[malicious prosecution]

Moore v. Coleman

Supreme Court of New South Wales

Stephen J., 10 June 1840

Source: Australian, 11 June 1840[1]

            Before Mr. Justice Stephen, and Messrs. H.H. Browne, and W. Dawes, Assessors.

            Moore v. Coleman. - This was an action for a malicious prosecution. The particulars of the case were briefly these. The plaintiff and defendant are small settlers residing near Campbell Town. In the month of March last, the defendant leased four acres of a farm of thirty-five acres, situate at Bunbury Curran, from Mr. William Davis, of the Church Hill, Sydney, who had not been on the premises for the last nine years. Coleman ploughed it, and sowed what in it, and when the crop came to maturity in December last, a neighbour named Humphries, who the defendant admitted in his affidavit before the Magistrates, he had heard had a prior claim to occupation of the land in question, came with various assistants, and took away the crop. Moore was not seen to be present at the taking away of the wheat, but his cart was used to take it away, and it was sworn to have been stacked upon his premises. Coleman then went to Captain Allman, police magistrate at Campbell Town, and requested to have a summons or warrant against Humphries and his assistants for felony, but Captain Allman understanding from the complainant that the case involved a dispute of right of property told him that the magistrates had no power to settle it, and recommended him to consult his solicitor as to a civil remedy. Coleman then placed his case in the hands of Mr. Wild, the attorney, who, it is to be presumed from the instructions of his client, drew a most extraordinary affidavit, charging Humphries with felony, and Moore and others with aiding, abetting, and assisting him in the commission of it, without even venturing to swear Moore was present upon the occasion. This affidavit was submitted to Captain Innes, without telling him that a previous application had been made to Captain Allman upon the same subject, and after he had cautioned the plaintiff as to what he was about, as it appeared to him that his remedy was of a civil nature, was induced to grant his warrant against the parties, from a representation that they had been guilty of an open and barefaced robbery. The parties were thereupon brought down to Sydney in custody, and after a week’s protracted examination caused by the non attendance of witnesses, during which time the parties were at large on bail the case was dismissed by Messrs. W. H. Kerr, and H. H. Browne, the investigating magistrates. His Honor told the Assessors that he was of opinion there was not, in point of law, any reasonable or probable cause for the defendant having acted in the manner he had done; and he observed that malice might be inferred from the charge itself, whether it originated in gross ignorance, or negligence, as well as from proof of direct malice. The assessors found for the plaintiff, with damages £50.

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