Tucker v. Lyons - This was an action brought to recover compensation, for having been taken in execution without reasonable cause.  There was a second count which set out the case more generally, defendant had pleaded not guilty, damages were laid at £500.  The alleged circumstances upon which the action was founded were simply these.  Plaintiff was a shopkeeper at Bong Bong, defendant a merchant in Pitt-street.  About twelve months ago, plaintiff was indebted to the latter in the sum of £10, who issued a summons against him, and obtained judgment on the 9th October, 1835.  Plaintiff went to defendant's counting house, and paid the debt with costs in full for which defendant gave a receipt.  About a month afterwards defendant issued out another execution for the same debt, and took plaintiff in arrest, who was obliged to sell a valuable horse to extricate himself from the difficulty.  Owing to the said arrest, the credit of plaintiff was so materially injured as almost to cause his ruin.  It appeared, however, upon the cross-examination of plaintiff's witnesses, that the arrest after the payment arose in this way.  A summons was served upon plaintiff at Bong Bong, through the medium of a party residing there acting as agent for defendant some few days after, but prior to the case being heard.  Plaintiff came down to Sydney, and paid the debt with ten shillings for the summons, alledging that was the whole expense, whereas £1 6s. 8d. for mileage had been incurred.  When plaintiff returned to Bong Bong, he gave no notice to the agent that he had settled the account, defendant likewise neglected to do the same, the consequence was the case proceeded regularly through the Court, a judgment was obtained, and execution taken out.  When plaintiff's case having been gone through, Mr. Foster for defendant contended at some length, that the other side had failed to make out any case, and that the evil had been brought upon themselves.  For before an action of such a nature could be sustained, it was necessary to prove express malice which they had not done.  Messrs. Stephen, Kerr, and Windeyer, per contra contended, that express as well as implied malice, had been made out.  The Chief Justice was of opinion, that there must be a nonsuit, the gist of the case being founded upon malice, there was no expressed malice in this case, and therefore he must withdraw that point from the consideration of the Jury.  There was no malice in point of law.  He thought there was not.  He held and considered that it was the duty of the plaintiff himself to have gone and completely settled the business by paying his money into the Court of Requests, and, therefore, whatever misfortune had come to him, he had brought it upon himself.  He would, therefore, direct that a non-suit be entered.