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

Roach v Fitzpatrick and another [1830] NSWSupC 45

trespass to the person, false imprisonment, Court of Requests, imprisonment for debt, damages, nominal, damages, exemplary

Supreme Court of New South Wales

Dowling J., 18 June 1830

Source: Sydney Gazette, 19 June 1830


FRIDAY, 18th.

(Before Mr. Justice Dowling.)

Roach v. Fitzpatrick and another.

This was an action for trespass and false imprisonment, in which the plaintiff sought to recover damages of the defendants for an alleged illegal arrest and assault on his person.

The defendant pleaded a justification; namely, that the arrest and imprisonment was by the authority of a writ under the hand and seal of Roger Therry, Esq. Commissioner of the Court of Requests.

It appeared in evidence for the plaintiff, that he was sued in the court of Requests, for a small debt, by Mr. E. S. Hall, in whose favour a verdict was given by the Commissioner.  An arrangement was then entered into between the parties, and Mr. Hall gave the plaintiff two months' time to pay the amount of the judgment, at the expiration of which period, the money not being forthcoming, execution was taken out in the usual way, and the writ placed in the hands of Bernard Fitzpatrick, the bailiff of the Court of Requests.  It appeared also, that one day, about the middle of March last, Fitzpatrick and the other defendant, a man named Ryan, who was an assistant bailiff, met the plaintiff in the street, arrested and took him to the gaol, where he saw Mr. Hall, who consented to his being liberated, on condition of obtaining the undertaking of Mr. Sydney Stephen to pay the amount demanded of him.  Fitzpatrick accordingly took the plaintiff to the Supreme Court, where Mr. Stephen then was, and on his promise to satisfy the claim, the plaintiff was permitted to go at large.  This was on a Monday.  Mr. S. however having forgotten to pay the money as he had promised, Fitzpatrick and the other defendant again arrested the plaintiff, on the evening of the following Saturday, and took him to the house of Mr. Stephen; but as it was then too late an hour to get a check cashed, Mr. Stephen said he could not pay the money then, but would have given it.  The defendants refused to accede to this, and took the plaintiff to gaol.  Mr. Hall then consented to take Mr. Stephen's written order for the money, and to liberate the plaintiff.  The order was accordingly procured, and a written discharge handed to the plaintiff.  This not being the regular mode of proceeding, the keeper of the gaol refused to liberate the plaintiff, in consequence of which two men went the same might to the house of Fitzpatrick, to obtain a proper discharge: but, as it was sworn by one witness, although he was at home at the time, he directed himself to be denied to them, so that the plaintiff was under the necessity of remaining in prison that night.  On the following morning (Sunday) the same two persons again went to Fitzpatrick's residence and saw him, but he refused to give the plaintiff his discharge until the following day, observing that ``the gaol was the fittest place for him, and that one day longer would not do him any harm."  A witness also swore, that about two years and-a-half ago, there had been a dispute between Fitzpatrick and the plaintiff, and that he (the witness) had no doubt that Fitzpatrick so acted towards the plaintiff from a malicious feeling.

On the part of the defendants it was contended, that this was one of those trumpery actions which was brought merely to put costs into the pocket of the attorney, and which the Court ought to scout; that what was alleged to have been an arrest on the first occasion was really not so, but a friendly negociation [sic] which the defendant, Fitzpatrick, had brought about, notwithstanding the malicious feeling which was imputed to him, and that the arrest was subsequently made when he found that the plaintiff had not fulfilled the engagement into which he had entered, and even then not until the period at which the writ was made returnable had nearly expired; but if the assessors should be of opinion that the first transaction between the parties amounted to an arrest, and a consequent settling of the claim by permitting the plaintiff to go at large, then it was clearly no more than an error on the part of the defendants, and more nominal damages were all the plaintiff was entitled to.

Witnesses were then called on the part of the defendants, to shew that they acted under the authority of a writ issued out of the Court of Requests, as set forth in the plea.  Testimony was also adduced of the uniform civility of the defendant, Fitzpatrick, in executing the duties imposed upon him; to show that he had no authority to discharge the plaintiff when applied to on the Sunday morning; that he made use of no such malicious expressions as those attributed to him, he having in fact said no more than that he had no authority to give a discharge, and that it could not be obtained at all on the Sabbath; and that he really was from home on the Saturday night when the two men called.

Counsel for the plaintiff replied, and took an objection on the justification pleaded, which the Court declined giving any opinion upon, as it might be raised at another stage of the proceedings, should it become necessary.

The learned Judge then summed up the evidence, and told the assessors that the main point for their enquiry was, whether the first transaction said to have taken place between the plaintiff and the defendants, was in fact an arrest.  Because if it were so - if the plaintiff had been really taken in execution and afterwards suffered to go at large in consequence of any agreement between him and Mr. Hall, or between him and the defendants, then the writ became functus officio,[1 ] and the plaintiff could not again be arrested under it.  If they were satisfied that there had been an arrest in the first instance, then they would enquire whether the subsequent capture had been made in error on the part of Fitzpatrick, he supposing, as the plaintiff had not fulfilled his engagement, that he had a right to take him again, or whether it was made under those malicious feelings which had been attributed to him.  Any officer who should abuse the process of a Court to gratify vindictive feelings deserved to be severely punished; and if the assessors were of opinion that Fitzpatrick did so in the present case, they ought to award exemplary damages.  If, however, they believed that he acted bona fide, though in error, they would then consider what nominal damages the plaintiff was entitled to.  With respect to the other defendant, as, if the assessors should be of opinion that there was an arrest in the first instance, the second capture was the gravamen of the action, they would enquire whether there was sufficient evidence to show that he had been concerned in it; because, though one of the defendants might be guilty, the other might not.

The Jury found a verdict for the plaintiff, damages One Farthing.

Counsel for the plaintiff, Dr. Wardell and Mr. Sheehy; for the defendant, Mr. Wentworth and Mr. F. Stephen.



[1 ] Having discharged its duty.

Published by the Division of Law, Macquarie University