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

Palmer v. Sloman [1841] NSWSupC 83

malicious prosecution - false imprisonment

Supreme Court of New South Wales

19 May 1841

Source: Australian, 22 May 1841[1]

            WEDNESDAY. - The Supreme Court Civil List exhibited the unusual and extraordinary number of one hundred and twenty-six cases for the assessors to try.

            The first case of any interest, was Palmer v. Sloman. This was an action for false imprisonment. The principal evidence in this case was Mr. Price, an Inspector of Police, who stated, that about two months ago, he happened to be passing the defendant's shop, and was called in to take the plaintiff into custody, on a charge of felony. Mr. Price warned the defendant to be careful what he was about, seeing the plaintiff was a respectable man; but despite of admonition, Sloman insisted the plaintiff should be received in custody. The charge was distinctly specified. It was for robbing him of boots and shoes. The plaintiff was accordingly taken to the station-house, and there left in custody upon a charge of felony. Next morning the case came on for adjudication before the police, and the defendant was released by the magistrates from custody. Another witness was put to the box, to prove that Mr. G. R. Nichols defended this person on that occasion; he was present at the plaintiff's handing over his fee to that gentleman, to conduct the defence. The Court interrogated the Inspector, as to the character of the plaintiff; he bore evidence in this person's favour. For the hours of false imprisonment, the plaintiff sought compensation at the hands of the assessors. Judge Burton summed up the evidence, charging the assessors, that the liberty of the subject was not to be trifled with. Here was clearly a case of false imprisonment; but it was a matter with the assessors, and one of some moment, should they think this case of malicious arrest, what damages they would give. The situation of the parties of this case, plaintiff and defendant, must be looked at. If their verdict went against the defendant, they would be called upon to punish; but if it did not follow, that in awarding punishment, they should entail ruin. The assessors gave a verdict for the plaintiff, £50 and costs. At a subsequent hour of the day, the defendant applied to the court by affidavit, stating his straightened circumstances, and alleging that he had been in attendance the whole of the day, and had just learned that a verdict was given against him. He implored the court, in mercy, to spare him, this verdict would ruin him. The learned Judge, said, that this cause having occupied the court forty minutes in the hearing, it was strange how the defendant could be in attendance on the court, and yet not know of his case being on. However, if the defendant's representations were correct, that by the verdict just returned, he would be ruined in his circumstances, although this was no proper time for the judges to say any thing in the matter, the court would entertain any application on Saturday next, for relief, and the defendant would be at liberty to appear.

Stephen J., 5 August 1841

Source: Sydney Herald, 6 August 1841



            This was an action on the case for malicious prosecution and false imprisonment. The plaintiff and defendant are shoemakers. The pleas were the general issue, and a plea of justification on the ground of the defendant's having had a veheme[n]t suspicion that the plaintiff had committed a robbery.

            Mr. Broadhurst opened the pleadings.

            Mr. Wi[n]deyer stated the case, and said that it had been once already tried before Assessors, in the absence of the defendant, on which occasion a verdict had been given for the plaintiff, with £50 damages; but that as the Court had thought fit to allow the defendant to have the case tried by the jury, he (Mr. Windeyer) had no doubt, owing to the additional evidence which he should then produce, that the jury would give much larger damages upon this trial than upon the last.

            From the evidence for the plaintiff, it appeared that on the evening of the 29th of January last, the plaintiff had been for some time walking up and down before the defendant's shop, when the defendant came out from his shop, and gave the plaintiff into custody, on charge of robbery, upon which charge the plaintiff was taken to the watch-house, confined all night, and brought up the next day before Mr. Windeyer, the Police Magistrate, by whom he was discharged.

            The defendant gave evidence before Mr. Windeyer, and the plaintiff was defended by Mr. Nichols.

            The constable by whom the arrest was made, proved, that at the time of giving the plaintiff into custody, the defendant charged him with robbery, and that he particularly cautioned the defendant, who still persisted in the charge, and said that he had lost some boots or shoes from his shop.

            From the defendant's depositions at the Police Office, it appeared, that he then swore that "the plaintiff was annoying his wife, that he did not give him in charge for a robbery, but for wanting to rob the house, and that he missed nothing, and did not look for any thing."

            One of the plaintiff's witnesses, who was called to prove that the plaintiff had paid five guineas to Mr. Nichols for his defence at the Police office - upon his cross-examination said that the was a member of the trades' union of Sydney, and that he had heard that the plaintiff was paid by the trades for annoying the defendant, and had been two days loitering about the defendant's shop.

            The same witness, upon his re-examination, said that the defendant refused employing him until he had joined the union, and that the defendant himself wanted to become a member of the union, which would not admit him.

            Mr. Foster addressed the jury for the defendant.

            The witnesses for the defendant proved that some shoes were lost, some time previously, by the defendant, and that for two days before the plaintiff was given into custody he was loitering about the defendant's shop, and once came up to the door; that he told a person, who had been in the habit of supplying the defendant with work, not to work for him, because there was a strike against the defendant; that the plaintiff and another man were paid by the committee of the union £4 16s. a week for watching the defendant's shop, and that his duty was to prevent customers from frequenting the shop.

            Upon their cross-examination, these witnesses said that there had been a "Masters' Union in Sydney;" that the defendant is a person of hasty temper, and that he knew of the strike against him.

            Mr. Windeyer addressed the jury for the plaintiff.

            Mr. Justice Stephen charged them at some length, and after having laid down the law of the case, and recapitulated the evidence, his Honor, said that if they believed that the plaintiff had established the necessary points of his case, even while he had acted scandalously, unlawfully, reprehensibly, and with gross impropriety, yet that conduct was not ground for justifying his imprisonment by the defendant, for that cause, although it might undoutedly go to reduce the damages which he should recover supposing that they believed him entitled to any.

            The jury retired for about half an hour, and upon their return to court, delivered a verdict for the plaintiff, damages £25.

            Counsel for the plaintiff, Mr. Windeyer and Mr. Broadhurst; for the defendant Mr. Foster and Mr. Hustler. Attornies, for the plaintiff, Nichols; for the defendant, Goddard.

            In the course of the case Mr. Justice Stephen said that if the evidence were to be believed, the defendant and those of the union who acted with him had become liable to a criminal prosecution.


[1]              See also Australian, 19 June 1841 (adjourned).


Published by the Division of Law, Macquarie University