the offender to a civil action. The verdict given by Col. Shepherd proved conclusively that there was no probable cause for preferring a charge of barratry, or conspiracy to commit barratry, or even conspiring to transfer the vessel fraudulently. As he observed at Yedo, the only suit for barratry, if any lay, would be against Mr. Johnson, defendant's legal adviser-which the law punished with seven years transportation.

George Washington Hoyt deposed: I am in business at Yokohama as coach proprietor and merchant. I remember that on the 25th July information was brought to me from Yedo by Mr. Barnard, who said he had sent me down a telegram, that an order had gone up there for my arrest, and that I had better be careful, as Mr. Dunn and Mr. Johnson meant to give me a great deal of trouble. I also heard from many people that Johnson had stated in the Club and other places about town that he was going to have me locked up in prison. I did not make any efforts to keep out of the way or alter my business arrangements. The books taken by the Consul at Yedo were those used in my livery and coaching business. I heard a rumour of it on the 31st July, and I was reliably informed of it on the 1st of August, when my manager told me of it. I went to Yedo that night when I was told by him. On the 1st of August the explosion occurred on board the City of Yedo. l arrived in Yedo at about 10 o'clock. Next morning I was placed under arrest by the U. S. Consul's Marshal-Mr. Rice. It was some time in the forenoon. I had been up all night, busy looking after those wounded by the explosion. At the time of the arrest the Consul told me I was arrested under a charge made by Captain Dunn. I asked him what charge? He said there were several serious charges-amongst others one that I was going to leave the country next morning. I told him he needn't believe them. I submitted to the arrest. Mr. Rice told me I must not leave or attempt to leave, and had charge of me the entire day. He never was more than fifteen minutes or so away and knew constantly where I was. I suppose he "kept his eye on me," I could see him very well. I had my meals at the same table with him. In the afternoon I saw Captain Dunn and Mr. Johnson who had come to Yedo. I was taken into Colonel Shepard's room about five o'clock. The charge against me was read and I was asked for my reply. That is a copy of the charge which was read.(Affidavit handed in.) Col. Shepard asked what reply I had to make. I said I had no legal advice and did not know when I could get it, my legal adviser being then in the country. Col. Shepard said he would like to ask both the accused and the accuser some questions. Mr. Johnson objected to any questions being asked his client; but the criminal (he referred to me) could answer as many as he chose, and made the further remark that he would not allow his client to answer because it would give the opposite side an idea of his line of action. Col. Shepard asked me if I had any objection to answer any questions? I told him none whatever. On second thoughts he declined to ask me anything, as he did not think it fair if the other side would not reply, to question me in the absence of my legal adviser. The trial was postponed to the 12th August. Mr. Johnson made the demand that "the criminal should be imprisoned" till the trial, as I was not a proper party to be at large. He asked on behalf of his client Dunn. Colonel Shepard made the remark that he should not keep me in jail, but hold me to bail for my appearance, Mr. Johnson then demanded that the bail should be put at $22,000 or double the amount of the damages sued for, saying it was usual to do so in such grave proceedings. I asked the Consul, if I was going to be put under bail, to have surety that the charge would be sustained. Mr. Johnson objected. Col. Shepard wrote down that each was to be bound in $11,000 to appear at his action. I tried to get bail at Redo, but did not succeed, and slept that night in the marshal's room of the U. S. Consular offices, where a bed had been fitted up for me. Next morning I asked the Consul to allow me go to Yokohama in custody of the marshal to get bail there. He refused, as Yokohama was out of his jurisdiction, and if I crossed the river at Kawasaki, I should be out of his jurisdiction, and he would be held responsible. This was on the 3rd August. That morning I sent a telegram and and courier to a friend at Yokohama to try to obtain two sureties for my appearance. I received a telegram at four o'clock to say that he had been successful in obtaining two sureties, and that they would arrive that night. E. C. Kirby and Geo. Van Hovenbergh came, and signed my bond about nine o'clock, and I was set at liberty. I appeared in Court on the 12th, in discharge of my bond, when the charge was dismissed. That is a copy of the verdict now handed in. The charge in the affidavit of Captain Dunn, that I was going to leave the country is unfounded. On the contrary I was making arrangements for entering into a permanent business, which would have necessitated my remaining in the country for a number of years. I had no intention whatever of leaving. That I swear to. I could not have done so, had I felt disposed to, in justice to myself. I might have gone away in a few months for two or three months on business.

By Mr. Marks. I consider that I have been put to over $1000 absolute expenses out of pocket by the arrest, and I would not have submitted to this for all the money in Yokohama itself. There is no amount of money to be put on the damage to my character. My business and prospects have been really seriously injured. Your own expenses are over $500, without the costs of Mr. Smith's trial or this one. Altogether have spent nearly $2000. Mr. Smith's trial would never have arisen had it not been for this. There are Mr. Hill's expenses and yours.

Cross-examined by Mr. Dunn:- The Marshal went with me almost everywhere. I was not restricted from looking after the wounded. Colonel Shepard was with me all night, and before daylight when on the Tokaido told me I must not attempt to leave, as he had serious charges against me. We did not talk about them, being fully engaged with the sufferers by the accident; I dined in the usual dining room at a table with the Marshal. It is most likely I should have gone to the French Hotel had I not been a prisoner, as they supply a better table there, and I had had nothing to eat all day. I slept in the Marshal's room two nights. I suffered no inconvenience - from the bed. On my oath I know of no reason or probable cause for you trying this action against me. I and my brother were partners once in Yokohama.

The Consul said that this was inadmissible.

Defendant said he wished to show that he did have probable cause.

The Consul:-The decision settled that at Yedo, and I don't want it re-opened here. This is merely a question of damages.

Defendant said that he could prove he had good and reasonable cause.

Mr. Hoyt:- I have no objection to answer any question. A man who tells the truth has nothing to fear. I was a partner with my brother from about the middle of 1869. I was manager for him before when he was away ill. I had the management of the Albion. He was ill for the first year he arrived here, and I went as purser in the Albion. I was not manager in Yokohama. I was not interested in the firm of Hoyt and McKinnon. I know that my brother borrowed $5,000 of you. I can't say whether that was used in the partnership. I was away in the Albion. I objected to it-both to you and to him-once to you in Nagasaki, if you recollect. I recollect we had a disagreement. The money was carried into the books. I don't know where it went. I believe to pay an acceptance of my brother's, C. J. Hoyt, to A. McKinnon for a share in the Albion. You had credit for it in the books, the same as any other man would. My brother was sending all the available money he could get to Mr. McKinnon. I collected $2,100 for you for Burgess & Burdick, for which you had credit of the firm. It was paid in the bank. The other was not. I kept my brother's books nearly up till he went. I can't remember if I gave you the last cheque you received. I belive [sic] Mr. A. H. Prince settled up with you for C. J. Hoyt's account. I remember the 15th June last settling a Hakodate affair of the year before. I do not recollect giving you a cheque on the Hongkong Bank on my brother's account on that day. I do not recollect the amount of the account due you from the Albion passed into the mortgage. It does not appear in any books that I have. The partnership books are not in my possession.

Mr. Marks objected to this as wasting the time of the Court.

Mr. Hoyt: I should like to answer some more questions, if Captain Dunn will ask them.

The Consul said that at Yedo the case was tried and dismissed, there being no cause for it, and Mr. Hoyt now claimed damages, he should not allow these questions to go on much longer since they had no bearing on the issue of the case.

Mr. Hoyt: I never had any disagreement with you since we left Nagasaki, except that we were never friends, and in a letter I have now in in possession you specially asked that C. J. Hoyt should come to Hongkong: you didn't want me there. I can prove that the firm has been dissolved.

Mr. Marks stated here that two months after the dissolution, defendant accepted a mortgage from C. J. Hoyt alone as security.

Defendant: That was a collateral security.

Mr. Marks: Collateral Humbug!

Mr. G. W. Hoyt applied to make a statement touching Mr. Dunn's evidence at Yedo.

The Consul refused, that case being dead and buried.

Mr. Rice deposed, that he was acting marshal of the U.S. Consular Court at Yedo, and arrested Mr. Hoyt as detailed in his evidence, and released him when the bail bonds were signed.

Case adjourned till 2 p.m.


Defendant here applied for Mr. Herbert Smith and Mr. Johnson's clerk to be summoned as witnesses.

The Consul asked what they were to prove,

Defendant replied, they were to disprove the statements contained in the petition.

The Consul replied that the Court had only to try whether Mr. Hoyt was imprisoned and damaged or not.

Mr. Dunn produced a letter from Mr. Johnson, which the latter insisted the Consul should read.

Mr. G. W. Hill observed that it was out of all reason to stop the Court's proceedings to read a private letter to Mr. Dunn from his attorney-especially an insulting one like that.

Mr. Dunn replied that he was only the messenger : the writer was responsible for his actions.

The Consul refused to receive it, or hear it read, though Captain Dunn said that the writer had specially requested that this letter should, though himself, be given the Consul! He added emphatically " I'm only a messenger."

Mr. G.W. Hill urged that after Mr. Dunn had taken the mortgage from Mr. C. J. Hoyt, Mr. G. W. Hoyt was relieved of all responsibility-was a total stranger-and therefore any prosecution for matters entered into with Mr. C. J, Hoyt afterwards must be malicious. But should the Court err in its judgment that might be reviewed in a Court of Error. If there was any indebtedness, why was not the best evidence of it-the mortgage itself produced. Mr. Dunn had not produced it at Yedo, nor could he do it here.

Mr. Dunn declared that he accepted the mortgage solely as a collateral security, and should prove by Mr. Wilkins that Hoyt had expressed his determination to leave the country, tried to sell off his furniture and City of Yedo, and to let his chambers. Mr. Herbert Smith's affidavit also showed that other people believed he was going away. He produced Parsons on Partnership to prove that a newspaper advertisement of a dissolution of partnership was not sufficient notice to creditors, who should each receive a notice.

Mr. Marks pointed out that a. little farther on it went to state that if a creditor accepted the individual security of one partner that relieved the firm of responsibility. This was precisely what Mr. Dunn had done, and materially strengthened the plaintiff's case.

Defendant argued that the charge of false imprisonment must fall to the ground, because the arrest was lawful, and that of malicious arrest must be be clearly proved to be malicious, and without any reasonable or probable cause, which had not been done. He had been cruelly victimised and ill-used, and he contended, had good cause for the arrest. Every transaction in connection with the Albion and City of Yoda was full of suspicion If the evidence taken by the Consul at Yedo did not justify him in granting a warrant, the fault lay with him, but it was not denied that prima facie  evidence existed, or that defendant lost the money advanced to, and used by the partnership. It was easy to say the Albion was lost.

Mr. Hill observed that false reasoning had been introduced into the case with the object of exciting sympathy for the defendant. The mortgage was perfectly good, and he could collect every cent of it if Mr. Dunn chose to entrust it to him, which he at one time though [sic] of doing. It was not necessary nor proper for it to be lumbered into this action, which was for a wrong done by malicious criminal proceeding against a third party. If C. J. Hoyt were the greatest scoundrel unhung-which was not supported by a shadow of testimony-that would not affect Mr. G. W. Hoyt.

J. H. Wilkin sworn: I heard Mr. Hoyt, some time before, the 27th July, say he was going to leave the country. Mr. Furniss offered me offices in consequence of Mr. Hoyt being about to leave Japan. I heard a very great deal about Mr. Hoyt's going away. On the 29th of July I was here at the U. S. Consulate, with you (Captain Dunn) and Captain Loch, and Mr. Lyon him self said he was sorry you had got into Hoyt's hands.

The Consul: Then you entirely misunderstood me. I said I was very sorry he had got into somebody else's hands.

Witness continued: Whilst we were here in the Consulate, Mr. Lyon observed that from what he had seen in the Consulate he believed that the Hoyts were d-d rascals.

The Consul: You swear that.

Witness: I do, sir.

The Consul: Were you told to swear that before you came here ?

Witness: No, I was not. (To defendant) Mr. Lyon also remarked that the Hoyts had been for some time past assigning away their property and he didn't believe you would get a cent. You were here in the Consulate and heard Mr. Lyon say so yourself. It was when you presented your bills to get protested.

The Consul : What was your answer ?

Witness repeated it.

The Consul: There were never any notes presented here to be protested by anybody. I have never seen any notes. I saw some copies of some notes, but they were never resented here to be protested. (To the Marshal) You may putt that down on the record. The Court states so in contradiction of this evidence.

Witness Wilkin: I am aware they were the certified copies of the notes, and not the original notes.

The Consul: No sir, not at all.

Witness: I was here with Capt. Dunn when he presented them.

The Consul: I want no discussion about it. It isn't so. If you say it is, you swear to a falsehood.

Witness: Why, you said you would do all that God Almighty could to assist Capt Dunn.

The Consul: I told him over and over again I would do all I could to assist him. I told him when he came in, and if he had given bonds he might have had it done. However, I don't want any discussion either with you or your employer. Read your evidence through and sign it if it's right.

Witness looked at it and said " Oh! it's altogether wrong. I believe I said in my evidence Mr. Hoyt told me himself he was going to leave the country. I believe I also said that Mr. Lyon told me he was going to leave the country.

The Consul : If you did so it is not true. You and your employer have been in here with so many requests and so many letters, and so much talk, that your heads would manufacture anything at all between you. Its no use your coming here with talk about notes being protested.-

Witness: They were copies.

The Consul: With copies, then. There were never any protested by me. I can only say that on are mistaken, and it's my opinion, you are wilfully mistaken. Now, sir you had better be careful in your testimony. There was a good deal of talk amongst the party who came in here, and when I refused to grant papers in a civil suit without bonds you shoved them very impudently into my face, asking me to put it on paper. There was a great deal of talk about d-d rascals and piracy between you and Captain Dunn. I said "However they may be d-d rascals or anything of the kind, I cannot issue these papers, without proper bondsmen."

Witness made some remark the reporters did not hear, on which.

The Consul said : Stop that talk, Sir ! Stop it! I have had insolence enough from your employer and I wont take it from any of his understrappers!

The witness commenced floundering in a mass which defied reporting, and rendered the task of correcting his testimony in the record for the second time far from unnecessary. The only thing intelligible was that it was "all wrong" again, and the month of June was now fixed on the date of Mr. Hoyt's confession of intention to abscond.

Mr. Dunn remarked that the alleged imprisonment was merely technical, that no real hardship had been experienced from Mr. Hoyt's being detained at Yedo, made to dine in the Yedo Hotel, and made to sleep in the Marshal's room. Again the $2000 he had spoken of as being put of pocket was made up of first a payment to Mr. Mark of $500. Witness' attorney's bill was only $150. He never had a particle of ill feeling against the plaintiff, and the evidence of the witness Wilkin clearly showed that there was good reason for supposing Mr. G. W. Hoyt was about to quit Japan. His sole intent was to act in good faith and get the money plaintiff had deprived him of. Plaintiff was the last man he saw on board the Albion, yet he pretended to know nothing about her, and strange was the conduct of Mr. Henry Hoyt, who Just arrived, bought up all the property he could and left immediately.

G. W. Hoyt recalled, stated that some time in June, I received a letter from Mr, Marks introducing Wilkin as a young man just from New Zealand. I told him I did not want his services and was curtailing my business. I don't remember ever distinctly telling him I was going to leave Japan. Mr. Johnson wanted to take my offices, but Mr. Furniss preferred me as a tenant at a lower rent. I had no intention of leaving the country. I might have gone, had I sold the City of Yedo, to San Francisco for a month, and returned.

J. H. Wilkin: Perhaps you know more about my business than I do? The City of Yedo was sold on the 8th July. This conversation took place in June, before Mr. Barnard went to Shanghai. I could not swear there was a mortgage upon the Albion,-certainly not that I wrote it. I do not recollect co copying of a document from Jardine, Matheson, & Co.'s, and afterwards going there, and to the English Consul afterwards. I never wrote nor read the mortgage.

Mr. Dunn said he could not produce the mortgage, which was now at Hongkong.

Mr. Hoyt retorted that he could produce the man who did write it. He never intended to leave the country at the time he was imprisoned, - on the contrary, was negotiating a partnership with another resident.

Mr. Marks offered himself for examination: as to Mr. Hoyt's leaving the country, but the Court thought this evidence unnecessary.

After consultation the Court awarded plaintiff $300 damages and costs of Court.


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