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

Leech v. Chivers [1840] NSWSupC 58

malicious prosecution, Invermain, new trial

Supreme Court of New South Wales

Stephen J., 1 October 1840

Source: Sydney Herald, 3 October 1840

LEECH v. CHIVERS. - This was an action brought to recover compensation for a trespass and false imprisonment, also for a charge of felony having been preferred without reasonable cause.  The defendant had filed three special pleas, viz:- That a felony had been committed.  That it had been committed by the plaintiff, and that there was reasonable ground of suspicion against the plaintiff.

            The circumstances of the case appeared to be as follows:- The plaintiff is a free woman, who had resided in the district of Invermein where the defendant holds a publican's license.  That on the 18th of January, the defendant's father-in-law, named Ferguson, had in the early part of the day been with the defendant making a settlement about some money transactions, and left the defendant, with about fifteen shillings in silver together with one order for ten shillings, another for two pounds eight shillings, and a number of receipts in his possession.  About four o'clock on the same day, Ferguson, after leaving the defendant, went to the house of a blacksmith, named Gray, with whom the plaintiff was cohabiting, and gave some money to the children; he also sent for some brandy and wine with the silver, and subsequently gave the ten shilling order to pay for a bottle of brandy, which was purchased at the defendant's.  About six o'clock, Ferguson was so drunk that he lay down to sleep, and was insensible until after sun-down, when he awoke.  About five minutes after he had arisen, his son-in-law, having ascertained that he was in Gray's, went there, and on enquiry, was informed, that his father-in-law had just come in from the bush, and after a short stay, he took him home with him.  When the two arrived at the defendant's, it was discovered that not only all the silver and the ten shilling order were gone, but also the order for the two pounds eight shillings.  On enquiry on the following day, it turned out that the plaintiff had gone to Mr. Dangar's store, between nine and ten on the preceeding evening, and purchased a number of articles, and paid for them by giving an order for two pounds eight shillings, which subsequently turned out to be the order belonging to the defendant's father-in-law; the latter having no recollection of having given the plaintiff the said order, the defendant got a constable and gave the plaintiff in charge, and she was kept in custody until the 14th February, when the Police Magistrate finding that Ferguson would not swear that the plaintiff had robbed him, dismissed the case.

            The defendant, in order to prove his plea of justification, produced a witness named Mary Dillon, who, in the month of January was residing at Gray's with the plaintiff, and who was present on the afternoon of the 18th of January; this witness swore that after Ferguson had gone to sleep, she was told that she was wanted in Gray's workshop, which she went to, and that on her return to the house the plaintiff said to her, that Ferguson had not the money he had represented himself as having, and that the only things he had, were a number of receipts from Mr. Dangar; she also swore that the plaintiff had admitted indirectly to her having taken the order, as she had, after being in custody, asked her to swear that Ferguson had given her the two pound eight order to get changed at Dangar's; she also swore that after Ferguson left, the plaintiff went and got the same order changed, and brought the articles she had purchased to Gray's, and gave them to the witness.

            In order to contradict the defendant's witness, (Mary Dillon) it was shown by cross-examination, that she was a drunken immoral character, that she was unmarried, but had two children, whose father she at first swore was not Joe Page, but afterwards swore that he was the father of her progeny, and that she was in the habit of getting money from him to support the children.  A letter was also produced by the plaintiff, purporting to have been written by Mary Dillon to Page, telling him to humble himself to the defendant, in order to prevent the said Mary Dillon from being called on as a witness in the present action; and also threatening the said Page, unless he would send the said Mary Dillon money to support herself and the children, "which every one said were a credit to Page or any man, and the very picture of their father."  This letter Mary Dillon solemnly declared to be a forgery, at the same time she admitted that she had caused a letter to be written to Page for money, and admitted that he had sent her two pounds, but it had not been given to her.  She also swore that she could neither read nor write; but that a letter had been written for her, in the house of a women named Dally, by a person belonging to the Custom-house.  Enquiry was made, when it turned out that it was a man named Wylie, a messenger in the Customs, who had written the letter she had sent to Page.  Wylie, on being shown the letter produced by the plaintiff, at once proved that it was not written by him, at the same time he deposed to the truth of Mary Dillon's statement, as to the content of the letter he had written.

            The plaintiff's counsel contended that the letter he had produced was a bona fide letter from Mary Dillon to Joe Page; while the defendant's counsel argued that the letter produced had been manufactured by the plaintiff, in order to prevent the witness Dillon from giving evidence against the plaintiff.

            In putting the case to the assessors, His Honor left it to them to decide whether the witness Dillon was to be credited or not, at the same time informing them, that in his opinion, as an assessor, she had given true evidence respecting her letter to Page.

            The assessors found a verdict for tha[sic] plaintiff on the first count, and for the defendant on the other issues.

            After the verdict had been recorded, the plaintiff was called on, and ordered to put in bail to appear and answer a charge respecting what come had before the Court.

Dowling C.J., Stephen and Willis JJ., 10 October 1840

Source: Sydney Herald, 12 October 1840

LEECH v. CHIVERS.  In this case Mr. Windeyer moved for a new trial, on the ground of misdirection by the learned Judge (Stephen) before whom the cause was tried, also because the verdict was contrary to evidence, and because he was provided with affidavits to prove that Mary Dillon, a material witness for the defendant, had not given true evidence when examined on the trial.  From these affidavits it was shown that the attorney for the plaintiff (Mr. Rodd) had acted with extreme caution before bringing the action, which was to recover damages for false imprisonment, and which the Court considered as being highly honorable to him, and a hope was expressed that the other attorneys would in similar cases exercise the same sound caution Mr. Rodd had done.  A new trial was ordered on the facts stated in the affidavits, and the costs of the last trial were ordered to abide the result of the new trial.

Published by the Division of Law, Macquarie University