Burton J., 25 June 1838

This was an action brought by the plaintiff, a publican at Invermein, to recover the sum of £141 8s. 6d., for work and labour done to his house, from his landlord.  The defence was, that the plaintiff had done work which was not required, and a set off was put in.  Verdict for plaintiff, damages £40.

Dowling C.J., Burton and Willis JJ, 12 July 1838

Source: Sydney Herald, 13 July 1838

Mr. Foster moved for a rule, calling upon the plaintiff to show cause why he should not pay the costs of the suit, having arrested the defendant for £150, and only recovered £40.  Granted.

Dowling C.J., Burton and Willis JJ, 29 September 1838

In the case Briggs v. Humphreys, Mr Windeyer appeared to shew cause against a Rule Nisi granted on the first day of term calling on the Plaintiff to shew cause why the Defendant should not be allowed costs in the case, on the ground of the plaintiff not having recovered the amount for which defendant was held to bail.  The rule was applied for under the provisions of the 43rd Geo. III. and the defendant's affidavit set forth that he was arrested and held to bail for £100 and upwards; that the cause was refered [sic] to arbitration, but subsequently the reference was set aside, and the cause was set down and tried on the 5th June, 1837, when a verdict was given for the plaintiff for £40; and that the plaintiff had acted in a malicious and vexatious manner.  He (Mr Windeyer) contended that the affidavit was not sufficient to support the application for the rule, as the defendant had not taken upon himself to swear that the sum for which he had been arrested was not due, although a verdict for £40, only, had been given.  This however was not he amount claimed, and the plaintiff had only been unable to produce witnesses to prove several items in his account which had not been allowed.  Mr Windeyer put in affidavits in contravention of the rule, which stated that several sums were actually due although the plaintiff had failed to prove them, which consisted of the following items -- £5 for iron furnished, £15 19s for a well which had been dug -- £12 for timber supplied; and the plaintiff also claimed £19 which was an overcharge for a pipe of wine supplied to plaintiff by the defendant.

Mr Foster appeared in support of the rule being made absolute, and contended that the Defendant's affidavit was sufficient to sustain the application.  The affidavit set forth that the Plaintiff had furnished his bill for £69, and on the defendant objecting to the amount, plaintiff told him that he would furnish him with a bill to three times the amount, which was a fair presumption of malice and vexatious proceeding.

The Court was of opinion that the rule should be made absolute.  The application had been made on a very salutary act, passed to prevent vexatious arrests, and the question here was whether the plaintiff knew at the time that he had no right to arrest the defendant for the sum for which he had been held to bail.  The Court was of opinion that this had been a vexatious arrest, as the whole amount claimed by the plaintiff, on his own shewing, was only £91, whereas he had arrested the defendant for £100 and upwards, and the arrest being made without a reasonable or probable cause, the rule must be made absolute.

Notes