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

Plaistowe v Daley [1832] NSWSupC 22

assault - false imprisonment - Maitland - toll bridges and roads - damages, contemptuous - highway, obstruction of

Supreme Court of New South Wales

Dowling J., 19 March 1832

Source: Sydney Gazette, 24 March 1832[1 ]



Plaistowe v. Daly.

This was an action for assault, battery, and false imprisonment, alleged to have been committed by the defendant on the plaintiff, on the 7th of November, 1831. The defendant pleaded the general issue.

Mr. Foster stated the case on behalf of the plaintiff, who is a solicitor of the Supreme Court. The assault complained of in the declaration was committed on the King's highway. It was committed on the bridge at Maitland, where the defendant endeavoured to exact a toll from the plaintiff, who was unwilling to pay money to which he knew the defendant had no legal claim, [sic] The defendant's wife first obstructed the plaintiff, by shutting the gate against him; and the defendant, immediately afterwards, ran out of his house and collared him. The smallest detention illegally, constituted, in law, an imprisonment ; and the seizing a man in this manner on the highway, and detaining him, were sufficient grounds to support this action. He (Mr. F.) regretted that the action was brought - it was done reluctantly - his client would have been satisfied with an apology from the defendant ; but as he had declined to make it, the plaintiff was obliged to proceed with the action. The learned counsel then called the following witnesses :-

G. Dodd examined, said that the saw Mr. Plaistowe and another gentleman passsing [sic] over the bridge, and saw the plaintiff and Mrs. Daly engaged in a scuffle, when the defendant came out and seized the plaintiff by the collar; he saw no blows struck.

In cross-examination, the learned Judge refused to allow evidence that the subject-matter of this action was investigated by the magistrates at Maitland, and that the plaintiff was bound over to keep the peace to the defendant.

This was the plaintiff's case.

Mr, Therry, on behalf of the defendant, said he concurred in one sentiment, and one only, that fell from his learned friend (Mr. Foster). That was a sentiment of regret that this action had been brought; and he was, moreover, inclined to believe, that if the plaintiff had relied less on his own rashness, and more upon the good advice of his counsel, this action never would have been brought. True! the plaintiff was a solicitor of the Supreme Court, and the defendant was an humble peasant who had to maintain a wife and five children by his honest industry. And, forsooth! it was from this humble man that a solicitor of the Supreme Court sought an apology! Poor Daly, who was little conversant with, or little cared about matters of this sort, would have gladly made from fifty apologies, to soothe the wounded sensitiveness of this young attorney. But, on the part of his client, he (Mr. T.) peremptorily and positively denied that such a proposal was made. A proposal, indeed, of a very different nature was made, namely, "on payment of costs" - on complying with a demand for £17, the record should be withdrawn. With this requisition poor Daly could not comply, and hence he had been dragged here from Maitland, at an expense ruinous to him, to defend this paltry action. The redress of a grievance had been the shallow pretext for the conduct of the plaintiff on this occasion. This was a pretext to which, it was well known, persons had sometimes recourse, for the purpose of quacking themselves into notice. If the real redress of a grievance were the object of this plaintiff, he might have "flown at higher game" - he might have contested with the proprietors of the bridge, and not have had recourse to this mode of trial, which could not determine any point in dispute between the proprietors and the public. He has dwelt upon the defendant being a poor man - he claimed no exemption for him from the consequences of his conduct, on that account. If his client had violated the law - if the plaintiff complained of a substantial injury - he had a right to redress. But if, on the other hand, persecution, and not justice, were the object of this action - if the plaintiff provoked the aggression, in order that he might have to complain of it - first scuffling with a female on the ever of her confinement, and thereby provoking her husband, to come forward for her protection - if, in short, this action was brought, in the opinion of the assessors, to transfer from the family of the defendant the fruits of his industry to the pockets of an attorney, it was their bounded duty to scout it from the Court, and cover it with the contempt it merited.

Mr. Richard Allen and Mr. Cains were then examined on behalf of the defendant. The evidence of Mr. Allen did not vary in any material point from that of the first witness (Dodd), and the only evidence given by Cains was, that Daly did not interfere till his wife screamed out ; and that the plaintiff had struck the first blow.

In cross-examination by Mr. Foster, this witness admitted that he had been tried in the Supreme Court, and that, at the trial, Daly was examined and gave him a good character.

The learned Judge summed up and recapitulated the evidence. If the assessors believed the first witness and Mer. Allen, an assault, in law, had been committed. The question of damages was one solely for their consideration.

The assessors found a verdict for the plaintiff, damages one farthing.

Mr. Therry said he hoped His Honor would certify that this was a case in which the plaintiff was not entitled to full costs.

Mr. Foster was sure His Honor would grant no such certificate in this action.

Mr. Therry said he knew of no instance that more fully warranted such a certificate.

Mr. Justice Dowling - There is a battery laid in the declaration.

Mr. Therry - Yes ! but there is no plea of justification, and as there is not, the Court may certify.

Mr. Justice Dowling - The matter is in the discretion of the Court. I shall decide nothing now, but reserve the point for consideration.



[1 ] See also Sydney Herald, 26 March 1832; Australian, 30 March 1832.

Published by the Division of Law, Macquarie University