Herniman v Smith

JurisdictionUK Non-devolved
JudgeLord Atkin,Lord Russell of Killowen
Judgment Date22 December 1937
Judgment citation (vLex)[1937] UKHL J1222-1
Date22 December 1937
CourtHouse of Lords
Herniman (Pauper)

[1937] UKHL J1222-1

Lord Atkin

Lord Russell of Killowen

Lord Macmillan

Lord Maugham

Lord Roche

House of Lords

Lord Atkin

My Lords,


This is an appeal from an order of the Court of Appeal setting aside a verdict and judgment for the Plaintiff in an action for malicious prosecution tried before Talbot J. and a common jury and entering judgment for the Defendant. The Judge had left to the jury the following questions:—

1. Has it been proved that the Defendant commenced and proceeded with the prosecution without any honest belief that the Plaintiff was guilty of fraud?

2. Has it been proved that the Defendant failed or neglected to take reasonable care to inform himself of the true facts before commencing or proceeding with the prosecution?

3. Has it been proved that the Defendant, in commencing or proceeding with the prosecution, was actuated by other motives than a desire to bring to justice one whom he honestly believed to be guilty?


The jury answered all three questions in the affirmative. The Judge thereupon held that there was an absence of reasonable and probable cause, and as the third answer amounted to a finding of malice left the question of damages to the jury. They assessed the damages at £6,500. In the statement of claim, however, only £5,000 was claimed. The Judge refused leave to amend and entered judgment for the Plaintiff for £5,000.


The Defendant appealed and the Plaintiff gave notice of cross-appeal against the order refusing leave to amend. On the latter point, at an early stage your Lordships intimated to counsel for the Appellant that they were not disposed to interfere in a matter which in the circumstances depended so much on the discretion of the learned Judge: and the question was not further pressed.


On the main question it is material to state that the Plaintiff, together with one Rickard, was charged with conspiracy to defraud Harold C. Smith, the Defendant: and with obtaining money from him by false pretences on four different occasions. They were charged before the Justices at Edmonton on the information of Mr. Smith: committed for trial to the Central Criminal Court: tried there before the present Recorder, and were convicted and sentenced each to 12 months imprisonment. On appeal to the Court of Criminal Appeal the Court set aside the conviction, being of opinion in the case of Herniman that there was not a sufficient case to go to a jury, and that in all the circumstances it would be safer that the conviction against Rickard should be quashed as well. In these circumstances it was not disputed and in my opinion could not be disputed that the proceedings had terminated in favour of the present Plaintiff so as to satisfy that essential element in an action for malicious prosecution.


The Court of Appeal held that there was no evidence which would justify the learned Judge in leaving the first two questions to the jury: and being of opinion that there was no absence of reasonable and probable cause allowed the Defendant's appeal. It will be necessary therefore to examine the facts ascertained by the Defendant at the time when he laid the information and subsequently proceeded with the prosecution. I need only state that the inquiry is confined to the effect or the reasonable effect of the evidence from time to time on Mr. Smith's mind: and that no question any longer remains as to the Plaintiff's innocence which must be conclusively presumed.


The Plaintiff Herniman carried on business in London as a timber merchant and at the date of the criminal proceedings was about 62. He had served in the Royal Horse Artillery since 1894, at the date of the outbreak of the War had been Battery Sergeant-Major: was granted a commission in December, 1914, and retired in November, 1919, with the rank of Captain. He went into the timber trade and after one or two unsuccessful ventures started his present business in 1930 and opened a small office in Chandos Street, Buckingham Gate, in 1933. His business began to prosper and from about the last mentioned date one of his customers was the Defendant Smith, who was a builder engaged at material times in developing building estates at Edmonton, Loughton, Eastcote, and other places. There is no evidence that Smith knew anything about Herniman's career other than that he was Captain Herniman. The course of business between the parties is not made entirely clear by the evidence, but the general outlines are obvious enough. Herniman's office and staff were limited to one room and a clerk, Copland. Herniman himself went about and got orders. He would either get notice of available parcels offered to him by the large merchants whom it will be convenient to call the importers, and pass on the details in an offer to his customers: or he would get an order from a customer and then buy from the importer to complete it; sometimes, of course, he would have to go to more than one importer to get the requisite sizes: and it would happen that whether he bought and then sold: or sold and then bought it would be convenient at times to buy parcels which did not correspond to any then existing order. The stock so acquired was never large: and Herniman in fact kept no stock book. When there was any spare stock of which he took delivery he was able to store it in the yard of Rickard, his co-Defendant in the criminal proceedings. He had no storage accommodation of his own. Rickard was a carrier: he owned about 10 lorries and had his yard at Bermondsey. He appears to have carried for Herniman all the timber that was sold to Smith, and his terms were £1 per standard of timber. Most of the timber was sold per standard, which is a cubic measure, at about £14 per standard: some of the timber matchboarding was sold by the square, which is a superficial measure. Twenty squares for purposes of calculating freight equalled one standard. There is some uncertainty as to the practice of Herniman and Smith, respectively, concerning the recording of contracts. Smith at one time had an order book, but apparently none of the relevant orders were to be found recorded in it. They were given, so it was said, verbally by King, Smith's manager, to Herniman. Herniman kept no order book: he wrote down the orders as received in a note book which was not kept after it had served its purpose. One is left with the conclusion which is accurate enough generally that the goods placed on a lorry would correspond with a specific order: generally in complete fulfilment of the order, or at any rate in part. When Herniman desired to fulfil an order he would receive a delivery order from his importer entitling him to receive from dock or warehouse the agreed quantity of timber. He would hand this to his carrier, Rickard, with instructions to get delivery of the goods and carry them to Smith. He would also provide Rickard with blank delivery notes with printed headings bearing Herniman's name addressed to Smith:—Please receive from (Herniman). The delivery notes bore two printed notices:—

"Note.—This Note must in no case be signed for more pieces than are actually received, or no claim can be allowed in case of deficiency."


"Rejections not entertained unless made at time of delivery." It was the duty of the lorry driver to fill up the details from the document he received at the Dock, the Dock Pass, specifying the timber loaded. The delivery note was prepared in duplicate: it would be signed by the checker in the employ of Smith on the building site: and one copy would be left with Smith's representative: the other retained by Rickard's lorry driver. The Dock Pass was prepared by the Dock Authorities: it would correspond with the Delivery Order: and served as receipt to the Dock Authorities, and a pass-out for the goods from the Dock premises. When delivery was completed the Dock Pass and Herniman's delivery note signed by Smith's checker would be handed by the driver to Rickard, who pinned them together and sent them to Herniman's office. Herniman's clerk would prepare an invoice from the receipted delivery note: and in about 10 days' time Herniman would draw on Smith a three months' bill for the invoice amount. Business was done between the parties on these lines in the years 1933, 1934 and 1935 to a considerable extent: the turnover in that period was to an amount of about £26,000.


The first intimation of any dishonesty received by Smith was contained in a letter addressed to him by one Edger, dated 14th November, which stated that he had been in the employ of the Stirling Haulage Co. [Rickard], carters for Herniman, "and during my 16 months' service of timber carting to Edmonton, Loughton, Enfield and Eastcote your delivery tickets have been faked to the extent of 34 standards." It went on to state that this was only one of four lorries doing the same: and that if Smith cared to see him he could furnish dates and quantities. Smith had an interview with Edger, who told him that shortly after starting to work for Rickard he was told by Rickard to put extra timber over and above that delivered to the customer on the bill. This would be done by increasing the foot run, calling 14 ft. lengths 16 ft. and so on in proportion: also by the number of pieces in the various lengths. He produced a list of total increases showing on certain dates extra amounts varying from 1/2 to 2 1/4...

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215 cases
3 books & journal articles
  • Evidence 1
    • Nigeria
    • DSC Publications Online Sasegbon's Laws of Nigeria. Volume 10. Part I Evidence 1
    • June 30, 2016
    ...arrestor or prosecutor did not in fact believe what ex hypothesis he would have believed had he been reasonable (see Herniman v. Smith (1938) A.C. 305, 316, per Lord Atkin).” - Per Salami, J.C.A. in C.O.P. Ondo State v . Obolo Suit No. CA/ B/175/85; (1989) 5 N.W.L.R. (Pt. 120) 130 at 139-14......
  • Preliminary sections
    • Nigeria
    • DSC Publications Online Sasegbon's Laws of Nigeria. Volume 10. Part I Preliminary sections
    • June 30, 2016
    ...W.A.C.A. 61……….....………….479 Hemyo Atam & Anor. v. The State, S.C. 632/66 decided on the 11 th January, 1967..………..420 Herniman v. Smith (1938) A.C. 305, 316……………………………….........…………………….359 High Grade Maritime Services Ltd. v. First Bank of Nigeria Ltd. (1991) 1 N.W.L.R. (Pt. 167) 290………………......
    • Nigeria
    • DSC Publications Online Sasegbon’s Judicial Dictionary of Nigerian Law. First edition R
    • February 6, 2019
    ...lead a prudent man to the conclusion that the plaintiff is probably guilty of the offence he is accused of committing (Herniman v. Smith (1938) A.C. 305). There may be reasonable ground in some cases which may not necessarily lead to conviction in which case there is probable and reasonable......

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