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2-001 (Raw)

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Decisions of NSW Supreme Court
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This was the action brought by the plaintiff to recover damages for a malicious prosecution instituted by the defendant. - The damages were laid at £1000.
The declaration in this action contained two counts. The 1st set forth that the defendant on the 17th day of November last, at Parramatta, went before Mr. James M'Arthur, one of his Majesty's Justices of the Peace for the colony, and charged plaintiff with having feloniously killed and slayed an ox, the property of said defendant. On this charge the Magisrates [sic] granted a warrant, authorising the taking into custody the body of plaintiff, and bringing his person before the Magistrates, at the police bench at Cawdor. That the said plaintiff was arrested, remained in custody for the space of seven days; and was eventually committed to take his trial before the Supreme Court. The Attorney General refused to present an information.
The examinations at the Police Office were put in - H.C. Antill, Esq. J.P. examined - Knows that the depositions put in were taken - witness proved the various signatures.
W. Wilkes - Knew Doyle a stock-keeper in plaintiff's employment - he is now dead - recollects once having had a conversation with him on the subject of a bullock which was in plaintiff's possession - heard defendant's servant man tell plaintiff's servant that his master (meaning defendant) would let Klensendorff have the bullock for £7 and he might then do as he liked with it.
Cross-examined - Two other men, named Cooling and Stockwell, were present at this conversation.
W. Scott - Is a constable - was at Bong Bong in the month of June last year - attended a sale of cattle there plaintiff was there and bought three head - recollects a strayed ox, which was then in pound, rushing out and joining Klensendorlff's cattle - a short time after defendant told witness that Klensendorlff had killed a bullock belonging to him, and said that it was the same beast which joined his cattle on leaving Bong Bong at the sale. Witness then acquainted defendant of the manner in which plaintiff became possessed of the animal, as he before related - defendant observed that he, however, would prosecute Klensendorlff for killing the bullock.
Joseph Wild - saw the bullock in question get away, in the manner described by last witness - endeavoured to draft the beast from Klensendorff' [sic] herd, but was unsuccessful - the strange beast was rather wild - considered it best to run it with the other cattle which it had joined to plaintiff's farm - assisted in doing so - on reaching there, drove the cattle into a stock yard, and drafted the wild animal from the others, by roping him to a fence when in the yard.
Robert Rowe - Was present at the delivery of a message by plaintiff's servant man from defendant's servant, that his master was agreeable he (Klensendorff) should have the bullock for 7 l.
H. Wrensford - Was in the employ of Alex. Still, in November last - has heard defendant say, in speaking on the business of the bullock being killed, that he should now have an opportunity of retaliating on Klensendorlff - has heard defendant speak of plaintiff in the terms "a pure Merino" - believes this to be a cant word for free settler - defendant said, "although Klensendorlff came out here free, I'll soon make a convict of him, if he does not keep a sharp look out;" or words to that effect - witness kept a diary on the farm - entered therein every minute circumstance which transpired in the course of the day.
Mr. G. Brown examined - Is innkeeper at Liverpool - remembers defendant saying on one occasion, in speaking of plaintiff about this business, that Klensendorlff had had a run for a long while - that he had been on the look out for him - had got him at last, and would settle him - he seemed to speak this in a very malignant tone - defendant added that he would stop Klensendorlff's galloping if it cost him (Oakes) 1000£ - that he had some good fat cattle up the new country, could soon get them down - and this he would do, if necessary to prosecute him.
Mr. John Cullen - Heard defendant, in allusion to plaintiff, say, that he did not think he would ride much longer in his chaise - that he would "clear him off" now - would stick to him for killing his bullock - said he would "lag" him, meaning transporting him. This was spoken in a malicious tone.
Cross-examined - understood by the word "clear him off" that it alluded to plaintiff, who keeps a public house, and is said to let people leave his house generally with empty pockets, when they get drunk there.
Mr. J. Kelly had seen the beast spoken of by the other witnesses - considered its fair worth to be about £7.
Mr. John Ikin - was chief constable at Liverpool last year - he took plaintiff into custody - he was under an arrest for seven days - he was under arrest with a strict proviso, that the prisoner was to have no communication with any person - brought him to Sydney in his company - has heard defendant express himself in very malicious terms of plaintiff - recollects defendant once taking out his pocket-book, and holding a cheque on the bank for 350£ in his hand - said he had just received it for some bullocks he had sold, and would spend the last farthing of it, and more, if necessary, for the trial.
Thomas Moore, Esq. - is Justice of the Peace in the district of Liverpool - some time in the latter part of last year defendant came to him, and requested a search warrant to discover a hide, which had been taken from the carcase [sic] of a bullock he stated to have been feloniously slaughtered by Mr. Klensendorlff witness gave it as his impression that Mr. K. would not be guilty of any such act - witness, as also Mr. Oakes were at this time aware how the bullock had come into plaintiff's possession - witness gave his opinion that there was a mistake in the business -- and further stated, that under the whole circumstances of the case, he could not see how the alleged offence could possibly be construed into a felony - defendant on this occasion said, "cost what it will, I'm determined to prosecute him" - he seemed to speak in a very determined and hasty manner considers plaintiff to be a man of property - is not acquainted with defendant's circumstances.
William Lithgow, Esq. examined - remembers an application having been made to the government some time ago by plaintiff for a grant of land - this was towards the close of Sir Thomas Brisbane's administration - in the absence of the Private Secretary was directed by his Excellency to communicate to Mr. Klensendorlff, that the prayer of his petition for a grant of land cold not be acceded to, as his conduct was then under investigation on a charge of felony.
William Fletcher - was gaoler and constable in June last year - was authorised by warrant to take plaintiff's person into custody arrested him when riding in company with one of the Magistrates - it was court-day at Liverpool - there were a number of persons present - knows plaintiff was committed to gaol - witness represented to the Bench that there was no room in the gaol - plaintiff was in consequence given into the custody of the chief constable.
On behalf of the defendant it was objected, that the action did not lie, because the plaintiff must be non-suited on the ground that the charges made by the defendant, as appeared on the affidavits, did not amount to felony, and the committing Magistrate had erred in his judgment for committing the plaintiff for felony, and for this the defendant could not in law be accountable - that the defendant, in submitting his complaint to the Magistrate, had merely stated facts, from which no inference of felony could be drawn.
The Chief Justice said, he was inclined to put the case to the Assessors on the evidence - raising the point for after-consideration, on a special verdict - it was a critical point, and one in which at present his Honor would give no opinion.
Mr. Saxe Bannister, examined - received two letters, directed to him as Attorney-General, on the subject of a charge preferred by the defendant against plaintiff respecting a bullock, which it was alleged the former had stolen. The first letter he received on the 31st of December - it was a requisition to him to prefer a criminal information against the said plaintiff - did not do so - advised the present defendant to enter an action in trover to recover the amount of the beast - and on the issue of that it would depend whether he filed a criminal information.
Mr. James MacArthur - is one of the Magistrates for the district of Cawdor - recollects several witnesses being examined at that Bench, relative to this affair - the Cawdor Bench is the nearest Court to Myrtle Creek, the residence of plaintiff - any witnesses he wished to send for he might have had, by applying to the Bench - has heard a report of a charge having been made on a former occasion against plaintiff, for felony - had no better opinion of him before that transaction at the Court, than he has at the present moment - considers plaintiff to be a very litigious person.
Cross-examined - means the former act of felony to be a something of difference between relations a long time ago - is not aware that it is the common practice for Magistrates to refuse evidence in favor of persons under examination for felony - has been a Magistrate about 12 months - during which time, several cases of felony have come before him - if accused parties wish evidence to be heard in their favor, that request is complied with - when there does not appear to the Bench to be sufficient evidence to commit at once - or where doubts may exist as to the guilt of the accused. Witness committed plaintiff under the impression that a felony had been committed - instructions were given to Iken, the chief constable, to be present at any conversations he might have had with any one - believes plaintiff was not commited on the first day, in order that he might have time to bring his evidence on the next Court day.
Alexander Still, sworn - knows Mr. Wrensford - he has been a witness in the case - would not believe him on his oath - considers plaintiff a very litigious man.
Cross-examined - Wrensford and witness are at varience.
Daniel Stockwell - is a servant to defendant - remembers the bullock in question was left behind on the road not far from Bung Bung - it was "knocked up" - was obliged to leave it behind - the beast was afterwards impounded in the town - enquired of several persons about the beast - among others asked plaintiff's wife - she denied all knowledge of it - afterwards spoke to one of plaintiff's stockmen - he told him the bullock was on their run - saw the animal - told the plaintiff of it - did not send any message to plaintiff, as coming from his master (defendant) by any one - never did so by "Doyle" - plaintiff told witness he would give defendant 5 l. 10s. for the bullock - endeavoured to drive the beast to defendant's farm, but could not - it was too wild.
Cross-examined - witness never told his master of the offer plaintiff made.
Re-examined is quite certain his master never said he would take any money for the bullock.
Thomas Cooling - was arrested in September last, at the instance of plaintiff, for debt - was present with Doyle, in Sydney, at the conversation in Hunter-street - heard nothing said about a message from defendant to plaintiff, respecting the bullock - must have heard it if any thing had passed on the subject - has not been brought up from gaol to give evidence - received no message from plaintiff a short time ago - he promised to do great things for him - among others, restore him to liberty, if he spoke the truth relative to this business - understood from that that plaintiff wished him to perjure himself.
Here the defence closed.
Mr. George Brown, recalled for the plaintiff - was present with Mr. Klensendorffe at defendant's house when the witness, Stockwell told him and Mr. K. that he had delivered plaintiff's message to defendant, sent by him about the purchase of the bollock. [sic]
Mr. Blake - was called to invalidate the same witness's testimony.
Solomon Solomon's [sic] - that of Coolings.
His Honor summed up - at that late hour of the night (8 oclok [sic]) he should not traverse over the wide field of evidence which had been collected together; but should as briefly as possible descant on those points which had their bearings on the cases - rejecting all extraneous matter, and drawing the attention of the assessors to those parts of the evidence which had their connexion with the case either for or against - with that resolution, he would proceed, observing by the way that he had thought it prudent to reserve the question as to felony, &c. for an after hearing - having this object in view - in giving a decision therein hereafter, he might have full leisure to examine and attend to what, he would then profess, appeared, to him a very critical and nice point; and in order that there should be no occasion for a new trial hereafter, seeing what inconvenience would result, on account of such a vast number of witnesses having to be subpoenaed, and they, too, scattered, and at so great a distance from the interior: his Honor would therefore go at once into the evidence, and state in the outset, that taking the whole evidence together, he must give it as his opinion, that there did not appear on the plaintiff's part any intention to commit felony - there was enough to satisfy the mind of defendant, that plaintiff had no intention to steal the bullock - which appeared to be a circumstance generally known throughout the country, at least so it would seem, from so many persons then before the Court, who were acquainted with the facts - there were a number of evidences who spoke to those facts, and if the Jury believed them, it would go at once to disprove the presumption of a felony - there was some respectable evidence, and he was always desirous of setting up the most unimpeached testimony, leaving Wrensford's evidence out of the case, but it was for the Jury to give what credit they pleased to that - there was Mr. Browne's evidence, to which no objection had been made - there was also Mr. Moore's testimony - both of whom spoke of the rash and intemperate expressions used by defendant - especially the word "lag" - what must be inferred from that - it could not be an expression, coming from a mind in pursuit of honest, temperate justice? - Mr. Moore had very properly told him there did not appear to him any thing like felony, committed in the case - but defendant said he would prosecute. Taking, therefore, those unobjectionable evidences, did it not go to shew, that there was malignant feelings in the defendant's mind, from some course or other? supposing, then, the Assessors should be of the same opinion, their next consideration would be to estimate the damages. It appeared that plaintiff was a man of good possessions - he had land and stock, and was in a respectable way - witnesses had come forward to impeach his character - that was open for the defendant to do, to rebut the averment of general good character, in order to prove that plaintiff had sustained no injury - but from what could be collected, it seemed he was a litigious man - that was the substance of what the witnesses had said - nothing could be found to go further than that - but because a man was litigious, surely he was not to be charged with a felony - plaintiff was then to be considered a respectable person - he was taken into confinement, although from its nature it was, no doubt, a gentle mode of treating him - but he is put to inconvenience defamation in character, for which he would be entitled to compensation, by damages, at their hands. - With respect to the specific damage, it was difficult to know the value of the land, of which it was set forth, plaintiff was refused, in consequences of the prosecution, and besides, it was impossible for the Court to say, whether, supposing the reason which was assigned for its refusal at that time, even, had not an existence, than that the plaintiff should have had a grant given, - and if even he had, what would be the quantity - however, there must certainly be some damage, and it would be for the Jury to judge the measure of it.
A Special Verdict, at the suggestion of the Chief Justice, was returned - Damages £50 - subject to the opinion of the Court, as to whether the charge amounted to a charge of felony.