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Decisions of the Superior Courts of New South Wales, 1788-1899

Gavin v. Tims [1821] NSWKR 7; [1821] NSWSupC 7

Van Diemen's Land - sale of goods - malicious prosecution - imprisonment for debt, capias

Supreme Court
(adjourned sitting at Van Diemen's Land)
Field J., 1821
Source: Sydney Gazette, 14 April 1821[1]

These actions all arose out of the same transaction. On the night of Mr. Loane's arrival from India, in the Derwent schooner, viz the 14th of January, 1818, Mr. Gunning and he entered into a contract to sell him all Mr. Gunning's horned cattle, 150, more or less, at £5 per head, to be paid, as it was first understood, by a book debt, due from Mr. G. to Mr. L. and the surplus in cash, or goods at cash price. Soon afterwards, Mr. Loane sent to Mr. Mitchell to the Coal River to brand the cattle in his name, but only 56 could be branded then, and Mitchell signed to Mr. Gunning the following paper:
"I do hereby promise and pledge myself, as the agent of, and responsible person appointed by, Mr. Loane, to receive and take away, in one month from this date, all the cattle branded belonging to Mr. Gunning, and to pay him in sterling money for the same; otherwise this bargain between Mr. L. and Mr. G to null and void, and of no effect. James Mitchell."
The witness swore that he communicated this act to Mr. Loane on his return, and that Mr. Loane said nothing. A fortnight afterwards, Mr. Loane himself went to Mr. Gunning's with Mitchell, and about 20 more were branded. Mr. Loane said nothing, about the new contract his agent had made for him, and only complained of the fewness of the cattle. He insisted that too many were expected from the branding as Mrs. Harris's (since Mrs Gunning), and ordered them all to be turned out, saying he would have the whole or none. This fact was most circumstantially proved by Mr. Lascelles, Mr. A. Luttrell, and Thomas Anglim. Mr. Lacelles was referred back to Mr. G. By Mr. Loane about the purchase of one of the cattle (a bull); and Mr. Luttrell added, that he was at Mr. G's house in April, or May following, when two notes of hand for £70 were presented by Mr. Loane's clerk to Mr. G. for his signature, but he refused to sign them by reason of them being payable on demand, and offered to give them at three months, since then he should be able to meet the payment from the produce of his cattle.
Under these circumstances, the Court were of opinion, that the contract was annulled, and that in the case of Loane v. Gunning, the plaintiff could not recover the cattle and their increase; that gave him a verdict, for the amount of his original and subsequent debt proved, viz £416 8s. 14d. not without a severe animadversion upon the state of Mr. Loane's books; by one of which it appeared, that Mr. Gunning's debts had been carried over to the credit side, to say paper, by means of which credit of £10 2s. was added into the debits.
On the 1st of June, Mr Gunning being in prison for debt, Mr. Loane, being afraid of losing his money, went to Mr. Gunning's farm, accompanied by seven men, and forcibly drove his whole herd to Mr. Morris's stock-yard, at the Tea Tree Brush, a distance of 6 miles; but the whole herd, comprising not only of Mr. Gunning's own cattle, but Mrs. Harris's, Gavin's, Rice's, and others', which Mr. Loane refused to deliver to their owners; somebody opened the stock-yard in the night, and let them all out. Many of course returned to their beat; but it being proved that 16 of Mrs. Harris's never came back (two of which were found dead), 10 of Rice's (one of which was found dead), and 2 of Gavin's, the Court gave Mrs. Harris a verdict for £240 damage as, Rice a verdict for £100 and Gavin verdict for £30.
In delivering these judgements, Mr. Justice Field expressed a strong opinion of the illegality of Mr. Loane's conduct; and said, that even if the cattle branded in his name had been his by payment and delivery, and supposing a man had a right to take his own property wherever he could find it, he must take especial care, that in doing so, he did not move a hair of one of the calves belonging to any body else. Sie utere tuo ut alienum non ledas [?], was a very wholesome maxim. Mr. Loane knew that this was a general herd; and if he could not take his own cattle out of it without driving them all into a yard together, he should first have gone round to all the proprietors of the herd, and had said, "I have cattle in the same herd with you; will you let me drive them all into one yard, that I may select mine from the rest?" Instead of this, Mr. Loane rides to the Coal River, with his posse, like the Provost Marshall at least, and takes the whole herd, in spite of what he calls the rescue of the owners of part, saying to them, "Wait till to-morrow morning, when I have summoned all the owners together, and then, if you can prove your property you shall have it." The next morning, Mr. Loane is pleased to call Gavin an honest man, and to constitute in the Judge of the owners property in these cattle. Gavin accordingly turns out some of Rice's, and is proceeding to liberate others, but is stopped by a dispute, either between one of Mr. Loane's men and Gavin, about one of Rice's heifers, or between Mr. Loane and Gavin about a cow and a heifer, which the latter claimed as Mrs McCarty's, though branded R.D.[?] by mistake.
This mistake was clearly proved by Mrs. Gunning in the cause of Gavin v. Loane.
The learned Judge held that, under these circumstances, even if it had been proved that Gavin had let the cattle out in the night, he would have been justified in doing so, after Mr. Loane's trespass upon his property.
Our readers will recollect, that this matter became at the time the subject of charges against Mr. Loane, before Mr. Humphrey and the Bench of Magistrates, by whom Mr. Loane was committed for trial before the Criminal Court at Sydney, but the information was not exhibited by the Judge Advocate. Mr. Loane then brought actions in this Court against Mr. Humphrey, and Mr. Gunning, Mrs Harris, Gavin, Rice, and others, for malicious prosecution in which the usual summonses to appear in Court and give security there were issued by the Judge, together with orders to hold to bail, one in £500 each defendant, and the other in £60 the damages being unliquidated. These summonses were sent by George Crossley, clerk to the late Mr. Amos (then Mr. Loane's Attorney), to Mr. Tims, the then Provost Marshal, with a letter of instruction to arrest, and himself hold the defendants to bail upon them; and in spite of the general instructions which that Officer had received from the Judge not to arrest, and hold to bail, except upon a capias, and in spite of the warning that he received at the time from the parties and others who read the summonses, Mr. Tim's persisted in his arrests, and held Mr. Humphrey, Mrs. Gunning (then Mrs. Harris), and Gavin to bail; and refusing sufficient bail for Rice, kept him in custody for 57 days and he was liberated by the Judge at the last Circuit. The defendant (Tims) under the Judge's order upon the summonses to hold to bail; and Mr. Moore for the plaintiff demurred to the justifications. Mr. Wylde supported the plea, but Mr Justice Field was clear that the demurrers were good, and that although by the practice of the Courts in England, the mere endorsement of a Judge's order, to hold to bail made a writ acceptable, which would not be [?] yet that here the published Rules of Procedure were different; and by the words of the Charter of Justice he must issue a capias [?] upon the return of a [?] before a defendant can be arrested. The affidavit of debt, or order to hold to bail in case of unliquidated damages, was subjoined to the summons, to shew the defendant, in case he chose to appear upon that process, what security would be required of him. In the case of Rice, the Court gave £50 as a compensation for the long imprisonment; but in those of Mr. Gunning and Gavin, there being no other inconvenience sustained than the trouble of finding bail, the Court assessed the damages at only £5 each.
The case of the arrest of Mr. Humphrey stood by itself; and it was proved to have been committed by the common bailiff on the Superintendent of Police, as he was going from the Bench of Magistrates to the Lieutenant Government House, in presence of an unusual number of persons, and they have been adopted and persisted in by Mr. Tims as to the bail bond, after personal caution and explanation of illegality both by the Lieutenant Governor and the Deputy Judge Advocate.
In this case, Mr. Justice Field said, that if the defendant had not been very justly suspended for his drunken ignorance, or malicious obstinacy, the Court would have marked their sense of this insult towards an eminent magistrate by a very severe verdict; but as the defendant was now poor and placeless, and as Mr. Humphrey's object in the suit was public protection, and not personal profit, the Court assessed the damages at only £25.


[1] See also Supreme Court of Civil Judicature, Judgment Rolls, 1817-1824, State Records N.S.W., 9/2231 (no. 405) ( Gavin v. Tims ); (no. 406) ( Rice v. Tims ); (no. 407) ( Humphrey v. Tims ).

Published by the Division of Law, Macquarie University