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

Solomon v Moore [1826] NSWSupC 21

assault - soldier, action against - auction - appeals - new trial - law reporting

Supreme Court of New South Wales

Stephen A.C.J.,[1 ] 3 April 1826

Source: Australian, 5 April 1826


This was an action brought by the plaintiff, a respectable inhabitant of Sydney, against the defendant, an officer of the army, for an assault and battery.

Samuel Lyons --- I was present at an auction held in the Military Barracks in the month of June last.  The effects of Ensign Gore, then deceased, were advertised to be disposed of; I was there before the auctioneer made his appearance, saw the plaintiff there also, he went away for a short time and again returned.  The sale had by this time commenced, it was held under the verandah of some portion of the barracks.  Plaintiff went on the steps leading to the parapet, I also stood at a short distance from him, saw a centinel accost plaintiff and desire him to go down.  Solomon, the plaintiff, refused, and alledged as a reason that it was a public auction, and he had a right to be there.  The conversation between sentinel and plaintiff had not continued more than about 20 seconds, when three officers came towards him, one of whom pushed Solomon on the breast, which occasioned him to fall down the steps, along with others who were near to him.  The officer who so stuck him was Captain Moore; he heard no words pass between plaintiff and the gentleman alluded to.

Cross-examined.  Will swear that plaintiff was not present at the time when conditions were made that no person should go beyond the steps of the verandah; cannot say whether Solomon was in a theatrical attitude when speaking to the sentinel, or his arms akimbo.  Witness entertains no feeling of disrespect towards the military whatever.

Re-examined.   After plaintiff was taken away, one or more of the officers expressed regret to see that any thing of the kind had taken place.

Henry Austin deposed to his meeting plaintiff coming out of the Bank on the day of the auction in the barrack  accompanied him to the sale  Solomon and witness having some business; to transact at a short distance, went away in company together  afterwards went to the sale  it had then commenced  they went there perfectly quiet and peaceable  saw Solomon taken out of the barrack yard by some soldiers  this was done at the instance of a tall man who wore a green coat  he afterwards ascertained him to be captain Moore  the soldiers were so violent in the execution of their orders, that witness felt it his duty to see Solomon safe out of the barrack yard  he was apprehensive they would ill use him.

John Slade saw Lewis Solomon at the barrack on the day of the sale  he then received a considerable sum of money which he put into his trowser's pocket  he went to the auction, observed him going up the steps leading to the verandah  he had one hand in his pocket where he had previously deposited his money  when he had reached the top step, a sentry desired him to go down  he stood there with a drawn bayonet in his hand  saw captain Moore come forward with his two hands clenched, and push Solomon in the breast  he fell from the violence of the thrust  among several others who fell in consequence, witness was one  Solomon on receiving the thrust drew his hand out of his pocket to save himself from falling  he had never taken his hand out of his pocket from the moment he had ascended the steps, until he was thrust down by defendant  thought he kept his hand in his pocket for the security of his money.

Thomas Spicer corroborated the last witness's testimony in the principal points.

Mr. Michael Robinson, chief clerk of the police-office  produced a summons, granted at the instance of Lewis Solomon, against captain Moore, on a charge of assault  a hearing of the case came on before the bench of magistrates  several person were subpoenaed in support of the charge  it appeared in the presence of captain Moore, who was seated on the left hand side of Mr. Rossi  that the bench conceived it not necessary to go into the case as captain Moore admitted the assault  and accordingly it was thought proper to take the deposition of Mr. Solomon, and then they would bind captain Moore to keep the peace.

On behalf of the defendant, several officers and a soldier were called upon to give evidence.  The soldier stated that the plaintiff pushed his way up the steps of the verandah.  The sentry told him to go down and he refused, and before the sentry had time to put him down, the plaintiff fell  did not see who struck him.

The Officers stated, that Solomon pushed past the sentry, and putting his arms a kimbo, said, he should like to see who would push him down for he would be dmd if he would go down for any one.  It was a public sale-room, and he had a right to be there  that Major Lockyer remonstrated with him and was in the act of collaring him, to get him out of the verandah when Captain Moore said, you shall go down, and he still refusing, gave him a shove, which pushed him down the steps.  Thought he came to make a disturbance, and considered his conduct very reprehensible.[2 ]

The Acting Chief Justice in charging the assessors, stated, that in cases of assault it was not always necessary to plead a justification, as justificatory matter might be given in evidence under the general issue, and observed, that a person had no more right to enter a sale room to do any thing contrary to the conditions of the sale, than he had to go to a ball room in a dirty coat or dirty shoes.[3 ]  His Honor thought that captain Moore was justified in what he did.  The assessor[s] accordingly found a verdict for the defendant.



Stephen A.C.J, 10 April 1826

Source: Sydney Gazette, 12 April 1826


In this case, Dr. Wardell, Counsel for the plaintiff, made an application to the Court for a rule to shew cause why the verdict for the defendant should not be set aside and a new trial granted, on the ground of a misdirection by the learned Judge, and a verdict returned contrary to evidence.  His Honor granted the rule Nisi, at the same time observing, that nothing which had been urged by the learned Counsel had the effect of altering the opinion he already formed and expressed as to the law of the case.  His Honor was glad, however, that the application had been made, as it would afford an opportunity for the correction of a mis-statement as to what had fallen from him in his address to the assessors, which appeared in the Australian newspaper, wherein it was stated, that he had given it as his opinion that Captain Moore was justified in what he had done.  Such was not the case.  He left it entirely to the Jury to decide, whether an assault had been committed, and he appealed to the candour of any disinterested person who heard him, whether that which had fallen from him would bear the interpretation put upon it in the statement of which he complained.  The report which appeared in the other paper (the Sydney Gazette), was substantially correct; and he was induced to make these observations, inasmuch as however fallible his judgment might be, still he did not wish that opinions, which he had never entertained, or sentiments he had never expressed, should go forth to the world uncontradicted.  He had before given it as his opinion, which he would then iterate, that these were circumstances of justification which might be given in evidence under the plea of the general issue, for it was futile to say that a defendant could not in justification of an alleged assault, given in evidence the circumstances which led to it.  If, as he had before stated to the Jury, Captain Moore had only shoved the plaintiff out of the way, in order to prevent mischief between him and the sentry.  If instead of striking him, he merely pushed him with one hand, as had appeared in evidence, and that he fell down, surely to say that under such circumstances a defendant should put in a special plea would be to make the law turn upon a mere principle of technicality, and not upon common sense or reason; and when contradictory evidence as to a particular fact appeared, the Jury were to decide to which side they would give credit.  It had been observed by Dr. Wardell, that the question was entirely of a party feeling. His Honor was of the same opinion.  It was so.  A soldier was keeping back a number of people who wished to press forward contrary to previous regulations, and because a sentry did that which a constable would have done had he been there, that feeling of opposition to the military was called forth, and which feeling he had no doubt had originated the prosecution, more than any sense of injury the plaintiff had received.  Such was His Honor's opinion of the subject, and unless authorities should be found with which he was unacquainted, and which would go to rebut the experience of a thirty years practice, he should still hold the same opinion as to the law in such cases which he had already expressed at the trial.  His Honor, however, granted the Rule to shew Cause to be argued on the first day of next Term, when he hoped the Chief Justice (Forbes), would be enabled to preside.

Dr. Wardell observed, that he did not appear there to vindicate any thing which appeared in a newspaper, but he thought, notwithstanding, that what His Honor had expressed, amounted to an opinion that the defendant was justified.  The learned Gentleman was proceeding to shew that such was the case, when His Honor observed, that it did not become him, at that time, to argue the point with Dr. Wardell, who would have an opportunity of stating his objection when the Rule came on to be discussed on the first day of next Term. - Rule granted.[4 ]



Forbes C.J.,[5 ] 10 July 1826

Source: Sydney Gazette, 12 July 1826



This was a motion for a new trial in the above case.  Dr. Wardell rose to move that the Rule Nisi, obtained before Mr. Justice Stephen, be made absolute, and at the request of His Honor the Chief Justice briefly recapitulated the grounds on which he made the application.  It appeared that the plaintiff attended a public auction of the effects of a deceased Officer, held in the Barrack-square; that the Officer who regulated the proceedings of the sale had given orders that only a certain part of the people, those who, in his idea, were the respectable portion, should be allowed to ascend into the verandah where the auction was held, whilst the remaining part, who did not wear superfine cloth, and long coats, were ordered to be kept below within certain limits.  The plaintiff never supposing such regulations in existence, went bustling up the steps, considering it his right to be present at a public sale, and passed the sentry who was stationed above to enforce the orders of the Officers, as it was sworn, without committing any assault whatever on him.  It was also proved, that he was no sooner on the top step, than he was violently pushed off, that he came tumbling down, overturning a number of old people in his way, and that the defendant, was one of a number of Officers who ordered him to be forcibly dragged out of the Barrack-yard by the legs and arms, by soldiers with drawn bayonets.  It was proved by a witness called for the defendant, that he saw a blow or push given by some one or other, though whether by the defendant he would not positively say.  But, there was the admission of the defendant at the Police Office, that if shoving a party constituted an assault, than he was guilty of an assault.  It was also in evidence from the defendant's witness, that the plaintiff had not gone farther than the verge of the staircase when a scuffle ensued, and the defendant then came up and shoved the plaintiff down.  But this testimony was completely controverted by the first witness for the plaintiff, who expressly stated, that no altercation whatever took place between the plaintiff and the solider.  The Learned Judge who tried the case, in he summing up, took a distinction which he (Dr. W.) was not, even then, able to comprehend that the defendant was justified in what he had done, as he had prevented a further breach of the peace by pushing off a man who had conducted himself with violence.  But, in the first place, all violence was negatived on the part of plaintiff; it was not at all proved that any assault had been committed on the defendant, and secondly, if the defendant intended to rely on a justification he should have pleaded it specially and not the general issue.  The Judge held it as a fact that the defendant committed no assault, and therefore there was no necessity to justify what had not taken place, and that in the face of evidence to the contrary; and, therefore he (Dr. Wardell) contended that, as there was an imposition of hands on the plaintiff, it was sufficient to obtain a verdict for him, inasmuch as the defendant did not justify.

Mr. Rowe appeared against the Rule.  There were two grounds on which the application was made.  First, a misdirection on the part of the Judge, and secondly, that the assessors returned a verdict contrary to evidence.  With regard to the direction of the Learned Judge, he contended that it was perfectly correct.  The conduct of the plaintiff was most outrageous.  He was aware of the conditions of the sale, and of the notice given by the auctioneer, that no persons were to come up under the verandah, which was the private property of the Officer who conducted the auction, and if the plaintiff had a right to force his way there, so had all the civilians who were assembled below, and then, as was observed by Major Lockyer, the auctioneer could not have proceeded in his duty.  Why then did Capt. Moore interfere? what was the animus with which he interposed?  Was it to prevent an injury to the plaintiff, or to prevent his committing an injury? for if he interfered merely for the sake of order, and to prevent further mischief, then he had a right to interfere.  The plaintiff was himself guilty of a misdemeanor in law, by committing an assault on the persons by whom he was surrounded in ascending the steps in the violent manner, and making use of the violent language he did.

His Honor here observed, that in the court of politeness the plaintiff might have transgressed, but he was not aware of any law which constituted mere rudeness a misdemeanor.

Mr. Rowe referred His Honor to a case reported in 1-Saunders, p. 13, where it was held that a man going into a church with his hat on, was guilty of a misdemeanor, and that a person taking it from his head had not committed an assault.

His Honor was of opinion, that this was a different case.  There it was profanation.  But suppose a person going into an assembly of respectable people with his hat on, he would be misdemeaning himself, but certainly not in such a way for which he could be indicted.

Mr. Rowe continued:- Captain Heavisides expressly proved that the plaintiff had forced his way up the steps, notwithstanding he heard the notice given by the auctioneer, and, in an attitude of menace, dared any person to put him from the verandah.  His manner was, in fact, an assault in law.  That the general issue was a sufficient plea, he would submit upon this ground.  Suppose two parties were fighting, and a third party interfered to separate them, would the party upon whom the third party laid his hands have an action for an assault; and would not the plea of the general issue in that case be sufficient to shew the animus with which he intended to separate the other parties, and not to commit an assault?  The quo animo was a question for the Jury, and the Judge having very properly left it to them, they found that the intention of the defendant was not to commit an assault, but to prevent further mischief, "It was no assault to restrain a person from a mischief to himself or to another, or a man in a passion," &c. (Selwyn, vol 1, p 28).  The animus constituted the assault; and, if the Jury were of opinion that the interference of the defendant was to prevent further mischief to the plaintiff himself, or to the persons about him, then the defendant was entitled to a verdict.

Dr. Wardell replied at considerable length. 

His Honor stated, that he would not dispose of the case at once.  It appeared to have been the disposition of Mr. Justice Stephen, on more than one occasion, to admit that under a plea of the general issue, which would in any case go as a defence to the action.  How far the laws were correct, which made a distinction between words spoken and acts done, was not for His Honor to say --- he only sat there to interpret them.  He would reserve the point as to the direction given by the Judge who tried the case.  The question as to the verdict being contrary to evidence, he would look at it more tenderly, as so much in that case depended upon the degree of credit which the Jury attached to one side more than another.  Judgment deferred.



Forbes C.J., 21 November 1826

Source: Sydney Gazette, 25 November 1826


This was an application, on the part of the defendant, for a new trial, on the ground of mis-direction by the learned Judge who tried the cause, and also of a verdict being had contrary to evidence.  A rule Nisi had been granted, and, after hearing the arguments of Counsel, judgment was deferred, until to-day, when His Honor directed that the Rule be made absolute.[6 ]



[1 ] Forbes C.J. was on sick leave from 23 February 1826 until 29 May 1826; John Stephen was Acting Chief Justice in this period: see Australian, 23 February and 3 June 1826.  This case was also reported by the Sydney Gazette, 5 April 1826.

[2 ] Mr Rowe acted for the defendant.  According to the Sydney Gazette, 5 April 1826, he argued that the smallest coin would be too much to award under the circumstances.  He also "hoped His Honor would withhold his certificate from the record, in order to entitle the plaintiff to his costs, as upon the authority of 21 Tidd, 966, he was not entitled to costs, even if battery were proved, when the verdict was under 40s. without the certificate of the Judge."

[3 ] The Sydney Gazette, 5 April 1826, reported Stephen A.C.J. as follows on this point: "It was a matter of every-day occurrence where persons transgressed generally understood and received regulations in public places, that they were forcibly expelled from the rooms; and while it was His Honor's duty, and also the duty of the Gentlemen Assessors to protect the poorest or meanest individual against the assault or oppression of the rich and powerful, still it was no less their duty to prevent the infringement of those laws of order and subordination, by which society was upheld."

[4 ] On the motion for a new trial, see also Monitor, 28 July 1826.

[5 ] Stephen J. resigned as temporary Justice of the Supreme Court on 27 May 1826, and was not sworn in as puisne Justice until early November 1826.  See C.H. Currey, Sir Francis Forbes: the First Chief Justice of the Supreme Court of New South Wales, Angus and Robertson, Sydney, 1968, pp 97-98; Australian, 3 June 1826.  In the meantime, Forbes C.J. sat alone.

[6 ] See also Monitor, 24 November 1826.

Published by the Division of Law, Macquarie University