[false imprisonment]

Mooney v. Walters

Supreme Court of Van Diemen's Land

Pedder C.J., 15 October 1835

Source: Tasmanian, 23 October 1835[1]

Before His Honor the Chief Justice, and a Special Jury of Twelve

This was an action for false imprisonment brought by Elizabeth Mooney against T. J. Walters, for having caused her to be put into the watch-house on the 16th July, 1834, on a charge of felony.

The Solicitor General appeared on behalf of the plaintiff, and Mr. Gellibrand for the defendant. The first plea set forth in the defence to this action, was the general issue, besides, which, there were three special pleas of justification.

It appeared, that the defendant’s house was robbed on or about the 14th July, and that on the 15th, a sum of money was paid into the Derwent Bank, by Mr. Edwin Weavell, the keeper of the Canteen, at the Military Barracks, amongst which was a crown piece. Defendant, who is cashier or teller of the Bank, recognised this particular coin as one which had been stolen from him. On defendant asking Weavell how he became possessed of it, he replied, he had received it from the wife of a soldier, whose name he did not know. On the evening of the 15th, Mr. Walters, accompanied by Constable Peel, went to Weavell’s house, whence he accompanied them to the hut where Mrs. Mooney, the plaintiff in this action, resided. The plaintiff stated, she had got the crown piece from Corporal Molloy, who had lent her some money. Peel, Weavell, and defendant went together to Molloy's hut; he, however, denied all knowledge of the money, as also, did his daughter. They then returned to Mooney's hut, when Peel said to defendant, "Do you charge this woman with felony?" Defendant answered, according to Peel's testimony, "Yes, that is my money; I have been robbed of it." She was then taken to the watch-house. In something less than an hour, however, she was liberated by Mr. Mason, the Assistant Police Magistrate, on the application of Major Deare, who gave a pledge that she should appear next morning at the Police-office. A little time after this, Mr. Walters and Constable Peel came to Mr. Mason’s, in consequence of some further information they had received, wishing Mrs. Mooney to be set free. This, however, had been already done. Next morning, both parties applied at the Police-office, when the Magistrate asked Mr. Walters if he had any charge to prefer against Mrs. Mooney. Mr. Walters replied in the negative, and Mrs. Mooney was discharged.

Mr. Gellibrand, for the defence, called Edwin Weavell, who, in his examination, stated, that when Peel asked the defendant Walters if he charged the woman with felony; the word "yes!" was not made use of at all; the reply was, "this is my money."

His Honor summed up the evidence at considerable length, and explained to the Jury that the question for their consideration was, whether the defendant had authorised Peel by his answer to the question "Do you charge her with felony?" to arrest Mrs. Mooney.

Mr. Gellibrand, for the defendant, contended, that even if the word "Yes" had been used, in addition to "this is my money. I have been robbed of it," the defendant did not thereby authorise the constable to arrest Mrs. Mooney but that the constable did it on his own responsibility.

The Solicitor General, for the plaintiff, argued, that the taking the plaintiff into custody was by the authority of the defendant, and, therefore, his act, and, consequently, he was accountable for so doing.

The Jury retired for about an hour, and then returned a verdict for the plaintiff - damages - One Farthing.

His Honor enquired whether the special pleas of justification were to be entered for the plaintiff or defendant.

After much more deliberation, they found for the defendant, on the third and fourth special plea.

His Honor, upon being applied to certify as to the costs, said, he certainly should not.

Notes

[1] See also Courier, 16 October 1835.