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

Pearson v. Baker (1840) NSW Sel Cas (Dowling) 483; [1840] NSWSupC 68

assault, New Zealand, status of, imprisonment for debt, Supreme Court, jurisdiction over New Zealand

Supreme Court of New South Wales

Willis J., 15 September 1840

Source: Sydney Herald, 16 September 1840

            PEARSON BAKER. - In this case John Pearson, master of the Integrity is the plaintiff, and Major Baker the defendant.  The action is brought to recover compensation for assault and battery, together with false imprisonment alledged to have been committed in April last, at Port Nicholson in New Zealand, the damages are laid at one thousand pounds.

            It appeared from the plaintiff's affidavit, that he had been apprehended by order of the defendant, who asserted that he was a Magistrate, and that after a constable named Smith, who was armed with a pistol and bayonet, had apprehended him, he took him before the defendant, who refused to give him copies of the warrant, and other documents connected with his apprehension, when the plaintiff refused to plead to the charges made against him (what these were did not appear) the plaintiff merely denying the authority of Major Baker, as a Magistrate, on which the latter desired him to be detained in custody; when the constable who had him in charge enquired where he was to put him, as there was no place as a lock-up, or place of safety to keep him in.  Major Baker told him to retain him until he consulted Col. Wakefield, and some time after ordered the plaintiff to be placed in an open boat, and conveyed on board the ship Tory, which was lying there, and to be kept there until further orders: he was immediately forced into a boat and during five hours heavy rain was tossed about in it, until the boat could reach the vessel where he was compelled to remain some days until he again got ashore, (by what means he did so did not appear,) and when on shore he was shown a copy of the New Zealand Gazette in which there was an advertisement representing him as having escaped from prison; he made enquiry of the defendant who had caused its insertion, but was not able to ascertain who had ordered it.  These were nearly the whole of the facts of the case which came before the Court; it appeared [LINE OMITTED] Sydney, when the present action for damages was commenced on or about the 18th day of August, when Major Baker was arrested by an order from Judge Stephen, on an affidavit that he was about to leave the colony, and held to special bail, as it appeared that he was about to sail on the ensuing day for New Zealand.

            MR. MANNING, as Counsel for the defendant now applied to the Court to have the special bail-bond returned, and common bail admitted (if bail was necessary) in its stead, on the following grounds: That the defendant had been apprehended by an extra judicial mode of procedure, as he was not sworn in the affidavit to have been going beyond the limits of the Colony, nor even to a distant part of it; and, even admitting that he was going to New Zealand, that was a part of the Colony.  Besides, he had been held to bail before even the action had been brought, as on searching the Record Book of the Court, it did not appear that the action had been brought before he was arrested, and held to special bail - nor was there anything to prove that even a summons had been issued before the arrest took place.  He also contended at great length, that by the act for the abolition of arrest on mesne process, his client could not have been held to more than common bail, if even to that, as was shown from the spirit and meaning of the Act; besides, he was not charged with more than a common assault, and for which all that was required was common bail.  He also submitted, that the affidavit on which Judge Stephen had granted the order for the arrest, was too loosely drawn, as such was the vagueness in it, that it would be impossible to frame an indictment for perjury, however strongly they might be able to negative any one of the averments which it contained.  He also submitted to the Court, that as Port Nicholson was in New Zealand, a territory of the Colony, it was not legal now to hold his client to special bail.

            MR. FOSTER resisted the application on the ground that the defendant, when arrested, was going beyond the seas, at least, to a distant territory of the Colony, which was even stronger than a distant part of the territory.  He also held that the spirit and meaning of the Act for abolishing arrest on mesne process was to prevent parties who had acted in the same manner as the present defendant, from escaping from the effects of their conduct; he also refrained from admitting that Major Baker was a magistrate, or acting as a magistrate, when he arrested the plaintiff, as he was of opinion that when the case came on for trial he should be able to prove that such was not the case.  He also asserted that it was not to make amends for the assault only, but for false imprisonment and battery also.  He thought that unless the special bail was allowed to remain in the present case, that it would be opening a door for every one to escape, who could evade the service of a summons, or could manage to get on ship board before a capias or warrant could reach him.

            During the course of the argument, Mr. Gurner stated that the record book in his office could be no guide to determine the time when an action was commenced, as the entry frequently was not made in it until the capias, summons, or order for arrest was issued.

            The COURT also remarked, that were it to grant the present application, it would put it in the power of fraudulent debtors fleecing from their creditors to make their escape from the Colony with a facility which never had been contemplated by the framers of the Act for the abolition of arrest on mesne process; and at an early stage of the proceedings the Chief Justice observed that to grant the return of the bad bond would be to stultify the whole of the same act.

            At the conclusion of the argument Judge Willis stated that his mind was made up, as in his opinion Judge Stephen had acted just as he should have done, had a similar application been made to him in similar circumstances.

            Application refused.

Dowling C.J., Willis and Stephen JJ, in Banco, 16 September 1840

Source: Sydney Herald, 21 September 1840

Pearson v. Baker. - In this case, which had occupied the Court during a considerable portion of the preceding day, as reported in our publication of last Wednesday, Mr. Manning moved the Court, on behalf of the defendant, for time to plead, on an affidavit by his attorney, stating that he, the deponent, had been informed been informed[sic] by his client previous to his departure for New Zealand, after having been held to special bail, that he had been before then prosecuted by the present plaintiff before the Police Bench at New Zealand for the same acts of assault and battery which formed the ground of the present action, and also that he had been then and there convicted, and fined in the sum of five pounds, with costs, and that the deponent expected to receive a copy of these proceedings, and also of the record of the said conviction, by the first arrival from New Zealand; and furthermore, that without these documents he did not think that the case of his client could be fairly tried.

            The Court in delivering its decision, observed that this was an application for time to plead.  It was not for a postponement of the trial, nor did it urge the suddeness of the notice of trial as having placed the defendant in circumstances which were calculated to weaken his defence, neither did it ask for delay, in order to enable the defendant to obtain and bring forward material witnesses for the defence.  If Mr. Turner believed his client, he was then just as ready as ever to rebut the charges, as he was at liberty to plead not guilty, or to justify.  It was for the ends of justice most material, that no case should be unnecessarily delayed, and perhaps if the case had been brought forward in another form, as it might yet be, the Court might postpone the trial, but as it was, there was no other course for the Court to pursue than to dismiss the application with costs.

Source: Sydney Herald, 28 September 1840

PEARSON v. BAKER. - The court delivered its judgement on this case, which was an application to have the special bail bond set aside, and common bail substituted.  In this case, the application had been made on five grounds.  1st.  Because, at the time of the arrest, there was no case before the court; but the court held that the exhibition of the affidavit before the arrest, was evidence to the judge who granted the order, that the plaintiff had legal grounds for bringing an action.  2nd,  That this being an action to recover damages for merely a common assault, was not one which subjected the defendant to be held to special bail; but, as there is a charge of imprisonment, as well as of assault, the court held, that it was a proper case for holding the defendant to special bail.  3rd, That the affidavit ought to have proceeded on facts rather than on arguments, to show that the plaintiff had a good ground of action.  This in the opinion of the Court had been fully refuted by the plaintiff's affidavit.  4th, That it had not been shown that the defendant was leaving the Colony, or even absconding to a remote part of it; but merely to New Zealand, a dependancy of the Colony.  But the Court held that New Zealand was so far out of New South Wales that the present cause could not be tried there.  5th, That although there was no definite amount of damages sworn to in the declaration, yet the Judge had held the defendant to a large amount of special bail, the Court held that on this point his Honor Judge Stephen had only exercised a sound discretion.  The application was discharged with costs.

            In the same cause a commission was subsequently applied for to examine witnesses in England, and to postpone the trial, which was granted; the trial being postponed for twelve months.

Source:  Dowling, Select Cases, Vol. 6, State Records of New South Wales, 2/3464,


                                                         Jno. Pearson v R. Barker

By an order of Stephen J. made on the 10th August last the Deft was arrested in Sydney and held to special Bail in the sum of 250£ for assaulting & falsely imprisoning the Plf at Port Nicholson in New Zealand.  On a former day a motion was made to discharge this order on various grounds.  First, that as no action had been commenced agreeably to the practice of this Court there was nothing whereon to found the order to hold to Bail inasmuch as there was no Plaintiff within the meaning of the Mesne Process act 3 Vict. No.15.s.2.  Second.  That this was not a case in which the Deft could be now held to Bail.  Third.  That there was no sufficient distinct [p.151] course of action set forth on which perjury could be assigned, & Fourth that the transaction stated in the affidavit having taken place at New Zealand the case was not within the operation of the mesne process act, & Fourth.  That there was no debt or damage stated in the affidavit to authorize the amount of bail required.

            The first objection is based upon the assumption that we are bound to give a technical meaning to the worst Plaintiff, and that in as much as there was no action entered in Court, there could be no cause depending yo satisfy the word "Plaintiff" before the order to hold to Bail was made.

            By the 34. rule of this Court, it is ordered "that every action at law which shall be commenced shall be entered in a short manner, setting forth the nature of the action, & the form of the process which may be required, in a book to be kept in the office for such purpose, & called "The Clerk's [p.152] Book", & the 35th Rule orders "That the ordinary process of the court to compel the appearance of the Deft in any such action shall be by summons in the form set forth in the appendix to the rules."  Does wither of those rules apply to the present case?-

            By the first Section of the local ordinance 3 Vict. No.15 the provisions of which were adopted from the statute 1 & 2 Vict c.110 it is enacted that after the 3d October 1839 no person shall be arrested upon mesne process in any civil action in any court within the Colony or the dependencies thereof except in the cases & in the manner hereinafter provided.  it then proceeds to enact in s.2.-  "That if a Plaintiff in any action in which the deft is now liable to arrest, whether upon the order of a Judge or without such order shall by the affidavit of himself, or some other person or persons shew to the satisfaction of a Judge of this Supreme Court that such Plf has a cause of action against the Deft or Defts to the amount of 20£ or upwards, [p.153] or has sustained damage to that amount, and that the Deft or that any one in more of the Defts is about to remove or is making preparations to remove out of the jurisdiction of the Supreme Court of New South Wales or otherwise to abscond to remote parts within the said Colony (by which is intended parts beyond the limits which now are, or hereafter may be prescribed for location within the same) and that such action will be defeated unless he or she or they be forthwith apprehended, it shall be lawful for any such judge by a special order to direct that such Deft or Defts so about to remove or abscond, shall be held to bail for such sum as such judge shall think fit, not exceeding the amount of the Debt or damages, & thereafter it shall be lawful for such Pltf within the time which shall be expressed in such order, but not afterwards to sue on one or more writs or writs of Capias against any such Deft or Defts so directed to be held to bail, which writ of Capias, shall be in the form to be prescribed by the Judges of the Supreme Court."

[p.154]            Now if we were to give a technical meaning to the word Plaintiff in this section, & limit it only to cases where an action is depending in Court, we should defeat the whole object of the act, which was to secure the person of a party liable to an action and prevent his evading the jurisdiction of the Court until he had put in bail.  It is true that the ordinary process of this Court to compel appearance, where a party resides within the Jurisdiction is by summons, but in cases here the ordinary process is not sufficient for that purpose the law has provided the process of arrest by Capias.  Perhaps the word "Plf" in this act is not strictly correct, but we must give it that meaning which shall not utterly defeat the obvious intention of the legislature.  The affidavit to hold to Bail is in fact the commencement of the action, to obtain bailable language a party does not become a plaintiff until there is a cause in court, but the act clearly means, a party who has a cause of action against another [p.155] in a state of circumstance which will authorize a Judge to make an order to hold to bail.  To give effect to the act we must interpret Plaintiff to mean party complaining.  The affidavit to hold to bail, being the first step, is no more than exhibiting an action in writing which is in legal language the Plaint, & the party making his plaint is called the plaintiff.  Before the abolition of the arrest on mesne process the affidavit to hold to Bail, would be contrary to the rule of Practice in the K.B. if it were entitled in a cause.  By the rule of K.B. Trim T. 37.G3. it is ordered "That affidavits of any cause of action beforeprocess sued out to hold defts to bail, be not entitled in any cause, nor read if filed".  It was always considered that the affidavit to hold to bail was the commencement of the suit.  The affidavit in this case is the commencement of the suit, & we must regard the deponent making it, as the Plaintiff within the intent and meaning of the act, or in other words the party complaining.  If we were to hold that the 35 Rule of Court was obligatory on a party before he could sue out [p.156] bailable process, the act in cases like the present might be utterly defeated, for before the entry in the clerk's book could be made, the Deft might escape out of the jurisdiction of the Court.  It appears to us therefore that an affidavit to hold to bail in the cases contemplated by the act, & acted upon may be made before any entry in the clerk's Book.-

            Secondly, it was said, that this is not a case in which the Deft is now liable to be arrested, inasmuch as the act only applies to causes ex contractu & not er delicto.  To hold that, would be to give a narrow construction to the act, which would in many instances amount to a denial of Justice; but then it is said that at all events, it is only in cases of very grievous & violent assaults that a Judge would order a Deft to be held to bail, & that this is not a case of that description without venturing to pronounce any opinion as to the character of the transaction is question, I think there is such a prima facie case of injury sworn to, as to justify the order made by the learned Judge to hold the deft to [p.157] Bail.  Without reference to the act at all, no deft could be held to Bail for a trespass, unless he was about to quit the jurisdiction of the Court, or unless the trespass was of a violent & grievous nature.  But whatever is the true character of this transaction it is sworn that the Deft was about to depart out of the jurisdiction of the Court, which alone would be sufficient to justify the order to hold him to bail without reference to the character of the assault, which could only influence the amount of bail required.  As to the third objection, I agree that the affidavit to hold to bail must shew a distinct & not n argumentative cause of action, & in such terms that perjury may be assigned upon it if false.  Here there are distinct facts sworn to shewing that the alleged assault & false imprisonment took place under the directions or with the privity of the Deft, which brings the case within the rule.  Although it is sworn that the Deft assumed to act as a Magistrate, we are not [p.158] bound to infer that he had therefore lawful authority for what is alleged to have been done.  This will be matter of defence at the trial.  Then as to the fourth objection, the act is confined to the cases of persons about to remove out of the jurisdiction of the Supreme Court, or otherwise abscond to remote parts within the said Colony (by which is intended parts beyond the limits which now are or hereafter may be prescribed for location within the same.  New Zealand where this transaction took place, was certainly not in contemplation at the time this act was passed.  It is not in any way mentioned.)  We know periodically that it has since become  dependency of New South Wales, but it is still out of the jurisdiction of this court for the purposes of the present cause of action.  This deft was found in Sydney within the jurisdiction of this court & it being sworn that he was about to depart therefrom to Port Nicholson, it seems to [p.159] me that he comes within the operation of the act.  Lastly, although there is no liquidated damages sworn to, still it is in the discretion of the Judge to say under all the circumstances what would be a reasonable amount of bail to require.  The Deponent having sworn to a cause of action, it is for the Judge to determine in the exercise of a sound discretion in what sum the Deft should find bail to meet the Justice of the case.  If the deponent were left to assess the damages himself by swearing to a given amount it would exclude the discretion of the Judge and might subject the Deft to the grievous hardship if finding bail to an extent which he might be unable to procure. -  The humane policy o the mesne process act is to prevent  man from being deprived of his liberty upon the naked oath of a party complaining without the intervention of a Judge, who is, under all the circumstances sworn to to [sic] determine whether [p.160] the Deft ought to be held to bail.  in none of the forms given in the Books of practice, for the affidavit to hold Bail in Trespass & other torts, is the amount of damage required to be stated.  All that is required is to set forth the material facts, shewing a cause of action, & the Judge is to determine the amount of bail.

            Rule discharged.

Willis J., 27 October 1840

Source: Sydney Herald, 28 October 1840[1]

PEARSON v. BAKER. - The Attorney-General informed the Court that this case was settled between the parties.  The defendant having consented to pay £100 by way of damages and costs, as between attorney and client.  He also acknowledged on behalf of the defendant that the assault and imprisonment for which the action was brought took place entirely from "mistake", and the defendant regretted extremely the inconvenience suffered by Captain Pearson, as there was nothing whatever to impeach his conduct or character; and he was glad to inform the Court that the parties had come to this understanding, which he hoped would answer all the objects of Captain Pearson.  The case was then struck off the paper.


[1]              See also Australian, 29 October 1840.

Published by the Division of Law, Macquarie University