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

Tooth v. Hirst [1838] NSWSupC 96

malicious arrest - imprisonment for debt, mesne process

Supreme Court of New South Wales

Dowling C.J., 9 July 1838

Source: Sydney Herald, 11 July, 1838[ 1]

Monday, July 9. - Before the Chief Justice and a Special Jury.

Tooth v. Hirst. - This was an action for a malicious arrest.  The parties are both merchants in Sydney, and the facts of the case were very simple.  A person named Crawford drew a hill for £220 in favor of Messrs. Hyland & Co , who endorsed it, and paid it over to the defendant.  The bill became due on Saturday, January 13th, when it was presented at the bank, an as there were no funds in the Bank to meet the note, the defendant without giving Messrs. Hyland and Co any notice, went to the Supreme Court and swore an affidavit of debt, and took out a warrant of arrest against Mr. Hyland and his partner Mr. Tooth, both of whom were arrested on Monday morning.  An action was commenced and a declaration filed, but Mr. Hirst finding that he must fail, not having properly demanded the money from the drawer gave up the action, upon which Mr. Tooth commenced his action for a malicious arrest.  His Honor told the Jury that the endorsers of a note are entitled to a day's notice of a hill having been dishonored before proceedings are taken against them, and that consequently the writ should not have been taken out until the Monday, and that the arrest being illegal, the law prescribed malice, and it was for the Jury to say what amount of damages they considered the plaintiff was entitled to.  The Jury retired about half an hour and found a verdict for the plaintiff.  Damages £75.

Counsel for the plaintiff, Messrs Foster and Windeyer; for the defendant Mr. a'Beckett..

Hyland v Hirst - This was an action brought to recover compensation for a malicious arrest.  The circumstances were the same as in the above case, except that Mr. Tooth was provided with bail at his own counting-house and executed the bail bond there while Mr. Hyland was taken up the street to the Sheriff's Office by the bailiff -  In defence to this action Mr. Rogers, the defendant's solicitor, was but into the box, who stated that Mr. Hirst came to him on the 13th January, and said he had a promissory note for which he could not get the money, and asked him what he should do, when Mr. R advised him, from circumstances that had come to his knowledge, as it was too late to sue the acceptor that term (as he resided in the country,) to proceed against the endorsers; which was done.  In cross-examination Mr. Rogers admitted that being the day before return day he was exceedingly busy, and did not notice that the note was only due that day, nor was he aware that the endorsers had not received notice of the dishonor, or, of course, he would not have commenced the action.  Verdict for the plaintiff - Damages £80.

Counsel for the plaintiff, Messrs. Foster and Windeyer; for the defendant, Mr. a'Beckett.


Dowling C.J., Burton and Willis JJ, 14 July 1838

Source: Sydney Herald, 16 July, 1838[ 2]


Tooth v. Hirst, and Hyland v. Hirst. - These were two actions for malicious arrests, in which verdicts were found for the plaintiffs.  New trials were ordered, no express malice having been proved; but the notice of motion for new trial being informal, the defendant was ordered to pay all the costs of the former suits.


Burton J., 16-17 October 1838

Source: Sydney Herald, 19 October 1838[ 3]


Tuesday, October 16, 1838. - Before Mr. Justice Burton and a Special Jury.

Tooth v. Hirst. - This was an action to recover compensation for a malicious arrest.

The defendant was in possession of a note of hand made by a person named Crawford, and endorsed by Messrs. Hyland and Tooth.  The note was at three months' date, dated the 10th October, and consequently was due on the 13th January.  This being Saturday, was the last day for taking out process for the first Term, and on that day the defendant took out process against both the endorsers, who were arrested on the following Monday morning.  There was no proof that the note had been dishonored, and the endorsers had received no notice.

The defence was that Mr. Hirst was not actuated by malice, and acted under the advice of his attorney, and to prove that fact Mr. Rogers was put into the box.  He stated that about half-past two o'clock on the 13th January, the defendant called upon him, and said here is a note that I cannot get payment of, what am I to do?  Mr. Rogers being very busy did not look at the note particularly, but seeing that he maker was a country gentleman he said it is too late to proceed against the maker, and from what I know of the endorsers you had better get bail from them, to which Mr. Hirst assented, and the usual affidavit of debt was drawn out.  Subsequently Mr. Rogers discovered he had been premature, withdrew the proceedings, and paid the costs that Messrs. Hyland and Tooth had incurred.  Mr. Rogers said that had he been aware that the note was only due on that day, he should not have advised the arrest of the endorsers.

His Honor said that the question for the Jury was in two parts.  The first point of their consideration was whether there was any reasonable or probably cause which was a mixed question of law and fact, and secondly whether there was any malice, which was a question entirely for the Jury.  If the facts were that there was no proof of the note having been dishonored by the maker, and that no notice had been given to the endorsers, there was no cause of action; and in his opinion there was no cause of action; and in his opinion there was a want of probable cause in the arrest.  Whether the maker of a note was not entitled to the whole day to pay it was a question in which there was some doubts, but it was quite clear that the endorsers were entitled to notice of dishonor, and to the next day to pay the note.  If the Jury were satisfied there was no reasonable or probable cause for the arrest, they must look at the whole of the facts of the case to see if there was any malice in the transaction, and this he left entirely to the Jury as a matter of fact.  With respect to the definition of the word malice, from what had been said by the learned counsel, and the cases that had been quoted on either side, the Jury must imaging that the intention of the lawyers was to mistify [sic] the meaning of the word, but he (the Judge) thought that a reasonable definition of the word was where an ill act proceeded form an ill mind.  If they pleased the Jury could presume malice from the mere want of probable cause, for there might be cases where a party could not suppose he had a right to arrest another.  The Jury retired a quarter of an hour and returned a verdict of the plaintiff, damages £50.

Counsel for the plaintiff, Messrs. Foster and Windeyer; for the defendant, Messrs. a'Beckett and Broadhurst.

Wednesday. - Before Mr. Justice Burton and a Special Jury.

Hyland v. Hirst. - This was an action to recover compensation for a malicious arrest.  The circumstances in this case were precisely the same as in the above, except that Mr. Tooth was provided with bail, and executed the bonds in his own counting-house, while Mr. Hyland had to walk up the street with the bailiffs to the Sheriff's Office.  Verdict for the plaintiff, damages £100.



[ 1]See also Australian, 10 July 1838; Dowling, Proceedings of the Supreme Court, Vol. 152, State Records of New South Wales, 2/3337, pp 19f, 34f.

[ 2]See also Sydney Gazette, 17 July 1838.

[ 3]See also Sydney Gazette, 18 October 1838.

Published by the Division of Law, Macquarie University