[Hall, Edward Scott – Monitor newspaper, sale of – trover – arbitration]

Hall v. O’Brien

Supreme Court of New South Wales

Stephen J., 31 October 1840

Source: Australian, 3 November 1840

            Hall v. O’Brien. - This was an action of trover brought by Edward Smith Hall late proprietor of the Monitor newspaper, against Francis O’Brien, the present proprietor of that journal, to recover possession of certain articles of household and office furniture, a pair of spectacles, and files of the Monitor newspaper which the declaration averred the defendant had illegally detained and converted to his own use. The defendant pleaded first, that he was not guilty; secondly, that the plaintiff was not lawfully possessed of the property at the time; and thirdly, that on the 2nd of April last all matters in dispute between the plaintiff and defendant in the present action was referred to arbitration.

            His Honor asked if there was any possibility of settling this case out of court, as he understood the parties were nearly related, a father and son in law, and it was not seemly that it should get further publicity through the medium of a court of justice, for whichever way the verdict was given it would only widen the breach between the parties. He did hope a better feeling would take place, for it was at best, an unbecoming exhibition, and would be worse for the private characters of both parties. As he perceived the defendant himself in court for the first time, he did hope that some arrangement could be effected to prevent the case being gone into.

Mr. Windeyer (for the plaintiff) said that this case was nothing, a mere flea bite to the other one, between the same parties, which was on the list. He had no objection to a settlement, on the contrary Mr. Hall was extremely desirous of a settlement, but the other side would not consent, and what could he do? He then proceeded to state the case as follows:- The articles which they sought to recover were certain bound volumes of the Monitor newspaper, Mr. Hall’s spectacles, arm-chair, couch, and table. Mr. Hall had sold the Monitor newspaper, together with the office furniture to Mr. O’Brien, but he never dreamt that Mr. O’Brien would take away his spectacles, arm-chair, couch or pillows as part of the office furniture. The value of these articles was very trifling, but the parties had been actuated by hostile feelings towards each other to bring this action, and O’Brien thought to gratify this feeling by tricking Mr. Hall out of his property, which he had been driven at the sword’s to the Court to recover. The value of the goods was trifling the gratification of feeling on both sides brought them before the Court, and the jury ought never have been called to try the case. It was unfortunate, but the property was Mr. Hall’s, who had given way much to an obstinate young man.

Witnesses were then called to prove the possession of the articles by the plaintiff, and subsequently by the defendant, and that applications had been made for them by the plaintiff, and refused by the defendant.

Mr. Foster contended for the defence that no conversion of the property had been proved.

Mr. Windeyer replied.

His Honor animadverted strongly on the conduct of the parties in not settling the matters in dispute by arbitration out of court, which the plaintiff, through his counsel had expressed his willingness to do, and ordered a nonsuit to be entered there being not sufficient legal proof of a conversion of the property by the defendant.

Counsel for the plaintiff Mr. Windeyer; for the defendant, Messrs. Foster, Broadhurst and Darval.