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

McDowall v. Middleton [1827] NSWSupC 76

assault, false imprisonment, passenger on ship, ship, discipline on - convict ship

Supreme Court of New South Wales

Stephen J., 21 December 1827

Source: Sydney Gazette, 26 December 1827

This was an action for assault and false imprisonment.  The defendant pleaded the general issue, and a justification.  The damages were laid at £500.

Doctor Wardell stated the case.  The plaintiff was a surgeon in the army, came out to this Colony from England, some time since as surgeon Superintendent of the female convict ship Harmony, of which the defendant was m[a]ster and Commander.  The vessel had not been long at sea before a misunderstanding arose between the plaintiff and defendant, in consequence of the latter's improper interference with the prisoners, together with the countenance afforded by him to the crew in the like proceedings, contrary to the express instruct[i]ons to the defendant himself from the Admiralty board, as well as to those of the plaintiff, who tried every means in his power to prevent such conduct but without effect.  An unpleasant feeling having arisen in this way, against the p[l]aintiff, in the mind of the defendant, an opportunity was not long wan[t]ing to manifest the desire to annoy.  Shortly after the vessel had been at sea, and after the plaintiff had taken possession of his birth, a particular water closet, only divided from his cabin by a thin partition, put up in so careless a manner as to admit both light and sound into the cabin, was appropria[t]ed to the exclusive use of the plaintiff.  The defendant, however, on the 14th of July, sent an insulting message to the plaintiff, requiring him to deliver up the key of this convenience, in order that it might be appropriated to the use of part of colonel Morisset's family, that gentleman being a passenger on board.  The plaintiff thought proper to dispute the right of the defendant to make any appropriation of what was understood to be set apart for his accommodation, and refused to comply, in consequence of which the defendant immediately directed the carpenter to knock off the lock.  The carpenter, accordingly, proceeded to comply with the orders he had received, and the plaintiff, in the protection of what he considered his own apartment for the time being, was in the act of restraining him, when he was knocked down by the defendant.  This was the first assault complained of.  The second assault took place on the 19th of August, and arose out of the circumstances of the plaintiff having occasion to remonstrate with some of the sailors for interfering with the prisoners, the defendant, who overheard what was said, called one of the men aft and told him he was to take no notice of the plaintiff, and upon the latter expostulating, called to the crew by whom he was dragged off the quarter deck, and confined to his cabin, being refused permission to take his meals at the cuddy table.  The defendant also threatened to put the pla[i]ntiff in irons; and the boatswain, in the defendant's presence, told the plaintiff that, if the crew were all of his mind, they would throw him overboard.

Two witnesses were called in support of the plaintiff's case, whose testimony, however, went no farther than that they saw the defendant on two oc[c]asions collar the plaintiff, but they could not state any thing as to the origin of the dispute.

Mr. Wentworth addressed the Court for the defendant.  The learned Gentleman was sure His Honor and the Assessors would have already arrived at the conclusion that a more trumpery case was never brought before a Court of Justice; and it was a matter of astonishment to him how the learned Gentleman (Mr. Williams) could have thought it possible that any two indifferent persons would ever award one farthing on such a pitiful business.  He could o[n]ly account for such a case being at all brought into Court, from the fact of the plaintiff being determined, at all hazards, to go to law, and that Mr. Williams thought he might as well perform an act of ministerial duty as another.  If he did not do it some one else might, and it was on that grou[n]d only that he (Mr. Wentworth) could exonerate Mr. Williams from that suspicion which he certainly should otherwise entertain of the soundness of his legal intellect.

Mr. Wentworth proceeded to detail a variety of circumstances to shew an assumption of undue authority exercised by the plaintiff from the very first hour of his embarkation, which the d[e]fendant, for the sake of maintaining his own authority, as well as the proper discipline on board, was obliged to take measures to repress.  Witnesses were brought forward who proved, that the measures the d[e]fendant found himself obliged to resort to, arose out of the absolutely mutinous and abusive conduct of the plaintiff; and that in all the disputes which took place, the defendant behaved with the utmost coolness, whilst the conduct of the plaintiff was marked by the utmost degree of violence.

The learned Judge summed up the evidence, and the Jury found a verdict for the defendant, with an intimation that they were satisfied no improper conduct had been exercised, either by him or his officers, towards the prisoners on board.

Published by the Division of Law, Macquarie University