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

Hayes v Hely [1830] NSWSupC 17

magistrate, action against, supervision of inferior courts, convict service, withdrawal of, trial by jury, press freedom, law reporting

Supreme Court of New South Wales

Forbes C.J., 16 March 1830

Source: Australian, 17 March 1830[1 ]




SUPREME COURT.  [Yesterday.]

Hayes v. Hely.

This case came on for adjudication at ten A. M. Yesterday, before Mr. Chief Justice Forbes, and the following Special Jury, viz.

Mr.D. Maziere, foreman  Mr.Samuel Terry

James Simmons P. H. Rapsey

H. Cohen John Rickards

John Maclaren John Taylor

James Chisholm Henry Marr

John Hosking T. G. Pitman.

Counsel for the plaintiff, Mr. W. C. Wentworth - Solicitor, Mr. Keith.

Counsel for the defendant, Dr. Wardell, and Messrs. Therry and Foster - Crown Solicitor, Mr. W. H. Moore.  Damages 700l.

Before swearing in the panel, Mr. Keith said, at the request of the plaintiff, who wished to avoid even the semblance of partiality, he desired that one of the gentlemen included as a Juror might be excused attending in that capacity, as he happened to be connected by a marriage of his daughter in law, with the plaintiff.  This was subsequently agreed to by the other side, and the Jury composed as above.

Mr. Keith opened the pleadings, by reading the declaration, which contained eight counts, and

Mr. W. C. Wentworth stated the case to the Judge and gentlemen of the Jury.  This was an action of trespass brought by the plaintiff, Mr. A. E. Hayes, as Editor, Publisher, and Proprietor of the Newspaper, The Australian, against Mr. F. A. Hely, Principal Superintendent of Convicts, for causing to be taken, or taking away illegally, and by force, from the service of the plaintiff, in the month of March, 1829, two assigned servants, named respectively Edward Ledsham and Joseph Monks, to which defendant pleaded the general issue, damages being laid at the very moderate sum of 700l.[2 ]  Now (he, the learned Counsel) would at this stage of the business put it to the Jury, that had defendant justificatory reasons for his conduct, he should have pleaded a justification on the record.  Not having done so, but having pleaded the general issue, he therefore was precluded from bringing evidence to justify, and it was to be presumed, that could he justify, he would not have depended on the general issue, though no authority, even should such be attempted to be strewn, could vest in him a power contrary to the law.  This was a novel, he would say an unprecedented case.  It concerned some of the most essential interests of the community; for it involved the right of property in assignees of crown prisoners - a right, the essential necessity of defining and fixing which, came home not alone to the plaintiff, but to the bosom of every man in the Colony.  The plaintiff in this case derived his right to the two men, for unlawfully and forcibly capturing whom the plaintiff now brought his action, by a transfer from the original assignee.  This transfer was made in pursuance of an Act of Mr. Peel's, 5 Geo. 4, c. 84, sec. 8, which vested the property of the prisoner exclusively in the assignee, who could convey such property to any one he might choose, and that one to another, and so on ad infinitum.  A recent Act of Parliament superseded this statute, however, by giving the Governor a power to revoke the assignment of a deserving prisoner for his benefit (but he, the learned Counsel,) would be able to prove, on incontestible evidence, that the trespass and outrage now complained of were perpetrated without color of any law whatever, inasmuch as the plaintiff had the services of those men (Ledsham and Monks) transferred to him even full nine months before this recent Act came into existence!  The facts of the case were simply these.  Plaintiff being one of the purchasers among several others of The Australian Newspaper, from Dr. Robert Wardell, became the Editor and sole managing Proprietor of that Journal, from July 1st, 1828.  The man Ledsham, a reporter, and Monks, a compositor, were, with the other property, transferred to the plaintiff and others with that paper, as property belonging to the establishment.  In November, 1828, defendant became sole proprietor of The Australian, the former proprietors selling their shares, right, title, and interest therein, for certain valuable considerations to the plaintiff.  But now, the Australian being written with force and candor, did not please all parties, and to this feeling he would be able to trace what followed.  On the 7th March, 1829, plaintiff received a letter from defendant's office, signed "J. Macalister, for the Principal Superintendent of Convicts," stating that he had instructions from a certain high authority to request that the plaintiff would cause the two men named in the margin, Edward Ledsham and Joseph Monks, to attend at "the office" on a certain day, the following Monday at noon.  This device - this attempt at kidnapping he would call it, for it was nothing better, failed.  The plaintiff did not send his men idling after what they had no business to be engaged in, and away from their work.  But on the following Tuesday, whilst Ledsham was sitting peaceably and soberly, employed in taking notes of a trial then pending before his Honor, the learned Judge upon the Bench, a constable named Lackey, who the learned Counsel would prove was and is under the immediate control of the defendant, poked out a stick or bludgeon, and digged it into the reporters side, who first affecting not to take notice of the digger, till roused by a perseverance, and his ribs perhaps feeling the pressure of the bludgeon, so as to turn them black and blue, at length said - he was busy, and could not go.  Mr. Lackey repeated his diggings so assiduously, and with so much force and effect, that at length Ledsham with this powerful Cerberus, quitted the Court, invoking a witness or two to prove how he was treated!  and one witness, Mr. Arthur Hill, would be able to state that he saw Lackey convey away his capture to the Hyde Park Barracks, where what became of Ledsham afterwards, or how he was treated, deponent could not say.  And this outrage was perpetrated not in the open street - not whilst the miserable subject of it may have been misconducting himself in any way - but whilst peaceably, honestly, and usefully engaged upon his employer's business - under the very eyes of a Judge and of a crowded Court ! !!  But he would not rouse and direct the indignation of the Jury to this outrage alone.  He would now explain what took place subsequently to the extraordinary incidents just stated.  A letter is addressed to the Editor of The Australian, the plaintiff, signed in the proper hand writing of the defendant, and threatening that if plaintiff would not surrender Joseph Monks, then in his service, he should be prosecuted for harbouring a prisoner illegally at large.  Plaintiff, conscious of the rectitude of his cause, took no notice of this official also.  But on the 17th March, between eight and nine o'clock at night, a strange fellow, this very Lackey, breaks into the sanctuary of the plaintiff, enters his very house, lays hold upon Joseph Monks, and contrary to the urgent remonstrances of plaintiff - without warrant - without any legal authority whatever - forces away the man Monks from his master's house, under cover of the night, conveys him to the Barracks, and consigns him thence, God knows where! for the plaintiff could not prove what had become of the man after !!  Was such outrage to be suffered with impunity?  No!  He trusted the verdict of an English Jury would that day strike a terror into the hearts of all offenders disposed to countenance, or be an agent, as the defendant would be proved to be in similar outrages.  But he would not work upon the feelings of the Jury.  He had simply stated the naked facts of the case, and in mercy to the defendant, in mercy to all persons similarly circumstanced, in mercy to the Public, lest the one should be tempted to transgress again, and the other suffer as the defendant had to a like extent - for these irresistible reasons, he would call upon the Jury for a verdict to the utmost extent of damages, as a salutary lesson to all future defendants, or persons disposed to be defendants in similar cases.

The Learned Gentleman then proceeded to call witnesses in proof of declaration and his statement of the case.

At the proving by Mr. Clark, Mr. Keith's Clerk, of the service of a notice to the defendant to produce all letters, papers, orders of assignment, &c. connected with this case, a long argument followed, as a copy of the notice produced had been only served on Mr. Moore, the defendant's Attorney, the evening previously, one which had been served in the morning being irregular; but the learned Judge was of opinion that as the first notice contained more than the last, and was sufficient to the purpose, it should hold good.

Mr. Wentworth then proceeded to call

Doctor Wardell, who proved the transfer by himself as the original assignee of Ledsham and Monks, under Mr. Peel's Act - such transfer being dated 1st July, 1828.

Mr. George Paul proved in common with others the transfer of his right, titled, and interest in The Australian, on the 28th November, 1828, to the plaintiff; which was confirmed by Mr. P. H. Rapsey, who added, that in selling his share, for a valuable consideration, he considered he was transferring the whole of his interest, men and all.

Witnesses were then called as follows:

Mr. James McAlister - I am Chief Clerk in the Office of the Principal Superintendent of Convicts (letter produced) - this is my handwriting - I wrote this letter in consequence of one coming from the Colonial Sec.'s Office - I am authorized to do so in defendant's absence - when he returned he saw the copy in the letterbook - I think he said I had better not have written it - he did not order me to recal [sic] it (letter read, dated March 7, 1829, requesting Monks and Ledsham to be at the Office on the afternoon of that day - another letter produced) - that is Mr. H.'s signature - date is March 17, 1829 - states that the Government had revoked the assignment of Monks - I believe Mr. Hayes to have been the Editor at the time - I don't know what became of the men after these letters  it does not come to my knowledge that they were brought to the Barracks - I saw them there - I know a man named Lackey - he was officer-keeper or constable - he was so then - I think he might have been employed to apprehend men - I am positive I did not see him bring either of he men to the barracks - I know Ledsham - I did not know the other man - Ledsham was sent afterwards to Bathurst - he was sent in the usual way, by order of Mr. Hely - I think they were both sent.

Crossexamined by Doctor Wardell - Ledsham holds a ticketofleave, granted for Bathurst district, while there - this letter was written by command of the Governor - the distribution of prisoners, I conceive, is by order of the Governor - I should think a man would not be sent from Sydney to Bathurst without the order of the Governor - Mr Hely said I had better not have written the letter - Ledsham holds a ticketofleave.

Re-examined - He obtained his ticket in the usual way, by applying to the Bench of Magistrates at Bathurst, about six months after he went down there.

By the Jury - A man holding a ticketofleave for Bathurst has no right in Sydney - I believe Ledsham has leave to reside six months in Sydney.

Mr. John Weston - I am Superintendent of Hyde Park Barracks - I knew a man named Ledsham and Monks - I received Ledsham March 16, 1829, and Monks March 27, 1829 - I received them in he usual way - I did not receive them from Wm. Lackey - I am not aware that Mr. Hely gave any orders to Lackey, nor do I remember Mr. Hely telling me he had given any orders - there is no book in the Barracks in which the name of a person delivering is entered - Ledsham was discharged from the barracks on the 8th April, and Monks on the same day, to Wellington Valley - they were forwarded to Parramatta - I received my instructions from Mr. Hely - it is Lackey's business to take up persons illegally at large - he acts under the orders of Mr. Hely.

Cross examined - I have one office and Mr. Hely another - the departments are quite distinct - all I know is, that I received and discharged these men in the ordinary way.

Mr. Arthur Hill - I know a man named Ledsham - I saw him in the Supreme Court when he was touched with a stick by a man named Lackey - Lackey touched him three times, and Ledsham went out, when Lackey took him, as I supposed, to the Prisoners Barracks - I conceive he was taking notes for the Editor of The Australian.

Cross-examined - I saw no violence used - Ledsham said he could not go - he was taking notes.

By the Court - When I said the Editor of The Australian, I meant Mr. Hayes.

Mrs. Catherine Elliot.  I was in Mr. Hayes's service in 1829; I know a man named Joseph Monks; he worked in Mr. Hayes's printing office; I know a man named Edward Ledsham; I cannot say he was in Mr. H.'s employ on the 17th March; I remember a man named Lackey taking Monks away; I believe I called Mr. Hayes down stairs; I cannot say that Monks refused to go; he was taken from the kitchen; Mr. Hayes remonstrated with Lackey; Mr. H. objected to Lackey taking him away; Lackey said he would take him; I did not see him collar Monks; I heard Mr. H. ask Lackey by what authority he took him, and he said he had authority.

Mr. John Cubitt.  I am a printer in the employ of Mr. Hayes, the Editor of The Australian; I was in his employ in March last; I know Monks and Ledsham; they were servants to Mr. H. - Ledsham was reporter, and Monks a compositor; they were in the employ of Mr. H. from the time he became Editor till they were taken away; Mr. H. had to employ another man in his room; he then paid ordinary compositors 21. currency, now 21. sterling per week; I cannot say the paper was delayed, as he employed a free man; I think Monks and Ledsham were more than 12 months in Mr. Hayes's employ.

Cross examined by Dr. Wardell.  Monks's occupation was that of a compositor; I cannot say that he used to perform domestic offices; Monks used to figure on the tread mill when in your employ; I don't think he had altered; I heard Ledsham say he had six dollars a week.

By the Jury.  When Monks was sober he used to do the work assigned him.

Reexamined. Plaintiff used to give Monks five dollars a week, and he pays the free men 21. stg.

Mr. John Clarke.  I live in Georgestreet; I was called upon about twelve months ago to witness a servant of Mr. Hayes's, named Monks, being taken away; he was taken away, notwithstanding Mr. H. said it was against his wish.

At the close of the evidence for the plaintiff Dr Wardell rose and contended for a nonsuit, on the ground that the plaintiff had not proved his case, inasmuch as he had not strewn that the property in the two assigned servants, Ledsham and Monks, was formally transferred to him by all the assignees jointly and severally in writing, and therefore that the action should have been brought for self and partners, not for the plaintiff singly; though he had become sole proprietor of the Australian afterwards.  But this objection the learned Judge decidedly overruling, Dr. Wardell addressed the Jury on the implication that defendant had not acted in any way maliciously, but as a ministerial officer, considering he was only executing his duty in capturing two men whom he knew to be prisoners of the Crown, but who he was not obliged to know were plaintiff's assigned servants, inasmuch as plaintiff had never given any notice to the defendant of their transfer to him.  He hoped therefore that the Jury, if they saw cause to give damages at all, would give the smallest possible damages, as there was not proved to be any malice on defendant's part in the case.  Plaintiff suffered no considerable loss from his assigned servants being forcibly taken from him, how was a master to ask for pecuniary remuneration for a blow given to his servant, though he might for the consequent loss of services?  and the Learned Counsel dwelt especially on the fact of defendant being a passive instrument of effecting a wrong in the hands of others.

Defendant's counsel not desiring to call witnesses in support of the allegations set forth,

Mr. Chief Justice Forbes addressed the Jury[3 ] in a most clear and elaborate way, putting it to them that thought the plaintiff had not traced a chain of derivative proof from the original assignment of Ledsham and Monks; yet there was presumptive evidence to confirm the plaintiff's claim to their services from the original assignment, and indeed he knew the plaintiff was proprietor of the Australian, without evidence being adduced to shew it.  The learned Judge would not enter upon the question of assignment, the law in that respect being settled already and thought the opinion was drawn from the Court indirectly, yet he thought it was a good thing for the Colony that rights of such vitality should be put beyond dispute.  He would only refer to such parts of the evidence as bore immediately upon his view of the case, and after viewing it in various masterly lights, the learned Judge went on to lay it down as the questions for them to decide - whether or no Lackey had committed the trespass alleged, of which there was direct and conclusive evidence - & if so, did Lackey act under the defendant's authority.  Was the defendant identified with the acts of Lackey, and if so, being a ministerial officer, what damages ought the Jury to give, with a view to justice, and the plaintiff's losses, owing to the abduction of his assigned servants.  Much stress had been laid on the circumstance of Ledsham being lately given a ticket of leave, and therefore that the revocation by the Governor of his assignment was proper; but the Act of Parliament does not give the Governor the power of revoking an assignment abruptly, without notice or a view to the immediate benefit of a deserving prisoner.  Now here six months and upwards had been allowed to pass over, during which Ledsham was dispatched, it appeared, to Wellington Valley, his Honor might call that a penal settlement, and he could not hold that the revocation, were it legal, the assignment being under the stat. and before Act 9, Geo. IV., c. 96, came into existence, was proper and valid.  In conclusion, the learned Judge begged the Jury would dismiss from their minds any preconceived prejudices imbibed out of doors, and view the case with a calm, deliberate eye, regulating their verdict between a due regard to the just rights of the plaintiff, and a consideration of the delicate situation of the defendant, being a ministerial officer, and in some measure bound to obey the commands of his superior.

After about 20 minute absence, the Jury returned into Court, with a VERDICT for the PLAINTIFF, DAMAGES, 50l., and COSTS.[4 ]



[1 ] This case was sparked by the governor's decision to withdraw convict labour from the newspapers which criticised him, the Monitor and the Australian.  See also Sydney Gazette, 20 March 1830.  For the appeal in this case, see Hall v. Hely, 1830. For historical analysis, see C.H. Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, ch. 31, 35; and see R.B. Walker, The Newspaper Press in New South Wales, 1803-1920, Sydney University Press, Sydney, 1976, pp 16-17.

Governor Darling reported this to Murray on 12 April 1830: Historical Records of Australia, Series 1, Vol. 15, p. 418; the cost to the government of its decision to withdraw the convict servants from the proprietors of the Australian and the Monitor was almost £600.

Sir George Murray told Governor Darling in a despatch dated 3 May 1830, that it was quite wrong of him to withdraw convict servants from the newspaper proprietors, merely because they criticised the government.  The power of withdrawal was not intended to be for political purposes.  The principal if not exclusive consideration in such cases was the benefit of the convict; the aim of the power was to withdraw convicts from masters who abused them.  Murray required Darling to refer all such cases in future to the Executive Council for advice.  Source: Historical Records of Australia, Series 1, Vol. 15, pp 463-464.  Murray wrote to Darling again on 8 November 1830, in response to Darling's despatch of 12 April 1830 (pp 810-812).  He said that he approved of the government paying the costs and indemnifying the public officials against the damages awarded in these cases.  He queried the legal costs however, before reiterating his criticism of Darling's decision to withdraw the convict servants from the newspaper proprietors.  He told him that convicts were to be removed only if masters were too severe or too indulgent.

[2 ] See In re Hayes, 1829; and In re Tyler, 1829, for the background to these events.  See also Hall v. Hely, 1830; Hall v. Rossi, 1830.

[3 ] The Sydney Gazette, 20 March 1830, reported the charge of Forbes C.J. to the jury as follows:

"The Chief Justice. - Gentlemen of the Jury - This is an action of trespass brought by the plaintiff, Atwell Edwin Hayes, against the defendant, Frederick Augustus Hely, Esq. founded upon a complaint of the defendant having improperly taken away two assigned servants of the plaintiff from his service and detaining them in the prisoners' barracks, to the great detriment and injury of the plaintiff.  The damages are, I presume nominally, laid at £700.  The declaration contains a great number of counts.  The first counts recite the assignment of the prisoners from the Governor to an assignee, and through several intermediate assignments, to the present plaintiff; but in consequence of not being able to establish the chain of proof which would support this part of the case; that portion of the declaration has been abandoned, and the case is resolved into one of ordinary trespass, in which the plaintiff complains of damage by forcibly taking and detaining two persons, his servants.  It is not necessary for me to advert to the forms of assignment from the government (if such forms be necessary), according to the Act of Parliament, as all the counts touching the assignment have been abandoned; and I shall therefore take up the case at that part where the evidence goes to show, that two persons named Joseph Monks and Edward Ledsham, in the service of the plaintiff, and in the performance of his commands, were forcibly taken - the one from the residence of the plaintiff, and the other out of this Court; where he was employed taking minutes of its proceedings, in the capacity of a reporter.

"[The learned Judge here read his notes of the evidence.]

"Gentlemen, the question is, upon this evidence, whether the constable, Lacky, acted under the orders of the defendant; because, if he acted out of those commands, the defendant cannot beheld answerable for the trespass of another.  The evidence that he did so act under the command of the defendant, is the evidence of circumstances.  It put to you as presumptive proof - as facts put together which would lead you to conclude that Lacky acted by the orders of the defendant.  Gentlemen, the first proof of this nature laid before you are two letters, the first of which is a letter of James McAlister, who says he is chief clerk in the office of the defendant, and acts under his orders.  He further goes on to state, that, in consequence of a certain letter from the Government, though the colonial Secretary, that he, of his own accord, without any command or sanction from his principal, and in his absence, addressed a letter to the plaintiff, requesting that the men might be sent to the barracks.  He further states, though he had no direction to write this particular letter, that he was used to write such letters in the way of business, and that, on the return of the defendant he expressed regret that such a letter had been written - that in fact he did not assent to it - but gave no direction to recal it.  On the 11th of March, 1829, another letter was addressed to the plaintiff by the defendant himself, cautioning him against harbouring these men, as the Governor had revoked their assignment; and, upon this evidence it is sought to be impressed on you, that the witness, McAlister, wrote the first letter on behalf of the defendant - that it was in a certain degree, his act - and adopted by him in the second letter under his own hand.  Gentlemen, looking at the text and purport of these two letters, your attention is then called to the fact of the two persons alluded to therein, namely, Joseph Monks, and Edward Ledsham, being taken by force, in the manner stated by the witnesses, and conveyed to the barracks, where they were received by the orders of the defendant, and disposed of by him; and further, that the person who performed these acts, was one Lacky who acted as constable, under the orders of the defendant.  Gentlemen, the letters are before you, and they speak for themselves.  It is for you to say whether, coupled with the other circumstances, you can arrive at that conclusion upon them which is pressed upon you.  Now, the witness, Weston, says, that Ledsham was received at the barracks on the 10th of March, 1829, and Monks on the 17th, of the same month, but he cannot say by whom they were brought in.  Gentlemen, then, it is for you, as a matter of proof, to say, whether, from the evidence, you can identify the acts of Lacky, who appears, by the testimony of other witnesses, to have been the principal agent in this trespass, with the defendant.  The evidence in support of this position is that of the two letters to which I have referred, taken in connexion with the fact, that shortly after the prisoners were conveyed to the barracks by a constable under the orders of the defendant, and that they were there received by his direction, and subsequently disposed of him.  Gentlemen, can you arrive at the conclusion that the acts of the constable, Lacky, were done with the knowledge, or under the orders of the defendant?  That is the question; because, if you should think they were directed by him, the acts of Lacky were the facts of the defendant, and he is liable for the consequences of them.  Gentlemen, I offer no opinion upon the force of the evidence; I only say that it is sufficient to support such a conclusion if you should draw it.  Gentlemen, allusion has been made to the operation of the Act of Parliament, whereby the Governor is authorised to revoke assignments for the purpose of granting temporary or partial remissions of sentence, but I do not consider that this is the case, from the state of proof before the Court, in which it is necessary for me to go into that subject.  With respect to the power of revocation, that question has been already decided by the Court; but the length of time which elapsed previous to the bestowment of that partial remission of sentence which one of the prisoners is proved to have since obtained, goes to negative the presumption that such was the purpose of the revocation.  I therefore do not think that any question has been raised to warrant me in the consideration of this case as no trespass under the operation of law.  Gentlemen, if you should be of opinion that the acts of Lackey were infact the acts of the defendant, then comes the question of damages.  Among the very serious embarrassments under which public officers in the country labour, are the variety of undefined and country labour, are the variety of undefined and conflicting duties with which they are encumbered.  True, the law provides that an individual who inflicts an injury on person or property in the execution of an unlawful command, shall be held liable for his act; but, gentlemen, it should also be borne in mind, how much the security of person and property in this Colony depends upon the vigilance of the Superintendent of Convicts.  He is often under the necessity of exercising a very delicate duty.  The mere peaceable possession of a prisoner constitutes no legal right to retain him; and when a reasonable suspicion exists that a prisoner is unlawfully at large, and the Superintendent of Convicts were to be exposed to the consequences of an action if he acted under an erroneous impression, you will easily perceive the increased difficulty with which the performance of his duties would be surrounded.  In this case, there is no proof of any malice, in the proceedings, supposing you should be satisfied that these men were forcibly taken by the command of the defendant; and, in the absence of all evidence of malice, every public officer is entitled to the presumption that he acted conscientiously till the contrary be shown.  Now, there is here no surmise of malice, and the only question is, what damage the plaintiff has really sustained.  No doubt he experienced some inconvenience by the taking away of his servant; but you are also to consider whether the defendant might not have acted conscientiously - one man receiving an injury, and the other, from whom the injury was received acting under the impression of performing his duty.  Gentlemen, the case is now in your hands."

[4 ] On costs in this case, see Forbes C.J. to Governor Darling, 22 October 1830, Chief Justices' Letter Book, 1824-1835, Archives Office of New South Wales, 4/6651, p. 271; and W.H. Moore to Colonial Secretary, 17 February 1831, Forbes Papers, Mitchell Library, A 746.

On the appeal in this case, see Hall v. Hely, 1830; and on the taxing of the costs, see Historical Records of Australia, Vol. 16, pp 91-95; Hall v. Hely, 1831; and see Sydney Herald, 7 November 1831.

Published by the Division of Law, Macquarie University