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

Eagar v. Field [1820] NSWKR 3; [1820] NSWSupC 3

felony attaint - slander, words spoken in court - court fees - sedition - Field J., personal litigation

Supreme Court
Wylde J.A., September 1820
Source: Historical Records of Australia, Series 1, Vol. 10 at 351-364 (selected parts of enclosures: 4-5)[1]

[Enclosure No. 4]
PAPERS RELATING TO THE CASE OF EAGAR v. FIELD.
[1] Complaint of Eagar, Edward, v. Field, Barron.
In the Governor's Court,
New South Wales to wit. { Edward Eagar of Sydney, Merchant, residing in this
Territory, Complains in a Cause of Suit against Barron Field,
Esquire, also residing in the same Territory, in a plea of trespass on the Case for £50.
Edward Eagar of Sydney,
Merchant, Pl'ff,
Barron Field, Esquire, of { £50 Damages sustained by the said Edward, in
the same place, Defendant. Consequence and by reason
that he the said Barron, on or about the first of January in the Year of Our Lord, One thousand, eight hundred and twenty, at Parramatta in the said Territory, did falsely and Maliciously assert, utter and declare of, to and concerning the said Edward, the words following, that is to say, "You" (meaning the said Edward) "have made seditious Speeches" (meaning seditious speeches against the Government of this Territory), "And you" (meaning the said Edward) "have reared up the Standard of Disaffection" (meaning Disaffection to the Government of the said Territory) "and party" (meaning a party against the Government of said Territory). "You" (meaning the said Edward) "are a revolutionist" (meaning the said Edward had attempted to procure a revolution in the Government of the said Territory), to the damage of the said Edward of £50.
Edward Eagar, Pl'ff in person.
A true Copy of the Complaint filed in my Office.
JNO. WYLDE, Judge- Adv., N.S.W., 29th Augt.,1820. True Copy:
J.T. CAMPBELL, Secy.
[2] Complaint of Eagar, Edward, v. Field, Barron.
In the Governor's Court,
New South Wales to wit. { Edward Eagar of Sydney, residing in this Territory, Complains in a Cause of Suit against Barron Field, Esquire, also residing in this Territory, in a plea of Tresspass on the Case for £50 0s. 0d.
Edward Eagar of Sydney,
Merchant, Pl'ff,
Barron Field, of the same
place, Esquire, Def't {£50 for so much Money by the said Barron, heretofore to wit on the first day of March in the year, One thousand, eight hundred and twenty, at Sydney aforesaid, had and received, at his special instance and request, to and for the Use of the said Edward, and for other Money heretofore also, to wit on the same day and Year aforesaid, at Sydney aforesaid, by the said Edward to the said Barron lent and Advanced at his like instance and request; And for other Money heretofore, Also on the same day and Year aforesaid at Sydney aforesaid, by the said Edward paid, laid Out and expended, to and for the use of the said Barron at his request; And for that he the said Barron, heretofore to wit on the same day and year aforesaid at Sydney aforesaid, did demand, receive and take of and from the said Edward the said Sum of Fifty Pounds, under pretence and colour that the same money was of right due and payable by him, the said Edward, to the said Barron of certain fees of Office; but which fees of Office, the said Edward avers were not in fact, nor of right, nor at all, due and payable by the said Edward to the said Barron.
EDWARD EAGAR, Pl'ff in person.
A true Copy of the Complaint filed in My Office.
29th Augt., 1820. JNO. WYLDE, Judge-Adv., N.S.W.
True Copy: J.T. CAMPBELL, Secy.
[3] Affidavit of Mr. Justice Field.
In the Governor's Court { Between Edward Eagar, Plff,
And
Barron Field, Esqr., Deft.
BARRON FIELD, Esquire, Judge of the Supreme Court for the Territory of New South Wales and its Dependencies, the Defendant in this Cause, maketh Oath and saith that this Action is brought without any special Damage being laid in the Plaint for words, which by Law are not Actionable, and which words were spoken by this Deponent in the execution of his duty, as one of His Majesty's Justices of the peace of this Territory, and as chairman and Organ of a Bench of Magistrates at Parramatta in this Territory. And this Deponent further saith that the Plaintiff in this Cause hath also Commenced another Action in this Honourable Court against him, this Deponent, for the purpose of recovering from him, this Deponent, Certain fees due and paid by the said plaintiff to Mr. John Gurner, the Clerk of the Supreme Court, and which fees are by the rules of the said Court approved by His Excellency the Governor of this Territory payable to the said Clerk, and were neither due nor paid to him, this Deponent. And this Deponent also saith that he is informed and believes that the Said Plaintiff is a Convict attainted of felony; and he was so Convicted in the part of the United Kingdom of Great Britain and Ireland, called Ireland; and although His Excellency the Governor of this Territory hath absolutely remitted to the said Plaintiff the whole of the term, for which the said Plaintiff was transported hither, yet this Deponent had been informed and believes that the name of the said Plaintiff hath not yet been inserted in any General Pardon, which hath passed under the Great Seal of Great Britain. And this Deponent further Saith that, although he hath good defences upon the merits in both the above mentioned Actions, Yet as he and he verily believes them both to originate in the same spirit of revenge for a Magisterial reprimand, which this Deponent gave to the said Plaintiff, as such Justice of the Peace and Chairman as aforesaid ( for it appears by the particulars of the Plaintiff's demand in the aforesaid second Action that the monies, to recover which this Action is brought, were all paid in the Year of Our Lord, One thousand, eight hundred and eighteen) he advised, as the only way in which to prevent the said Plaintiff from harassing him with Suits, to plead such Conviction and attainder of the said plaintiff.
BARRON FIELD.
Sworn at my office, Sydney, this TWENTY SEVENTH DAY OF March 1820 before me
JNO. WYLDE, J.-A.
A true Copy: JNO. WYLDE, Judge Adv., N.S.W., 29 Augt., 1820.
True Copy: J.T. CAMPBELL Secy.
[4] Petition of Mr. Justice Field's Solicitor.
In the Governor's Court:
Between Edward Eagar, Plaintiff, and Barron Field, Esquire, Defendant,
and
Between The same, Plaintiff, and The same, Defendant.
To their Honorable Judge Advocate and Members of the Court.
The humble Petition of the above named Defendant Sheweth,
That your Petitioner is Judge of the Supreme Court and Magistrate of the Territory, and that these Actions are Wrongfully and Vindictively brought against him in those Capacities by a remitted Convict, as he has explained in an Affidavit in each of the said Causes, to which he craves leave to refer this Honorable Court.
That although it appears, by an Official opinion of His Majesty's Attorney and Solicitor General, that felons Convict are not Capable of suing in the Courts of the Colony, yet your Petitioner is fully aware that nothing less than an Office Copy of the record of the Plaintiff's Conviction is legal Evidence thereof; and that, as the Plaintiff was Convicted in Ireland, Your Petitioner must owe his power to avail himself of his rightful Plea of Convict attaint to the indulgence of the Court in giving him time to procure such legal Evidence.
That your Petitioner is equally aware that this is the first Case in the Colony, in which such time has been Petitioned for this purpose; and that, if it were granted to every Defendant in this Colony as a matter of course, the Doors of Justice would be for the most part closed; but your Petitioner humbly submits to this Honorable Court that it will be always in the power of the Courts of the Colony to refuse the indulgence of Time for the purpose of supporting the Plea of Convict Attaint in legitimate and fair Causes of Action, and to put the Defendant to Plead and try upon the Merits thereof.
That there are flagrantly and notoriously not such legitimate and fair Causes of Action between party and party residents in the Colony; but, as York Petitioner has explained in his said Affidavit, malicious, vexatious and vindictive Actions brought by a remitted Convict against the Judge of the Supreme Court and the Chairman of the Bench of Magistrates at Parramatta.
That, if these were Actions Against your will Petitioner in his Private Capacity for legitimate Debts or Demands, your Petitioner would scorn to plead any other wise than to the Merits of the Case; but under the above grievous and harassing Circumstances,
You're Petitioner humbly prays this Honorable Court that they will be pleased to grant him twelve months time to procure such Evidence from Ireland, as will maintain his rightful and (in this case) equitable Plea of Convict attaint.
And your Petitioner will ever pray,
W.H.MOORE,
Attorney for Barron Field, Esquire, the Defendant.
A true Copy of the above filed in my Office:
29 Augt., 1820. JOHN WYLDE,Judge-Adv., N.S.W.
True Copy: J.T. CAMPBELL, Secy.
[5] Order of the Court in Eagar v. Field.
In the Governor's Court:
Eagar v. Field Esqre.
Same v. Same.
UPON reading the Affidavits of the Defendant in respect of the Complaints, and upon hearing the Attorney of the Defendant and the Plaintiff in person, It is Ordered that the examination of the above Complaints shall be and stand Postponed for twelve Calendar Months, and that in the meantime all proceedings be stayed.
Dated the 4th Day of April, 1820.
By Order of the Court,
JNO. WYLDE, Judge-Adv., N.S.W., 29 Augt., 1820.
... [ Enclosure No. 5]
JUDGE-ADVOCATE WYLDE TO GOVERNOR MACQUARIE
Judge-Advocates Office, Sydney, 1ST Septr., 1820.
My dear Governor,
In conformity with your desire, I beg to enclose, numbered from 1 to 6, Copies of the papers filed in my Office upon the Application made by the Judge of the Supreme Court to postpone the trial of the Actions brought against him in the Governor's Court by Mr. Eagar for the recovery of fees paid, and for damages on account of certain words spoken of him by the Judge, when presiding at a Bench of Magistrates at Parramatta.
These Documents will generally inform you of the nature of the seats and of the Application on the part of the Judge, as Defendant, to postpone the Trial for 12 months, in order to obtain proper Evidence of the Plaintiff, Eagar, having been transported here that as a Convict attaint; but as your further request to be made acquainted generally with the Grounds upon which the Court granted the Indulgence, I have also transmitted at Copy No. 7 of the short Minutes of the Argument I took at the Time. To these, I would add the remarks, that such Applications by Parties to a Suit to postpone Trials, for want of necessary proofs on either side, have been by no means of uncommon Occurrence in the Courts here, and are very frequent in the Courts at home. At this time, there are 2 or 3 Actions in the Supreme Court, where proceedings are stayed upon such Orders for 12 and 18 Months, and in one Case for 2 Years. And in the Court of King's Bench in England, a trial between Messrs. Palmer and Kemp of this place was some few Years back, delayed for 2 Years on the suggestion of one or other or both of the parties, that it was unsafe for them to proceed to trial without certain Evidence, that could be obtainable from this Country only. As to putting off Trials therefore, the application is altogether an Appeal to the equitable Jurisdiction of the Court, and its success dependent upon the fact that there appear a bona fide and unavoidable Reason, properly alleged, why it is unsafe to proceed to Trial; such a fact is the absence of material Evidence to support a legal Defence, and in such case, if the Court be satisfied, that Injustice would be done in refusing the application for the time absolutely necessary to obtain the proof (unless the party to it has been guilty of laches, or is chargeable with not having conducted himself fairly and candidly) it may be assumed as a general Principle, that the Court will consider the party as entitled to the Indulgence such an Equity of case lays claim to; In this question of equity, the Court will ever also take into consideration the parties to, and the merits of the particular Suit, and are disposed to incline to, or denies charge and Indulgence as the same may appear meritorious or otherwise. With respect to the Decision immediately of the Governor's Court in favour of the Application of the Judge, the Impression of a whole Court was in the first place that the Suits were, as suggested, vexatious, malicious, and brought forward only with the View at least of casting an Odium on the Judge in his public character and Office. For with respect to the Action for fees, the Court could not but remember that Mr. Eagar, when allowed to practise as a Solicitor in the Courts, had for years paid them without murmur or opposition, and as to the Action for words it could not but be observed, that the words charged were not in themselves at all actionable.
The court had again to consider that, if the time were not allowed, the trial would place a Judge of the Territory before one of the Colonial Courts upon a question, where his public Rights as a Judge under His Majesty's Commission (more fitly to be discussed and settled in another place) appeared to be involved; while the Judge might then urge with some Justice that he had been denied the opportunity of making and proving that legal Defence, which the laws of England without consideration of or regard to general public consequences, could have afforded him; and of which protection the Courts there would have given him the power of fully availing himself. On the other hand, if in such Actions the Plaintiff obtained Judgement, there could be little doubt, a great encouragement would be given to the litigious Spirit of resistance, that then seemed not only in the Plaintiff but in a certain party of the Colony to prevail.
With regard to the efficiency of the Plea itself as a defence, the Court could entertain no doubt; as already aware of the Decision at home in the Case of Bullock v. Dodd, the mere Question therefore was, whether the Judge should be hurried on to Trial, without being allowed to acquire the means of proving a fact with regard to Mr. Eagar, which would invalidate Claimed on his part already considered to a rise in malicious vindication and insolent Designs.
The Opinion of the Court however, upon this summary Application, postponed at least for 12 Months any Judgement upon the point of so much more serious Importance, which Mr. Eagar improperly rather in such a state of the proceedings was permitted so much to press upon the Court, how far the Governors remission operates as a General Pardon so as generally to restore our capability of sustaining Civil Suits. In the Interim, the Court was satisfied that so grave a Matter of Interest to so many in this Colony would most probably be submitted to the consideration of His Majesty's Ministers; while with regard to the Parties to the Suit, though matter of Defence might be afforded to the Defendant, to the Plaintiff would also be opened the power perhaps of effectually resisting it. Delay indeed seemed to bestow upon the parties themselves the facility of coming before the Court, if the Question was to be tried, better prepared for the Maintenance of their mutual rights; while at the same time public Judgement of the Court was reserved, which might have produced a serious Sensation on the Suitors in the Colonial Courts and affected in no inconsiderable degree the public Dealings and Credits of the Colony.
I beg to remain, &c.,
John Wylde.

Note

[1] One of the most important decisions of the period, Eagar v. Field raised the question of whether an attainted convict or emancipist was able to sue in the courts. Edward Eagar was an emancipated convict, a former Irish attorney and later an advocate for the rights of emancipists. Eagar sued Judge Field on two grounds: for defamation when Field called him a revolutionist, and over the fees Field charged in the Supreme Court. In this case, Judge Advocate Wylde acted as Judge of the Supreme Court.
Despite occasional statements to the contrary, attainted convicts frequently sued in the New South Wales courts from Cable v. Sinclair, 1788 onwards. But the beginning of the end of that practice was a decision in England, Bullock v. Dodds (1819) 2 B. and Ald. 258; 106 E.R. 361. In the latter case, a convict who had been pardoned in Sydney by Governor Macquarie had returned from New South Wales to England and commenced a legal action in the King's Bench Court. The court refused to hear his claim. It held that Governor Macquarie's pardon was informal as it had only been issued under the seal of the colony, and not confirmed, as required, under the Great Seal of England. Field argued that Eagar's pardon was invalid for the same reason.
It was necessary to prove Eagar's attaint however, which required a copy of the record of his original conviction and sentence. Attaint attached only to those who had been sentenced to death for felony, even if that sentence were later reduced to transportation. The attaint lasted the full period of transportation unless a valid pardon were made. Field argued that the court had a discretion whether to call for the record of conviction from England or Ireland. Without it, there was no proof of attaint. Such a discretion would have placed the rights of emancipists at the whim of the judiciary. (See Doe dem. Jenkins v. Pearce and wife, 1818.)
The common law prevented attainted persons from suing, holding property and giving evidence in court.
For further material on this case, see Sydney Gazette, 11 August 1821. See also A.C. Castles, An Australian Legal History (Law Book Co., 1982) at 112-114; D. Neal, The Rule of Law in a Penal Colony (Cambridge University Press, 1991) at 178. Generally on attaint in colonial Australia, see B. Kercher, "Perish or Prosper: the Law and Convict Transportation in the British Empire, 1700-1850" (2003) 21 Law and History Review 527-584.

Published by the Division of Law, Macquarie University