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

Hunt v. Duguid [1841] NSWSupC 105

false arrest - imprisonment for debt

Supreme Court of New South Wales

Burton J., 4 November 1841

Source: Sydney Herald, 4 November 1841[1]

            This was an action brought to recover damages from the defendant, for arresting the plaintiff in an action, after it had been settled by the plaintiff, by payment of the damages and costs to defendant's Attornies.

            Mr. WINDEYER and Mr. BROADHURST appeared for the plaintiff; and Mr. FOSTER for the defendant.

            Mr. Harvey called and examined by Mr. BROADHURST. Knew of the plaintiff Hunt having been arrested. Went to see him whilst in Parramatta Gaol, which was a dirty hole, and very uncomfortable. Staid nearly an hour in the Gaol with the plaintiff. Plaintiff borrowed the money, sixty odd pounds, of witness, to enable him, plaintiff to get out. It was common talk in the neighbourhood, that Mr. Hunt had been in gaol.

            Cross-examined by Mr. FOSTER : Hunt the plaintiff had been sold off by the Sheriff in Parramatta; did not know that the drunken habits of the plaintiff, had been matter of common talk in Parramatta; never interfered to pr[event] the plaintiff from [settling the] action; neither the plaintiff nor Lackey the gaoler had ever told witness that a letter had been received from Carr, Rogers, and Owen, enquiring whether the money in question had ever been paid. The plaintiff's was sold off publicly, but did notthink that circumstance would injure the plaintiff's credit, so much as being cast into gaol.

            George Thomas Hunt the son of the plaintiff, proved that his father had been taken to the gaol in the gaolers's gig; plaintiff was merely great in the boot and shoe line, and had not much business as a saddler. This was the case of the plaintiff.

            Mr. FOSTER, for the defendant, said, that had this action not been a very peculiar one, he should not have thought of calling witnesses at all. But the circumstances were really so unusual, that he should not adhere to his original intention. The defendant was managing director of the Commercial Bank, and had had an action against the plaintiff, which he (Mr. Foster) admitted, the present plaintiff had settled (as alleged by the plaintiff,) by payment of the debt and costs, to a clerk in the firm of Carr, Rogers, and Owen, which circumstance, purely from a mistake, had not reached the knowledge of the parties. Being thus ignorant of the settlement, they caused a letter to be written to the plaintiff Hunt, on the subject of Duguid's action against him. To the letter no answer had been returned, and in due course, the action proceeded, and the attorneys, Carr, Rogers, and Owen, still supposing that the action was unsettled, eventually issued the writ of execution. The plaintiff Hunt, had thus suffered the arrest of which he now complained; and he, Mr. Foster, would show that the defendant had made every possible effort, and in the most liberal manner, to compromise the affair, which overtures the plaintiff has always rejected.

            Mr. Lackey, the gaoler, being called by Mr. FOSTER, said he recollected Hunt, the plaintiff, coming to the prison. He walked in by himself - the brother of the witness walking behind him; - the plaintiff was not drunk - only in liquor; he had never been in witness' custody before. He was imprisoned for about two hours.

            The brother of the gaoler, the Sheriff's bailiff, was next examined by Mr.FOSTER. The plaintiff was told by witness, that Messrs. Carr, Rogers, and Owen, had instructed him to pay back to plaintiff the money he had paid to procure his liberation, together with all costs to which he had been put. The plaintiff refused the offer. Witness never had a writ against plaintiff's person before.

            On cross-examination by Mr. WINDEYER, the witness said he did not think the witness's credit would be much improved by the circumstance of which the plaintiff complained. Did not think any man's character likely to be improved by being in his (witness') company. (a laugh.) The correspondence which disclosed the offer of Messrs Carr, Rogers, and Owen, to settle the matter with the plaintiff, having been used by Mr. Foster, Mr. WINDEYER now called for the whole of the letters being read, which being produced by Mr. O'Reilly, the attorney for the plaintiff, it appeared from those passages which had not been used, that plaintiff had persisted in proceeding with the action, as his circumstances had been much injured by the arrest.

            Mr. FOSTER having spoke on this new portion of the evidence,

            Mr. WINDEYER replied upon the whole case for the plaintiff; he said that it was difficult for those unacquainted with his friend Mr. Foster, to lay down any rule by which you might be sure of catching him. When, as his friend had done, a man dwells so forcibly on matters merely incidental, the Assessors might depend it was because nothing was to be done by facing the matters essential to the case. The learned Counsel for the defendant had spoken of the liberality of the plaintiffs, in offering to settle the action on the terms that had been proposed. To be sure the plaintiff had little cause for complaint; he had enjoyed a very comfortable ride in Mr. Lackey's gig to Parramatta gaol; had been kept there two hours; and long after the action had been commenced the defendant offered to pay merely the plaintiff's expenses; then they talked of giving ten or twelve pounds - subsequently fifteen, - and when these offers are refused, evidently only twenty pounds, are paid into Court. Here was liberality! Was this sufficient compensation for such an injury as the plaintiff had received? Torn from his home, unjustly imprisoned, causelessly disgraced; were the terms offered, sufficient compensation, for such an injury. The terms were an insult to the plaintiff, and only aggravated the original injury. They were merely dictated by the same spirit, which had been so liberally displayed by the other side in the course of the cause. Questions had been put and uniformly answered adversely to the question's wishes, "was not the plaintiff a drunkard"? "Was he not a low fellow?" and the compensation which had been offered, had been suggested by the same slanderous spirit, and the defendants had only offered them thinking they were quite, sufficient to satisfy "a low drunken fellow," but which character, after all, the defendants had failed to prove the plaintiff to be. There had been an attempt to show that the plaintiff was not now in such credit as he had formerly enjoyed; the selling off by the sheriff had been dwelt upon to establish this asserted fact; but witnesses had said that this circumstance had only been permitted by the plaintiff in order to clear away his rubbish and that he had plenty of property left. But even admitting that the plaintiff was a man of damaged credit, and now struggling with difficulties, was that any reason why the defendant should finally extinguish him? The plaintiff had suffered a great injury, and should therefore receive great, although (from the absence of malice) not vindictive damages.

            Mr. Justice BURTON then summed up, and the Assessors returned a verdict for the plaintiff of £50.

            Attorney for the plaintiff, O'Reilly : for the defendant, Carr, Rogers, and Own.


[1]              See also Sydney Gazette, 4 November 1841.


Published by the Division of Law, Macquarie University