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

Bensley v. Stroud (1829) NSW Sel Cas (Dowling) 734; [1829] NSWSupC 18

malicious arrest - felony attaint - married women's legal disabilities, wife of convict - imprisonment for debt - legal practitioners, division of profession - legal practitioners, liability for negligence

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 26 March 1829

Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462

[pp 158-159] [In an action on the case for a malicious arrest, without any reasonable or probable cause, it appeared that the defendant had acted under the legal advice of a barrister Attorney of the Supreme Court   Held that if the defendant had (as a question of fact for the Assessors) acted honestly, and bona fide under the advice of her barrister attorney she was not liable]

[p. 158]

March 26th 1829

Bensley v Stroud

Trespass on the case for a malicious prosecution without any probable cause General Issue 2nd Coverture with one Barg.Rep. 1st 2nd Convict attaint since the marriage.

Mr Stephens opens case.

[p. 159]Mr G Rogers Clerk of Court.

I produce the writ of Capias under which the Plaintiff was arrested.  Record of Judgment in that case Affidavit of debt of Ann Stroud.


There was a nonsuit

The Chief Justice did not hold that the party was.

Affidavit of debt read

writ returned arrested and lodged on the 14th October on the 16th December let out of prison. 

Mr J James.  This is the writ of my return to it.  The Defendant was lodged in Gaol on the 14th October.  she was Bailed on the 15th and on the 31st same month the Bail surrendered again.  I don't know when she was liberated.

Rexd.  I saw her surrendered.

Wm Todhunter  I witnessed this paper between Ann Stroud and Barzilla Benzly signed.

Reads 30£.

[p. 160] The agreement was executed in Sydney   Mr Bensley was present at the time the agreement was executed.  The defendant is an infirm old woman nearly 90.  This old lady signed her mark.  She lives in Sydney I am acquainted with her circumstances.  This Farm is her only support, it is at Liverpool.  The value 30£ a year currency.  I don't know where Mrs Benzley Barzilla is no longer in the Colony.  I don't know under what circumstances Benzley left the Colony.

John Stephen  In Esqr I am Registrar of Supreme Court.  I hold in my hand the information against Barzilla Benzley tried on 14th February 1828 for Cattle Stealing plea not Guilty adjourned on the 1st March following sentence of death on 8th Execution issued returnable on 19th on 17th respited until the Governor's pleasure shall be further known.[1 ]

Richard Prior  I know Strouds within 2 miles of  [p. 161] Liverpool Benzley rented it by the year.  I understand a man named Tucks lives there.  In the course of last Benzley's time was up.  It was rented for five years before to Benzly.  He rented it of Mrs Stroud but young Dwyer has been occupying it since Benzly left.  Benzly did not stay above 5 or 6 months, and then the Dwyer's.  After Dwyer one William Tuck had it from William Stroud.  He put some corn in.  He must have had possession for six months.  I knew Mrs Benzley she occupied it five or six years ago with her husband.  I lived on the farm with them they were not in possession above five or six months I drew the agreement up between Mrs Benzly and the Dwyer's.  When Bensly let the farm to them.  I have seen Mrs Bensley since her husbands misfortune.  I have has a conversation with Mrs Benzley about this matter.

Wms admits that it was on this agreement the action was brought.

Mr Stephen  I admit that Mrs Bensley is [p. 162] a married woman and her husband is now alive, but convict attainted of felony.


Mr Williams  It must be cleared up.  If any fault has arisen from wrong Instructions.

No notice of Action

Beazly being condemned to death, he was dead in law.

No Malice

Advice of Attorney.

no malice other no probable cause of action

3rd She has no property of her own hands

Pleadings a pardon

I was willing to pay my own costs.

Elizabeth Apsley

I have seen the plaintiff since the removal of her husband from this part of the Colony I have heard some conversation between the Plaintiff and Defendant relative to the payment of rent of Mr Strouds farm.  I took it to Mr Owens in Pitt Street shortly after Benzley [p. 163] came to the Gaol.  He had not then taken the Trial.  Mrs Benzly said it was her husbands wish that she should come and pay the next as soon as possible and promised Mrs Stroud in the presence of me and Mrs Owen that she would do so after the conviction of Benzley she promised me that she would pay the years rent to Mrs Stroud and appointed a day to pay 5£ and another day the remainder.  I have heard her Mrs Benzley say since her husbands departure that she has property of his or that he possessed consisting of Cattle.  Moreover she told me that she was going up the Country to fetch some down to sale  This conversation took place partly at Mrs Owens and partly at Clarksons.  I am Mrs Strouds Grandaughter.  The Defendant is worth nothing.  She said it was her husbands wish she should pay it.  I am sure Mrs Benzly lived there 7 months when she first went on the farm.  I think it is some years the 30th of this months since she went to live there.  This farm was let [p. 164] to the Plaintiff her husband.  Dwyer took the farm.  A man named Tuck is here, and has been there only a fortnight today.  The Farm has not been occupied by Mrs Benzley for the last 12 months.  There was one years rent owing it was her husbands wish to pay it.  It was due last March.

The Defendant has lost one years rent.  She received 4 years rent from the Benrss.

Wm Williams Esqr.

I was consulted by the Defendant a short time previous to the last term.

I considered that he had a good right of action against the Plaintiff and the ground of my so considering was the text in Blck Vol1 158 where I advised her that she had  good cause of action.  The action was brought by my advice.  Whatever step was taken was done by my advice.

The party being a convict attaint and admission after Transportation and that the [p. 165] Plaintiff became liable on her new promise liable as execution that he had admitted it.  I did not recommend her being arrested.  The affidavit was drawn by the clerk.  The defendant had nothing to do with; if anything wrong was by my advice.


Case for a malicious arrest and false imprisonment of the Plaintiff without any reasonable or probable cause.  At the trial before Dowling J on the 26th March 1829 it appeared that the plaintiff had been married to Barzilla Benzley who rented a farm of the Defendant near Liverpool, and became indebted to her for rent Benzly was afterwards convicted of felony and sent to Norfolk Island.  The Plaintiff during the coverture was arrested at the suit of the Defendant for the rent due by the husband under advice of an Attorney of this Court, who by the usage of the Court was allowed to practice as a barrister the defendant proceeded in the action and was nonsuited by the Chief Justice on the ground that [p. 166] the Plaintiff was not suable as a feme sole,  The Plaintiff remained in prison for want of bail from the 14 October to the 16 December and was then let out of custody.  On the authority of the case of Ravenger v Mackintosh 4 Dow & Ryland 187.  The Judge left it to the Assessors to say whether the defendant had acted bona fide upon the opinion of his professional adviser.  He told them that if they thought she had acted on his opinion believing it to be law; and believing that she had a fair legal claim on the Plaintiff then they ought to find their verdict for the Plaintiff but that if they were satisfied that she knew she had no real cause of action, and had arrested the plaintiff for the purpose of compelling her to satisfy a claim for which she was not in law liable, then they were bound to find their verdict for the Defendant who was proved to be an illiterate woman about 80 years of age.  Stephen now moved for a new trial  He did not dispute the authority of Ravenger v [p. 167] Mackintosh but he contended that the rule there laid down did not apply to the case of an Attorney of this Court, who happened to be allowed to practice as a barrister.  In the case of a barrister properly so called who is supposed to act upon the guidance he is not responsible for his advice, and no remedy can be had over against him; but as an Attorney acts under a retainer he is responsible to the law if he committed any blunder or error.  She was therefore primarily liable to the Plaintiff for the injury sustained by the illegal arrest and if she acted under improper advice she had her remedy over against her Attorney for any damage sustained by his improper advice.

Williams contra was stopped by the Court.

Forbes CJ  This being an action for a malicious arrest, it was properly left to the Assessors by the Judge as a question for them to determine whether the Defendant acted fairly honestly and sincerely upon the advice she received from her professional adviser.  If the defendant acted under the advice of counsel, and left her case [p.- not numbered] entirely in his hands and he carried on the suit, I cannot see how it could be predicated that she acted maliciously.

In this Court, as the Bar is at present constituted I cannot see how any distinction can be drawn between an Attorney and a Barrister, as both characters are united in the same person.  I think this case was properly left to the Assessors as a mixed question of law and fact.

Stephen J. commenced.  If a client acts honestly under the advice of an Attorney properly so called I think it would be extremely unjust to make the Client liable for the consequences and in this respect I can see no distinction between an Attorney and a Barrister.  In Ravinger v Mackintosh the person who gave the advice was a special pleader, and not a barrister.

Dowling J.  So long as the Attornies of this Court are allowed to practice as Barristers I think they are entitled to the privileges of [p.- not numbered] the latter character.  As an Attorney only I am not prepared to hold that a gentleman practising in that character would not be liable over for any injury arising to his client from ignorant or improper advice.  The circumstance of the Attorney in this case being allowed to practice as a barrister governs my decision, and in this respect I think of Ravenger v Mackintosh is analogous.  An Attorney like a Surgeon or Apothecary is liable to his client for maladvice as the medical practitioners of the class alluded to are liable to their patients for ignorance or negligence.  In the present case I think the proper question for the assessors was whether the defendant had bona fide acted under the advice of her counsel or Attorney.

The thought she had and I think their decision was right, it appearing that the Defendant was an unlettered person far advanced in life.

Rule Refused



[1 ] See R. v. Bensley , 1828.

Published by the Division of Law, Macquarie University