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

McGuigan v Hanslow [1835] NSWSupC 79

malicious prosecution - married women's legal disabilities - information, error in

Supreme Court of New South Wales

Forbes C.J., 8 October 1835

Source: Sydney Herald,  8 October 1835[ 1]

 

Wednesday. - Before the Chief Justice, Thomas Walker, and John Busby, Esquires.  Assessors.

McGuigan v. Hanslow and wife. - This was an action brought by the plaintiff, a wheelwright of Sydney, against the defendant, a blacksmith, to recover a compensation in damages for a malicious prosecution.  It appeared in evidence that in January last, the defendant's wife prefered a charge against the plaintiff before Messrs. Windeyer and Stewart, for having taken a pair of blacksmith's bellows from her husband's premises, upon which a warrant had been issued, and the defendant had been apprehended thereon and confined twenty-four hours in the watch-house; upon the case being investigated before the bench, the plaintiff was acquitted of the charge; the plaintiff therefore brought his action.  On the part of the defendant Mr. Wentworth contended that the plaintiff must be non-suited, inasmuch as the declaration charged the defendant with feloniously stealing a pair of bellows, whereas, from the information exhibited, it appeared that he had only been charged with taking the bellows from defendant's premises; the Magistrates might put what construction they liked upon the charge, but the defendant was not to be made liable for their mistakes.  The Chief Justice was of opinion that Mr. Wentworth's objection as to the variance between the charge alleged and that proved, was fatal, the plaintiff must therefore be nonsuited.

Counsel for the plaintiff, Mr. S. Stephens, Mr. Wentworth for the defendant.

 

Notes

[1 ] See also Australian, 13 October 1835.

Published by the Division of Law, Macquarie University