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

Girard v. Rapsey [1827] NSWSupC 58

assault, damages, contemptuous

Supreme Court of New South Wales

Trial, 24 September 1827

Source: Monitor, 27 September 1827

Supreme Court, Civil Side. - Monday - GIRARD. v. RAPSEY.  The Plaintiff in this case complained of an assault committed upon him by the Defendant.  This was a sort of counter-proceeding to a prosecution instituted reversely, the present Plaintiff being bound over to appear at the Quarter Sessions upon a like charge.  The premises upon which the assaults took place, were claimed by each party, as sub-assignees under the original mortgage; and the present Defendant, conceiving the Plaintiff a trespasser, posted upon his pig-sty a written caution, which the latter removed, and proceeded to load a cart with manure for the purpose of removal.  The Defendant ran to the spot and prevented the Plaintiff's servants from proceeding in this work; the Plaintiff then observed that he would ``settle that business," and began to load the cart himself; the Defendant stopped his progress also, and some pushes were made, as it should seem on both sides.  Three witnesses were brought forward, one of whom thought the scuffling and shoving mutual - another did not see the first shove - but the third did.  No damage was done on either side, but the law holding the laying hands on the person of another, actionable, and the Plaintiff's servants being obliged to leave their object unaccomplished, he now sought redress, not as the Learned Counsel for the Plaintiff observed, for the sake of damages, but to show the Defendant that he had acted wrong.

Mr. Wentworth, for the defence, was astonished to see such a case brought before the Court.  The Plaintiff was a man whose martial character was so well known in this community, that he much questioned if many would be found who would enter the lists with him, even in defence of their own dung-hills.  (Here the Judge and the audience smiled.)  He would inform the Court, that the Plaintiff had been a knight of the sword, under the great Napoleon, notwithstanding his present humble and peaceable profession of a baker.  The sword which had once graced his thigh, he preserved as a relic, and even worshipped.  The Defendant on the other hand was a knight of the hammer, who he believed seldom was known to knock ought down, save with the emblem of his profession.  The Plaintiff's temper was no doubt considerably mollified by his baking pursuits, but his general irrascibility was tolerably well known.  He would however advise him to attend to his milling and grinding, until he could establish a better case than he had done in this instance, and to set a better example, than forcibly attempting to take away his neighbour's manure.  If a farthing damages were awarded, he hoped the Plaintiff would have the goodness to hand over some of the grist to the lawyers, who really would find the law but an unprofitable profession, if it were not for such considerate persons as Monsieur Girard, at whose expense he hoped to dine that day at least.  After consulting a few minutes, the Assessors found a Verdict for the Plaintiff, and assessed the damages at One Farthing.  (Each party pay their own costs.)

Published by the Division of Law, Macquarie University