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

Thomas v. Byrne [1839] NSWSupC 17

malicious prosecution - damages, assessment of - Court of Requests

Supreme Court of New South Wales

Dowling C.J., 23 March 1839

Source: Australian, 28 March 1839[1]

Before His Honour the Chief Justice and a special Jury.

Thomas v. Byrne. -- This was an action to recover damages for a malicious prosecution.

Mr Windeyer opened the pleadings. The declaration averred that the defendant maliciously and without any reasonable or probable cause whatever, had instituted and carried on a prosecution against the plaintiff for perjury, and that the plaintiff had been duly sued before the Supreme Court and acquitted. The defendant pleaded the general issue not guilty.

Mr Foster stated the plaintiff's case the facts of which are in substance that the plaintiff, although poor, was a respectable man in his station, carrying on business as a shoemaker in Parramatta-street. The defendant was a publican in George-street, and keeper of the Sydney Pound, who had been in the Colony many years and was possessed of considerable property. Early in March last the plaintiff had his horse impounded, and on going to the defendant to release it was told that the fees &c, amounted to 6s. The plaintiff considering this an exorbitant charge his horse having only been impounded the same day, said to defendant, ``no wonder you're getting blind when you charge me 6s for my horse being in the pound only a couple of hours." The defendant became angry at this and said the plaintiff should not have the horse without 9s 6d more, as it was advertised. After much angry discussion, the plaintiff not being able without paying the addition 9s 6d to get his horse, or to get defendant to return the 6s, went away, and suspecting that the charge of an advertisement to be an attempt at extortion, proceeded to the Gazette Office, and found that no advertisement had been sent there by the defendant, and shortly afterwards defendant's son came down on horseback with the advertisement, but in consequence of the plaintiff being at the office, it was not inserted. Plaintiff then returned to defendant and demanded his horse, which at length the defendant gave him, but said "never mind, take the horse, but I'll catch you next time". The plaintiff then went away with his horse; about a week afterwards, on Saturday, 17th March, the plaintiff again lost his horse, and went to the pound to see if it was there, he also employed several persons to look at different periods of the day, but no horse was seen in the pound either on the Saturday, Sunday or Monday, nor was any notice on the pound. On the Tuesday morning the plaintiff again went to the pound, and there for the first time saw his horse; he then went to the defendant and asked what the cost of the impounding amounted to, who stated it was altogether £1 1s 6d, this the plaintiff objected to pay as the horse had only been in the pound that morning. Defendant refusing to let him have the horse; plaintiff went to Mr Clarke, of the Pack Horse, who had sent the horse to the pound on the Sunday morning, that the owner might find him, but laid no damage on it. It appeared that the defendant instead of putting the horse in the pound, had kept him concealed in his yard until the Tuesday morning, in order to revenge himself on the plaintiff, by advertising the horse and running up the poundage fees. The defendant having refused to deduce any thing from the charge of £1 1s 6d, although, that included 5s damages which Mr Clarke stated he had not laid on the plaintiff, by the advice of an attorney, went to defendant with two witnesses and paid the £1 1s 6d and got his horse; he also made the defendant give him a bill of his charges, which were -- 9s 6d advertisement; serving notice at Gazette Office 2s 6d; subsistence for three days 3s; notice said to be put up on the pound 6d; poundage fees for taking him to pound 6d; to inspecting the poundage book 6 d; damage laid on by impounder for trespass 5s; making in the whole £1 1s 6d. The plaintiff took his bill to Mr O'Reilly, the attorney, whose clerk saw it and advised the plaintiff to summons defendant to the Police Office under the Impounding Act, for extortion, and plaintiff accordingly took the bill to the deputy chief constable, who lost it, and therefore advised plaintiff to sue defendant in the Court of Requests, to recover back the overcharge. Plaintiff accordingly summoned defendant to recover 15s, the amount he considered he had been overcharged. On the case coming on plaintiff and one of his witnesses swore that he had paid £1 1s 6d and on the other side the defendant swore that he only received 15s which was no more than he was entitled to; he also swore that he had posted a notice on the pound, and defendant's son sore that the plaintiff had torn it down. This the plaintiff denied, upon which, the Commissioner said there must be perjury on one side or the other, and therefore dismissed the case. The plaintiff then resolved on prosecuting the defendant, but in the mean time the defendant expecting he would do so, went to the Police Officer, and as the best means of stifling the plaintiff's proceedings, charged him with willful and corrupt perjury. Upon this charge plaintiff was committed and tried in the Supreme Court and acquired; he had been put to large expenses in defending himself, and claimed remuneration for those expenses and compensation for the injury he had sustained.

The following witnesses were examined in support of the plaintiff's case:--

Francis Fisher, Esq., Crown Solicitor, produced the depositions taken at the Police office upon which the plaintiff was committed for trial.

Charles Windeyer, Esq., Second Police Magistrate, proved the granting a summons for the plaintiff, the appearance of the parties before him, and the committal for trial.

Thomas Phillips, a Constable, deposed to serving the summons on the plaintiff and his attendance thereon.

John Gurner, Esq., Chief Clerk of the Supreme Court, produced the record of the trial and acquittal of the plaintiff.

Mr Robert Johnson, Clerk to Mr G. R. Nichols, Attorney for the plaintiff, proved the expences [sic] incurred by the plaintiff in defending himself which, in consequence of the trial being once postponed and the great number of witnesses amounted to £53.

William Cotton, a painter and glazier, proved being present when plaintiff went to defendant on the occasion of the first impounding, that plaintiff paid six shillings, but on his remonstrating against the charge, defendant insisted on having nine shillings and sixpence more.

Patrick Moore proved the plaintiff getting his horse away on the first occasion without paying any thing in addition to the six shillings, but could not remember whether defendant had said he would catch plaintiff next time.

Mr William Clark, late landlord of the ``Pack-horse" Campbell-street, proved sending the horse to defendant on the second occasion, but stated he laid no damage on it.

William White proved that defendant claimed £1 1s 6d on the second occasion, and that, on plaintiff saying there was no notice on the pound, and asking why defendant charged for that, he said it made no difference as the horse was advertised.

John Buckley proved plaintiff paying defendant £1 1s 6d, and that defendant gave a receipt for that sum.

James Collins deposed to the same fact as the last witness.

Buckley and a man named Daniel Innes proved they went repeatedly to the pound, and the horse was not there till the Tuesday.

Mr George Yarnton proved that the plaintiff brought the receipt signed by the defendant to him, and that he advised plaintiff to proceed at the Police-office.

Mr Jones, deputy chief constable, deposed that plaintiff brought the documents to him, and that he handed them to the next witness.

Mr John Price, Inspector of Police, stated he read the papers, but had lost or destroyed them.

Mr Yarnton was then recalled and proved that the bill was in defendant's hand-writing and amounted to £1 1s 6d.

Mr Johnson was re-called and detailed the evidence given by defendant on the trial of the plaintiff, but which it appeared that the defendant sore that the horse was in the pound all the Monday -- that he had filed a notice on the pound on the day he got the horse, and that it remained on every day till the horse was release; that he only charged plaintiff fifteen shillings; which he said was one shilling less than he was entitled to, and which he forbore to charge out of kindness to the plaintiff.

The defendant's pound book was also produced by which it appeared that the charge of five shillings for damage was written after the rest of the entry had been made in the book.

This finished the plaintiff's case.

Messrs àBeckett and Broadhurst for the defendant, made several technical objections to the plaintiff's proo[f]s and submitted that the plaintiff must be nonsuited, but His Honor overruled the objections.

Mr àBeckett then addressed the jury for the defendant, and then contended that any proof had been given of any malicious feeling on the part of the defendant, that his acting all along had been fair and boná fide, and that therefore the jury must find a verdict for the defendant, but that if they should find a verdict for the plaintiff, which he did not consider at all probable, he was confident that there was but one little coin which could suggest itself to them in the shape of damages.

Roger Therry, Esq., Commissioner of the Court of Requests, was then called, who stated that the case was tried before him in the Court of Requests, but that in consequence of the direct contradictions in the evidence, he considered there must have been perjury on one side or the other, and therefore dismissed the case.

George Patchett deposed, he saw a little brown horse in the pound a day or two after St.Patrick's day last year; and that it corresponded with the description of the plaintiff's horse.

Richard Welm stated that he saw a notice describing the horse in the pound the day after St. Patrick's day last year; that he remembered the day because he went to look out for a job of work, and was positive it was the day after St Patrick's day.

Cross-examined -- Was not in the habit of seeking for a job on a Sunday; did not remember that the day after St Patrick's day last year was a Sunday.

This closed the defendant's case.

Mr Foster replied, contending that the plaintiff's case was completely proved, and was one for exemplary damages.

His Honor summed up, and stated to the jury, that unless they were satisfied that the defendant had acted both maliciously; and without any probable or reasonable cause, they must find a verdict in his favor; but if on the other hand, they thought he had acted maliciously, and with the knowledge that the charge was totally unfounded, they should find a verdict for the plaintiff, with such damages, as would compensate him for the anxiety, trouble, and expense he had been put to by the prosecution.

The Jury retired about ten minutes, and on their return found a verdict for the plaintiff. Damages £200.

His Honor certified for two Counsel and a Special Jury. Counsel for the plaintiff, Messrs Foster and Windeyer -- Attorney, Mr Nichols; for defendant Messrs. àBeckett and Broadhurst -- Attorney, Mr Minnithorpe.



[1]  See also Sydney Herald, 25 March 1839; Sydney Gazette, 26 March 1839.

Published by the Division of Law, Macquarie University