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

Adams v. Dawson [1827] NSWSupC 19

master and servant, trespass, false imprisonment, magistrate, action against

Supreme Court of New South Wales

Stephen J., 22 March 1827

Source: Sydney Gazette, 24 March 1827

ADAMS versus DAWSON, ESQ.

This was an action of trespass and false imprisonment, brought by the plaintiff, John Adams, against the defendant, Robert Dawson Esq. J. P.  The damages were laid at £490, and the defendant pleaded the general issue.[1]

Mr. W. C. Wentworth stated the case.  The plaintiff came out to the Colony from England as an indented servant of the Australian Agricultural Company, and was placed under the directions of the defendant, as Agent for the Company, at their Settlement, at Port Stephen.  He regretted again, as on a former occasion, being obliged to express his opinion of the conduct of the defendant, who, himself a Justice of the Peace, had refused to permit the trial of the action to be before a Jury of twelve men.  He could have wished that this other case of a private individual against a Magistrate had come before Assessors who were not Magistrate

He (Mr. W.) was far from intending to insinuate aught against the Gentlement [sic] (Messrs Balcombe and Piper), who were to decide on the merits of the case, but he could not help observing, that, by the conduct of the defendant, they were placed in a like suspicious situation to the two gentleman who sat upon a late occasion, and who were most indecently forced to act a Judges, in a cause wherein several of their own body were interested.  He was confident, however, from what he knew personally of the Assessors, whom he was addressing, that the present defendant would not derive that benefit from having his case decided by them, which there was no doubt he expected to derive, but that they would award such a verdict as fair and impartial justice demanded at their hands.

The case, he was bound to say, was one of unparalelled enomity [sic].  Notorious as, he was sorry to say, the Colony was for such acts, the present was the very worst of all the Magisterial delinquencies that had ever come to his knowledge, or that of any other person, and was a second case of atrocity on the part of the defendant, but to the other, of which he would not refer, as the plaintiff had been forced to seek satisfaction in another way.  It would appear from the evidence of the nephew of the defendant; however unwillingly that evidence should be drawn, that the plaintiff was an indented servant to the Australian Company, and employed at the Settlement at Port Stephen.  That this gentleman, Mr. John Grimsey Dawson, nephew to the defendant, having, as the plaintiff believed, no authority over any person at the Settlement, came up  to the shop where he was at work, and asked him what he was doing.  The plaintiff told him that he was at some work for one of the overseers, which Mr. John Dawson desired him immediately to lay aside, and to obey the order of a man named Cowell.  The plaintiff observed, that he would not work under Cowell, who knew nothing of his business, he being a brickmaker, and the plaintiff a blacksmith, at all events, not without the express orders of Mr. Robert Dawson, whose authority alone he believed himself subject to.  Mr. John Dawson rode away, and, at some little distance from the plaintiff's workshop, meeting with a constable named Byron, verbally directed him to go and take the plaintiff into custody.  Byron accordingly proceeded on his errand, with a drawn sword in his hand, which, when he came within a short distance of the plaintiff's workshop, he began very leisurely sharpening on a stone, and when properly got in order he went up to the plaintiff and told him that he had been directed by Mr. John Dawson to take him into custody.  "Where is your warrant?" says Adams, "I am a free man, and will not stir a step without proper authority."  Byron began brandishing his sword, but the plaintiff, being an old soldier, snatched a red hot bar of iron out of the fire, held it up to his nose, and desired him to smell it.  Byron very quickly decamped; and the plaintiff immediately went to the tent of the defendant, where, however, the nephew having arrived before him with the first story, and the defendant addressed the plaintiff, on his entrance, with "I'll punish you, I'll settle you, you shall have three months in Newcastle gaol;" and the very same evening Byron came with a warrant, and took the plaintiff before the defendant, where a committal was already drawn up, and without a tittle of evidence being read over to him, or an opportunity of rebutting it, if any were taken, being afforded him, he was committed to the gaol at Newcastle for three months, to be kept to hard labour, and confined for that night in a black hole about six or eight feet long, and four or five feet wide, where, by favour, he procured a piece of bark to keep his body from the wet that was on the ground, until the following morning, when he was conveyed to Newcastle, and delivered over to the gaoler.  It was not necessary, observed Mr. Wentworth, to dissect the warrant itself very particularly for, by the 43d section of the New South Wales Act,[2] whose provisions were expressly incorporated in the Company's Act, it was clear that the case altogether was one in which the defendant had not the slightest jurisdiction; that Act, whilst it gives a summary jurisdiction to Magistrates, expressly providing that the complaint shall be upon oath; before two Justices of the Peace.  The defendant, he contended, must have known this.  He must have known that the matter, into which he indecently and improperly presumed to enquire, was one over which he had no jurisdiction; and, that he did know it, was clear from the very circumstance of his having awarded the full amount of the punishment allotted by the Act.  It would be proved also, that Mr. John Dawson the complainant on this occasion, was the nephew of the defendant, a circumstance which would, of itself alone, in the mind of any but an arbitrary man, have prevented him from interferring between him and a servant.  Why was not the plaintiff sent before the Bench of Magistrates at Newcastle?  Why! because the defendant imagined himself above all law, and thought that he could commit the greatest delinquencies with impunity.  He had set every legal provision at defiance; he took upon himself a jurisdiction not given by the Act; he sat as Judge, in a case in which it was indecent for him to sit; and he committed the plaintiff to prison, (and hard labour also, not at all mentioned in the Act), without giving him any opportunity of rebutting the charge against him, by reading over one tittle of evidence in his presence.  He (Mr. Wentworth) had heard of the Spanish Inquisition; it was certainly in some cases worse than the present, for there a confession was extorted from the blood and bones of the wretched being who unfortunately came within its fangs, but, even there, even in the Inquisition, though the offender is not allowed to see his accuser, there was still something on which the decision of the Judge was founded; but, in the case before the Court, he most sincerely believed that not one atom of evidence had been taken; at all events, none was taken in the presence of the plaintiff, neither was any charge read over to him, nor was he called upon for his defence; that his committal to gaol was in fact premed[i]tated, and that the warrant was already made out, aud [sic] only awaited the signature on his arrival.

In defence to this action, it was impossible that any evidence could be offered, except in mitigation; but he should like to know what possible mitigation could be offered?  There was the plaintiff torn from his wife and family, and imprisoned for three months, by one who had just as much right to sign the warrant for his commitment, though a Justice of the Peace, as he, Mr. Wentworth, had; what, he would ask, what compensation would the plaintiff receive under such circumstances in England, where the liberty of the subject was known and valued?  What compensation have persons received who have been arrested by a bailiff in mistake, and kept in confinement only one hour?  One, two, and three hundred pounds! what compensat[i]on, then, he repeated, would the plaintiff receive, if so gross an act of injustice, were brought before an English jury?  The defendant's whole fortune would not be thought too great a recompense: but, he was sorry to say it, it was impossible that such a case could occur in any country but this; it was impossible, disgraceful as it was to make the acknowledgment, that such an act of tyranny could take place in any other country, and he hoped that the plaintiff would receive such reparation at the hands of the Jury, as would convince the defendant, convince the world, that even here, such an act could not be perpetrated with impunity.

Mr. James Croft, keeper of the gaol at Newcastle, stated that the plaintiff was committed to his custody, on the 8th of June, 1826, by virtue of a warrant, bearing the signature of the defendant; he was kept to hard labour, white-washing and securing the interior of the prison, and on the gaol allowance, until the 30th of August following, when he was discharged.

Cross-examined, - Knows the signature to the warrant, to be that of Mr. Dawson; the plaintiff was not treated in any unusual way in the prison.  Re-examined: the plaintiff was brought in custody of Byron, Mr. Dawson's constable.

Mr. G. M. Slade proved the signature of the warrant to be that of the defendant.

Mr. John Grimsey Dawson, nephew  to the defendant, stated that he made a complaint to his uncle, of the plaintiff's conduct, in consequence of which he was sent to gaol; the complaint was for insolence, and refusing to attend to witness' orders; the plaintiff was not present, when the complaint was made; witness was going past the plaintiff's work-shop, and learning that he was doing something by the direction of one of the over[s]eer's, desired him not to attend to that overseer's orders, but to obey another named Cowell; the plaintiff refused to do so, and was extremely insolent; he said to witness "d--n you, you want to get me into gaol again." witness cannot tell whether the plaintiff was directed by the defendant to obey his (witnesses') or Cowell's orders; the plaintiff saw the other servant do, and he also acted under witness' direction on board the ship coming out; witness did not send the constable, Byron, to take the plaintiff into custody; does not know how he came there the first time; witness made h1i]s complaint to the defendant on oath; the plaintiff was not present, the statement was taken down in writing, witness believes, by the defendant; it was about two or three hours after, that the plaintiff was brought up, and the statement was then read over to him: plaintiff was asked if he had any thing to say to the charge alleged against him; he said nothing, but asked witness to look over it, and intercede with the defendant for him, witness did not do so; the defendant was the only Magistrate present; the plaintiff was sentenced to the imprisonment upon witness statement: witness does not know that he was put into the watch house that night; did not hear the order given to lodge him there; the plaintiff had a wife and five children there.

Cross-examined.  Witness was a Superintendent in the Establishment, and always acted as such, since his arrival at Port Stephen; witness was known as such to all the servants there, none of whom, with the exception of the plaintiff, ever discharged his orders; the plaintiff's conduct was at all times exceedingly insolent: on this particular occasion, he peremptorily refused to give up the work upon which he was employed, and attend to Cowell, without the defendant's own orders; the defendant is any thing but harsh to the servants, all of whom, the plaintiff only excepted, were extremely well satisfied with his conduct towards them; the plaintiff bears the character, amongst the rest of the servants, of a very drunken, and when so, a very furious man, and abusive to every person indiscriminately; he said to witness, when before the defendant, that, if he would intercede for him, he would not be guilty of the like offence again; Cowell was a general overseer.

Mr. Norton, for the defendant, addressed the Court at considerable length, but called no witnesses.  He strongly objected to the line of conduct adopted by Mr. Wentworth in his opening of the case, as regarded the defendant, as well as in reference to the gentlemen who sat as Assessors; and, whilst he admitted that the defendant had exceeded his jurisdiction, through ignorance of the law on the subject, he contended, that the only injury the plaintiff had suffered was the infliction of a punishment which he most unquestionably merited, from the insolence of his conduct, by one Magistrate instead of two; that the plaintiff had not shewn any loss he had sustained by his imprisonment; nor could he, for the fact was, that his family were supported by the Company during his absence from them; and that, therefore, whatever damages the Court might think proper to award in this case, would be so much clear gain, and cause him to rejoice throughout his life, if his drunkenness did not shorten it, that he was so fortunate as to get drunk, be insolent, and sent in consequence to the gaol at Newcastle.  He concluded, by trusting that the Court would see that the case was one in which the defendant had acted solely from error, and that no malice whatever had been proved.

His Honor, Mr. JUSTICE STEPHEN, told the Jury, that the admission of the defendant's Counsel, of his having acted contrary to the law, had prevented the necessity of any remarks from him on that subject.  The verdict, therefore, should be for the plaintiff, and the only question for the consideration of the Jury was, the amount of damages to which he was entitled.

The Assessors, after a short consultation, returned a verdict for the plaintiff, and assessed damages at £50.

 

Monitor, 6 April 1827

THURSDAY, MARCH 22. - Adams, v. Dawson, J. P. -

Our readers will recollect our giving a narrative of the oppression endured by the Plaintiff, who is a blacksmith, and who was the indented servant of the Agricultural Corporation, by the illegal conduct of the Defendant.  Almost all the facts stated in The Monitor of the 29th. September, page 158, column 1, were proved on the trial.  We were astonished to think that the Assessors gave only 50l. damages.  The sufferings of Adams were great.  The conduct of the Defendant most illegal and oppressive.  And when it is recollected that Adams has a family of grown-up daughters all depending on him for protection - that he was separated from them and sent to a distant gaol, where from poverty he was compelled to live on gaol allowance and sleep without bed or blanket, we are astonished the Assessors should have given such small damages.  We think the very Jury who only gave Dr. Wardell a shilling, would, by exercising the same sound judgment in this case, have awarded 200l.  Fifty pounds would not reimburse Adams for his actual losses, not mentioning his feelings and sufferings which are equally proper subjects for damages.

The Australian Agricultural Company, v. Adams. -  These were the same parties.   This action was brought on a written agreement entered into between them, and which the declaration alleged the Defendant had broken.  Verdict for Defendant.  Mr. Stephen in summing up took occasion to comment on the inequitability of the agreement, because it stipulated that if Adams failed in his duty in the least particular, he was to pay a penalty of 200l. whereas the Corporation were under no penalty at all?  This agreement is not very creditable to the Company.

Notes

[1] See also Australian Agricultural Company v. Adams, March 1827.

[2] (1823) 4 Geo. 4 c. 96

Published by the Division of Law, Macquarie University