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

Davis v. O'Ferrall [1838] NSWSupC 99

malicious arrest, imprisonment for debt

Supreme Court of New South Wales

Burton J., 19 October 1838

Source: Sydney Herald, 22 October 1838[ 1]

Davis v. O'Ferrell. - This was an action for a malicious arrest, damages laid at £1000.  The plaintiff is Mr. Davis, the miller, of Sussex-street, and the defendant was formerly a resident of Van Diemen's Land.

At the time the estate and effects of Mr. Beilby were taken possession of by his creditors, Mr. John Campbell, Mr. G. S. Tucker, and Mr. Davies, the plaintiff, were appointed Trustees.  Among other property was a large quantity of flour, which was claimed by Mr. O'Ferral, who stated that he had paid £1,030 to Beilby for it, and he sent the trustees a bill of sale, by which it appeared he had paid Beilby that amount. The trustees believing the whole transaction to be fraudulent, refused to give up the flour, subsequently Mr. O'Ferral explained that although he had bought the flour for £1030, he had only actually paid £498, and if the trustees would give him that sum he would give up all claim to the flour, and this the trustees, as they had no way of resisting the claim agreed to.  The whole of the property had been handed to Mr. F. W. Smart for sale by auction, and the trustees wrote an order to Mr. Smart to pay O'Ferral the sum of £493 out of the proceeds of the sale of the property.  This Smart agreed to, and undertook to pay the money within twenty-one days ``in good bills or otherwise."  At the expiration of the twenty-one days Mr. O'Ferral called on Mr. Smart, who tendered him some bills with his own endorsement, but these Mr. O'Ferral refused to take, unless a discount of twenty or twenty-five per cent. were allowed, which Mr. Smart refused to accede to, upon which Mr. O'Ferral said he would arrest the trustees.  Mr. Smart told him he could not do that, having taken a guarantee, but Mr. O'Ferral said he would be - if he did not, unless the money was paid by ten o'clock the next morning.  Mr. O'Ferral then took out process against the trustees, swearing that they were indebted to him in the sum of £493 ``for money had and received on his behalf," and the Sheriff was instructed to arrest Messrs. Tucker and Davies, but not Mr. Campbell.  Mr. Tucker was arrested, and Mr. Rogers, the solicitor, having heard of it, told the Under Sheriff not to arrest Davies, and he would bring him up in the morning and put in bail.  The following morning Davies went to the Sheriff's Office, and was detained by the Under Sheriff for about a quarter of an hour, while the bail bond was being signed.  Smart aftwards paid the money to O'Ferral, who never prosecuted his action against the trustees.  A number of witnesses were called, who proved that they considered Mr. Smart's bill good for any amount.

A non-suit was moved for by Messrs. Stephen and Moore, on the grounds that there had been no actual arrest, that there was no proof that the action against the trustees had been discontinued, and that there was a probable cause for the arrest.  Without calling on the other side to reply, His Honor said he was of a different opinion, but would reserve the points.

The defence was that Mr. O'Ferral had probable cause to arrest the trustees, as he did not like the bills that were offered to him by Mr. Smart, and thereupon the debt became due from the trustees.  That if the Jury, under the Judge's direction, were of opinion there was no probable cause, it was quite clear there was no malice, as Mr. O'Ferral acted under the advice of Mr. a'Beckett, a gentleman of the first legal eminence in the Colony; and that so far from the non-arrest of Mr. Campbell showing a bad feeling towards the others, it merely showed that Mr. O'Ferral, not wishing unnecssarily to inconvenience any one, did not arrest Mr. Campbell, who is well known to be a solvent individual; but the others, who are not quite so well known, he arrested for his own security.  Mr. a'Beckett having been put into the box, stated that he had a conference with Mr. O'Ferral and his Solicitor, Mr. Lindo, at the end of which he was shown the guarantee from Smart, and told that Smart had refused to fulfil it; upon which he said if Messrs. Davis, Campbell, and Tucker had sold the flour and received the money, he considered an action for money had and received would lie against them.

His Honor said that he was of opinion that if a party, knowing there is a writ out against him, surrenders himself at the Sheriff's Office, to avoid being arrested in the street.  The first question then for the Jury to decide was, whether there was any reasonable or probable cause for the arrest; and he was of opinion there was not, for even if Smart had refused to perform the undertaking, no action could have been maintained against the trustees until they had actually received the money for the flour into their own hands.  With respect to the performance of the guarantee, it would be a question for the Jury to determine whether the bills tendered by Smart were good or not.  The next question for the consideration of the Jury was, whether the defendant was actuated by malice - not malice in law, but malice in fact.  Upon this point there were a variety of opinions in the books, but he though the best mode was to leave it to the Jury to determine what was malice, but he considered that a reasonable definition of it was, any act proceeding from an evil mind.  With respect to the debt claimed by O'Ferral, it had been admitted by the trustees; but after the imputations that were cast upon Mr. O'Ferral, during the proceedings against Mr. Beillby for conspiracy, he must say that he was disappointed to find that Mr. O'Ferral had not vindicated himself by showing to the Court that the debt was actually due.  The Jury retired about half an hour, and returned a verdict for the plaintiff - damages £300.

Counsel for the plaintiff Messrs. Foster and Windeyer; for the defendant, Messrs. Stephen and Moore.


Dowling C.J., Burton and Willis JJ, 29 October 1838

Source: Sydney Gazette, 30 October 1838


Davies v. O'Ferrall - Mr. Justice Burton said that he had given the defendant permission to move for a nonsuit, if the Court should be of opinion that there was not sufficient proof of arrest, as set forth in the declaration - and also if the Court should be of opinion that there was cause of arrest against the plaintiff, thereby doing away with the malice alleged in the plaintiff's declaration.  His Honor read the evidence in the case.

Mr. Stephen argued at great length in support of his objections, which had already been stated to their Honors by Mr. Justice Burton.  He submitted to their Honors that defendant in this case was entitled to a nonsuit on the ground that there existed sufficient cause for arrest, and to a new trial because the proof of malice had been so very slight.  He adverted also to the immense amount of damages given, which he conceived to be totally unwarranted by the circumstances.

Mr. Justice Burton said that, hitherto, juries had been excessively moderate in their returns of damages.  In this case he did not think the amount was in any way intemperate.

Mr. Moore followed Mr. Stephen on the same side.

Mr. Chief Justice Dowling said that, notwithstanding the arguments of Mr. Stephen and Mr. Moore, he thought the verdict ought not to be set aside, there being, in the opinion of the Court, sufficient evidence that a legal arrest had taken place, without any sufficient cause for proceeding against the plaintiff.  His Honor thought there was excessive malice; the expression ``I'll be d--d if I do not arrest them" bore on its face strong proof of malicious intention, and the fact of his only having arrested two out of three parties.  The jury had decided on these facts, and His Honor could see no reason why he should set aside their decision.

Judgment confirmed.



[ 1] See also Australian, 25 October 1838; Sydney Gazette, 25 October 1838.  See also Tucker v. O'Farrell, Australian, 25 October 1838; Sydney Herald, 24 October 1838; Sydney Gazette, 25 and 30 October 1838.

Published by the Division of Law, Macquarie University