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

R v McIntyre [1833] NSWSupC 86

perjury - informations - criminal procedure - magistrate, prosecution of - costs, legal, sufficiency of

Supreme Court of New South Wales

 

Forbes C.J., in banco, April 1833[1 ]

Source: Sydney Herald, 8 April 1833

Exparte - Hamilton Collins Sempill, Esq., J.P. v. Peter McIntyre , Esq., J. P. - On Saturday week last, a rule Nisi had been obtained on the affidavits of the plaintiff, against the defendant, calling upon him to show cause why a Criminal Information should not be filed against him for perjury.

Dr. Wardell and Mr. Wentworth now appeared to oppose the making of the rule absolute, and Mr. Therry, on the part of Mr. Sempill, addressed the Court in support of the information.  On the conclusion of the speeches of Counsel on both side.

The Chief Justice delivered the opinion of the Court.  This was an application for a Criminal Information against Peter McIntyre, Esq., for wilful and corrupt perjury.  As to the objection taken to the affidavits in support of the rule, as not being full and sufficient as required by the rules and practice of England, he was of opinion, on mature consideration, that they were formerly sufficient to make the rule absolute, if there was sufficient in other parts of the case to call upon them so to do.  On looking at the affidavits there appeared a great deal of hard swearing; if defendant came in and explained away the allegations it would have been satisfactory, but one set of witnesses coming in and swearing directly in the teeth of the other, it was necessary for the character of the accused, as well for the clearing up of the case, that it should be sent to a Jury to try, to which the greater credit is due.  He wished it to be distinctly understood that in doing so they did not give the most distant opinion on one side or the other as to the merits of the affidavits, but, from the conflicting testimony, they must send it to the only tribunal who could decide on the merits.[2 ]

 

Burton J., 12 and 13 August 1833

Source: Sydney Gazette, 15 August 1833[ 3]

 

MONDAY, AUGUST 12.

(Before Mr. Justice Burton.)

The King at the prosecution of Sempill v. M'Intyre.

Peter M'Intyre, Esq. J. P. was placed at the bar, charged with wilful and corrupt perjury.

Mr. Therry stated the case for the prosecution.  The information, he said, charged the defendant, Peter M'Intyre, with the most odious crime of perjury.  It charged this crime against a Magistrate of the colony, - a man possessing high connexions both here and at home - and a man hitherto enjoying an unblemished reputation.  To a person of his rank in life, the present was a case of vital importance, because upon the result his consideration in the scale of society wholly depended.  He, Mr. Therry, approached the case with the greatest reluctance, and assured both the Jury and the defendant, that he would not willingly deviate from the strict line of professional duty in submitting the case to their attention.  He described the high importance of an oath, and said, that it appeared to him as if the Legislature intended, by the numerous technicalities which must be observed before a coviction [sic] could be obtained, rather to protect, than to punish a perjurer.  These difficulties did not however appear formidable in the present instance, for this was a plain case.  He proceeded to detail the several counts in the information, and explained that the Jury were to try, 1st, whether certain bullocks were the property of Mr. M'Queen or Mr. Peter M'Intyre?  2nd, Whether or not they were purchased by Mr. M'Intyre on his arrival in the colony for Mr. M'Queen or himself?  3rd, Whether they were branded with Mr. M'Queen's brand? and 4th, whether if so, they were branded by Mr. M'Intyre's directions, or with his knowledge?  Mr. Therry stated that the defendant was the agent of Potter M'Queen, Esq. and managed the estate of Segenhoe from 1825 to 1830, when he was superseded in that duty by the prosecutor, Mr. Sempill.  He, the present agent, found the property actually embarrassed, after an an [sic] outlay of 20 or £30,000.  Amongst other actions which he felt it his duty to institute, there was one against Donald M'Intyre, the brother of the defendant.  It was one of assumpsit, to recover the value of property furnished to him from the Segenhoe store, which action included the 9 bullocks he had enumerated.  Their value was fixed at £132 10s.  On the trial of this case it was clearly shewn that they had been purchased for Mr. M'Queen, and the first cattle bought on his account after Mr. Peter M'Intyre arrived in the colony.  If it had been shewn that the bullocks were Mr. M'Queen's, the defendant in that case would not have procured a verdict.  The motive which Mr. Peter M'Intyre had to commit perjury as a witness in that case, was therefore, to procure a favourable result for his brother.  On being placed in the witness-box, he was asked whose property the bullocks were, and he claimed them as his own.  He was then asked if they were branded with the brand of Mr. M'Queen, and he answered no; but recollecting himself, he added, if they were so branded it was without his authority.  Thus the plaintiff was thrown out of Court.  He (Mr. Therry) would now be able to satisfy the Jury that they never have been his property - that they were branded with his brand, and by his express order.  If he could establish these facts a conviction must ensue.  Mr. Therry went over the books of the estate, and traced sundry entries of the purchase and payment of bullocks for Mr. M'Queen, which included those noticed in the bill of particulars on the trial of the case of M'Queen v. M'Intyre, and with respect to which the present charge of perjury is alleged to have been committed.  Some letters (afterward detailed in evidence) were also read, with the view of shewing that the bullocks, at the time those letters were written to England could not have been the property of Mr. M'Intyre, as he writes that no such animals had been purchased on his own account.

M. Therry concluded his speech by cautioning the jury against entertaining a partial view of the case, from regard to the previous high character and rank in society of the present defendant.

The first witness called for the prosecution was -

John Gurner, Esq., chief clerk of the Supreme Court, who produced the record of an action, M Queen v. M'Intyre; it was an action tried before the Chief Justice, Mr. Manning and Mr. Ross Assessors, on the 18th September, 1832.  Verdict for the defendant.  It came on for trial according to the usual practice of Court.  He knew the Christian name of Mr. Manning to be John Edye, and Mr. Ross's, Adolphus James.  The plea in that case made a set-off for £1000.  Plaintiff's damages were laid at £100.

James Norton, Esq. - Recollects the case M'Queen v. M'Intyre was tried on 18th September, 1832; Mr. Peter M'Intyre was examined as a witness for Donald M'Intyre; was present at the trial, and acted as attorney for plaintiff.  Evidence was given by the present defendant about working bullocks; believes he was sworn; he gave evidence; has no doubt he was sworn; could not trace the bullocks from his notes, for he kept none.

Dr. Wardell objected to this line of examination, but was overruled.

Mr. Norton, referring to some papers, said the action was brought to recover certain bullocks named Red Dragon, Jolly, Stumpy, Major. Redmond, Dragon, Brandy, Captain, and Farmer ; the particulars of the action was furnished to defendant's attorney (Doctor Wardell) by witness; he received these from Mr. Sempill; they were furnished from a book held by Mr. Sempill, who gave them to witness; according to witness's recollection, was, that Mr. Peter M'Intyre was called on behalf of his brother; he stated that the bullocks were his, and that he, Mr. Peter M'Intyre, had given them to his brother; that they were bought by him, and that they were not branded with Mr. M'Queen's brand; on being pressed, he stated his disbelief of their being so branded, and his conviction that they were not so branded; and, on being much pressed, he said it was (if so branded) owing to an error in the persons who branded them; could not possibly say to whom he alluded, but believes it was to his servants; he mentioned no date when he [sic] bullocks were bought; this evidence came out in the course of a long cross-examination, and this is the amount of it; the action was brought to recover certain working bullocks, said to have been sold for Mr. M'Queen to Mr. Donald M'Intyre.

Cross-examined by Dr. Wardell for defendant - There was a great deal more stated on the trial than now mentioned; Mr. M'Intyre has waited on me several times, to ask me what I recollected of the trial; I said if you will take the trouble of noticing any point, I will tell you what I remember; I told him in general terms he had stated these bullocks were his; he came evidently for the purpose of borrowing my brief; I recollect saying something about branding, and he entered into an explanation: namely, that part of the bullocks had been really Mr. M'Queen's, but they had come into his possession in consequence of some of his being drowned in Mr. M'Queen's service; I place very great reliance upon my presont [sic] testimony but am not certain whether the observation came out on the first or second trial of the case, M'Queen v. M'Intyre; the only evidence offered on the trial of the case was Mr. Sempill's coachman, that these animals were Mr. M'Queen's, and had been delivered to Donald M'Intyre, but there was no evidence of a contract.

By Mr. Rowe. - Mr. Peter M'Intyre on the trial stated, he had purchased a number of working cattle, which induce me to make the observation, "you have commenced your farming operations very early then."

H. C. Sempill, Esq. agent for Mr. M'Queen, being sworn - Succeeded present defendant in June 1830.  I instructed Mr. Norton to bring an action against Donald M'Intyre, which was tried in September last.  I furnished particulars of a bill of demand.  The book now produced, is a copy of the account served on Donald M'Intyre; and it is a copy besides of the account given to Mr. Norton.  I know it is a copy, for I demanded it.  Was present at the trial.  Saw the particulars of demand, which contains if the book was shewn to Mr. P. M'Intyre.  Thinks Mr. M'Intyre was in court; he was asked what he knew of the bullocks spoken of by the witness Reeves; he said they were his own property, and bought on his own account when he arrived in the colony; I whispered Mr. Norton to ask if they were branded with Mr. M'Queen's brand, which he did; Mr. M'Intyre replied they were not; after some hesitation, he said, if they were so branded it was without his knowledge; Mr. Norton said he did not know he commenced buying bullocks so early; he said he had not broken up any of his own land; these questions and answers were made with reference to the 9 bullocks read over to Reeves, alluded to in the account produced; knows Mr. M'Intyre's handwriting; the cash book does not appear to be written by him; in this appears an entry, "By cattle account paid Chillot, 4 working bullocks £70."  This is a charge against Mr. M'Queen, dated the 20th of October 1825.  The ledger produced was received from Mr. Browne and Mr. Sparke, and contains, - "20th of October 1825, paid Cillott's order on Jones and Co. £70, for bullocks."  The balance sheet signed by Mr. M'Intyre was received from Mr. M'Queen of London.  The total sum in this sheet for cattle includes the £70.  The extract from the book produced contains an entry. - "October 25th, 1825, paid Chilcott order on Jones and Walker, four working bullocks, £70;" and was also received from Mr. M'Queen.  The account for monies expended on Segenhoe estate, to the 31st of March 1826, produced, shews an entry, "October 25, 1825, paid order on Jones and Walker for £70;"and also, "1825, August 25, paid Mr. R. Cooper, for three working bullocks and bull, £51 5s.;" and on "2nd of September, 1825, E. Lane, for four working bullocks, £47."

In this book of monies expended, is a memo. of sums paid but vouchers wanting, among which, Chilcott's is one; a voucher for the bullocks from Cooper was produced, containing particulars of 3 bullocks and one bull purchased by Mr. M'Intyre, dated 15th August, 1825; another receipt from Lane for £47 was produced, and was paid in dollars in Sydney.  Witness produced a letter from defendant to Mr. M'Queen, dated 16th Sept. 1826, wherein it is stated, - "you will also observe by my accounts that I have not used of the purchase of stock, any part of your money; the whole stock I have bought for myself since my arrival in the colony, is the 145 sheep and 8 calves I formerly wrote to you about.  I have since bought 20 cows and 1 bull, payable at 12 and 18 months equally.  My brother has not bought any, nor does he mean to do any thing for some time."  Another letter dated 27th July, 1827, was produced, written by defendant to Mr. M'Queen senior, in Bedfordshire, which says - "I here beg to observe I have not used a penny of Mr. M'Queen's money to my own purposes.  I have always been in advance, and the balance in my favor, in fact, till lately.  I purchased no stock, 143 ewes, 7 steers, and 11 heifers, excepted, and to this day I have not built any hut, ploughed a single furrow, nor fallen a tree ;neither has my brother John;" and then a letter dated Sydney, 4th August, 1827, was produced, which states - "I now declare upon my honor, that I did not take possession of one acre of land until the Governor had decided on it, and that I have not yet ploughed a furrow upon my own grant or purchases land; and it is only within the last nine months I have put up a hut upon it; nor have I purchases any stock since February last, except 145 ewes, 11 heifers, and 7 steers;" this letter alluded to other general transactions; I do not think any reference on the cross examination of Mr. M'Intyre, was made to any other that the present nine bullocks; did not hear of any; was present in the Court; is sure Mr. M'Intyre was sworn when he gave evidence.

Cross-examination by Mr. Wentworth - The book from which the bill of particulars is concocted, was drawn out from the ration book, store book, and other books of the estate; the name of the storekeeper is John M'Intyre, not a relative of defendant; is in my service at present; the prices in Donald M'Intyre's account is charged to him the same as to free men at the time they were provided; there is a record of the items without prices in the books, but no account of the bullocks; was not told that the bullock concern was settled at at [sic] the trial of M'Queen v. M'Intyre; the clerk said the greater part of the account Donald M'Intyre to Peter had been returned to Segenhoe estate; (an account was produced to witness); this is not any thing like the account previously made out by witnesses; I heard John M'Intyre say the greater part had been returned; he afterwards said he had not sworn in court that all had been returned, but merely a portion; John M'Intyre did not tell me the account was settled, and that it was a hopeless case; I have treated John M'Intyre with grog at Cummings'; the waiter gave it to him by my orders; cannot swear Mr. M'Intyre heard the cattle in question named or read over at the trial; I am not positive whether I was or was not out of the Court any part of the day; cannot swear if Mr. M'Intyre was in Court when Mr. Norton read the names of the bullocks; believes that the names of the cattle in his affidavit produced, and in the account, are the same; has no doubt the names are correct; understands the same bullocks in his affidavit were those sworn to by Mr. M'Intyre as his property; if my affidavit refers to a part, and only to a part of those bullocks, instead of the whole, it is a mistake; I am not aware my memory was bad when the affidavit was prepared; I heard nothing at the late trial about bullocks being exchanged; I must have been out of the Court at the time; I mean I was out of Court this day - not on the former trial; I will swear I heard nothing about bullocks of Mr. M'Queen's being replaced for others drowned of Mr. M'Intyre's; I remember a question being put to Reeves, if he had drowned some bullocks belonging to Mr. M'Intyre; I have taken every means to trace that some bullocks were awarded by an overseer to Mr. M'Intyre, in lieu of others belonging to the latter, destroyed on the estate; heard nothing on the trial about an exchange of bullocks; does not recollect any allusion as to the steers said to be bought by Mr. M'Intyre; does not remember any questions as to cattle purchased from Arkell; knows Mr. M'Intyre had working bullocks of his won after my arrival in the colony; the books produced were deposited with Mr. Brown and Mr. Sparke, arbitrators; when I arrived here, in 1830, I waited on Mr. Peter M'Intyre, and delivered my authority; it was agreed that we should meet at Segenhoe; I went there and saw both his brothers on the farm; I wanted the accounts of the estate; they were kept in a small apartment, and the brothers were employed in making them out; about ten days after I got them; they appeared confused; I asked for the books from which the accounts were prepared, but they were withheld, and in a short time after they were laid before me; I took them to the store; the books were required against by M'Intyre, and given back under a promise that they would be returned on the morrow.  This was not done.  I came to Sydney and found on returning, that all the books had been taken off the estate, and it was about nine or ten months afterwards that Mr. M'Intyre lodged them with Mr. Sparke and Mr. Brown.  I attended for some time, and examined them at Mr. Woolstoncraft's, and when Mr. Brown was about to leave the Colony for England, Mr. Woolstoncraft said, he supposed, the arbitrators would consent to my getting them; I got possession of them in this way, and took them to my house; I got them on condition of returning them to the arbitrators, when demanded they were left with a view to an arbitration, and they were necessary for it; I have taken special care never to deliver them up since; when Mr. Brown left the Colony, a new arbitration was entered into; by both the old and new arbitrators they have been demanded; I offered access to them, but would never part with the custody; since my accession to Mr. M'Queen's agency, Mr. M'Intyre and myself have not been on an agreeable footing; the beginning of this arose from the books being retained by me; I know a man of the name of Lead, at Black Creek; he was a servant of the estate before I came to the Colony; I recollect having had a conversation with him; I did not say I wanted to get a haul at Mr. M'Intyre; I recollect having a conversation with him as to wheels, and swear most positively that no such conversation as this took place; I don't remember his saying he had presented a bill for work to Mr. M'Intyre; he applied to me after the action was commenced by him for wages against Peter M'Intyre, as Mr. M'Queen's agent, and asked payment; I did not desire him to suppress the fact of applying to me, before suing Mr. M'Intyre; I understood he prosecuted Mr. M'Intyre for his wages.

By Mr. Therry - I considered, a the agent of Mr. M'Queen, that I had a right to the custody of the books.

Henry Reeves - Is an assigned servant of Mr. M'Queen; recollects the case of M'Queen v. M'Intyre about September last; Mr. Peter M'Intyre was a witness, and examined after me; Mr. Norton appeared for plaintiff, and examined me respecting some working bullocks.  I named the bullocks but could not recollect all of them; Mr. Norton brought the book and read them over; I would know their names, and the book if I saw it again; I think their names are, Red Dragon, Jolly, Brandy, Billy, Dragon, Captain, Redmond, Major, and another I cannot remember (book produced); I believe this book is the one shewn by Mr. Norton at the trial; Mr. M'Intyre was examined by Mr. Norton; I do not know whether Mr. Wentworth or Dr. Wardell also examined him, it was by one of them; some question s were put, whether Mr. M'Intyre knew any thing about the bullocks I have just named; I mean those read to me by Mr. Norton; he said the bullocks belonged to himself, and that they had been purchased on his first arrival in the colony; Mr. Norton asked if they were branded with Mr. M'Queen's brand; he answered no, but if they had been so branded, it was entirely without his knowledge or permission; I paid particular notice to this part, because I did not think it was correct; I knew the cattle had Mr. M'Queen's brand on them; Red Dragon was purchased from Mr. Chilcott, at Glennie's Creek; I had seen these bullocks before September, when the trial took place; I have seen most of them from September or August 1825, up to 1828; I saw them for the first time at Maitland; they had come to take goods to Segenhoe; some of them had brands; I have seen the whole of them with brands on; this was about the end of 1825; they bore the brand of Mr. M'Qeen [sic]; they were at this time at Segenhoe; the management of the estate was under Mr. Peter M'Intyre; he was on the farm occasionally; the bullocks were generally used on the farm; Mr. M'Intyre had an opportunity of frequently seeing them; I don't know who gave orders to brand them; Red Dragon, Jolly, Billy, and Brandy, were first removed from the farm; this was about May, 1827; I did not see them removed; I saw them afterwards at Mr. Donald M'Intyre's farm; I was removed from Segenhoe about May, 1827, to Mr. Donald M'Intyre's; when I went I took Redmond, Dragon, and Captain; was ordered to take them to Donald M'Intyre's farm; they bore Mr. M'Queen's brand; there were two other bullocks came from Segenhoe, after I was on the farm; I remember seeing ten in all there; another was sent, but subsequently returned; one had Mr. Peter M'Intyre's brand on; he was named Gilbert; I know a bullock named Stumpy; it went from Segenhoe to Bulwarra, and then to Donald M'Intyre's farm; it was purchased in the Sydney market-place, by Mr. John M'Intyre, from Mr. Cooper, the auctioneer; it bore Mr. M'Queen's brand, on the estate; I don't believe there was at Segenhoe from 1825 to 1827, any other bullocks; I recollect a bullock of the name of Major; it had Mr. M'Queen's brand, as well as the others already named; they were all at Segenhoe, and removed to Mr. Donald M'Intyre's farm, and some from Bulwarra.

Dr. Wardell - My master has put several questions to me respecting this case; cannot say when; believe it was some time last week, as well as at other times; he has written down what I answered; has had some conversation with a person named Elliott; I know Gillies; Elliott, Gillies, and myself have lived together; I never told Elliott what to say; never had any bad feeling to Mr. M'Intyre; never said I would serve him out; never suspected he had spoken against me to Mr. Sempill; I know what is now meant by these questions; I never had any grudge against Mr. M'Intyre; a person at Segenhoe said to me that Mr. M'Intyre had stated I knew little about the management of horses, and had told Mr. Sempill so; I don't consider myself indebted to any one for kindness, unless it by Mr. Sempill; I know Donald M'Phie, I have seen him frequently at Segenhoe; I saw him two months ago; I don't know where he came from; I don't think I had ten words with him; I did not go any distance on the road with M'Laughlan and him; M'Laughlan had charge of the stock; I then saw M'Phie there; I never told M'Phie he might run himself off his legs and get no thanks for it; I swear I never said I will do more than M'Intyre expects, or that any man who would pick my eye out, I would pick out his two - or, I know how to serve him out - or, I would do my best to get Mr. M'Intyre a prisoner like myself; I never used any words to this effect; I cannot say the reason why my master questioned me so frequently; I was a bullock driver on and off, from September 1825, to 1828, or 1829; I was examined on the trial, in the case of M'Queen v. M'Intyre; I don't know why I was not put into the box to contradict Mr. Peter M'Intyre; I was here at the time, and might have been Mr.M'Intyre said on his examination at that time; I am not sure if he said he had bought 7 steers from Arkell, or indeed that he spoke any thing about two bullocks being lost in the service of Mr. M'Queen; in 1829 and 1830 I was at Bulwarra; I don't remember any of the bullocks going back to Segenhoe; remember some of his bullocks being drowned or killed in Mr. M'Queen's service; I don't remember him saying that Stewart had undertaken to award bullocks in lieu of those killed; I don't know if Mr. M'Intyre got bullocks for his; one bullock named Nelson was lost at Glennie's Creek; Pilot another, I swear was Mr. M'Queen's; I remember another bullock going up to the farm which died, as I was told, from a sore head; the bullocks branded with Mr. M'Queen's brand were known to all on the farm; Elliott is not here; I cannot say why he is absent; I never tried to prime or instruct him.

By Mr. foster - Elliot is now in Mr. Sempell's employ, he is in charge of the steam engine; he has also some beef recently salted in his keeping; Stewart was overseer under Mr. Peter M'Intyre; I have not been asked to say any thing that is untrue; I did not hear Mr. M'Intyre give evidence as to some steers purchased from Arkell.

The Judge elicited considerable evidence from this witness, which tended considerably to the advantage of the defendant, and proved particularly that he had bullocks upon the estate when those now in question were branded.

Andrew Livingstone - I reside at Bathurst, and am a settler; I have been in the employ of Mr. M'Queen, at Segenhoe; I came out as an indented servant, along with Mr. Peter M'Intyre, in the year 1825; I was overseer at Segenhoe; there were some bullocks purchased; the first were three bullocks from Mr. Cooper, by Mr. M'Intyre; I don't ecollect [sic] in what month they were named Boshy, Brandy, and Star; they were conveyed to Segenhoe by Mr. Peter M'Intyre; I was present at the purchase; they arrived about six weeks after, and were bought for Mr. M'Queen; they were branded with a star by Mr. M'Intyre's direction; this is Mr. M'Queen's brand; I received Mr M'Intyre's directions to brand them; I purchased four others from Elijah Lane, at Richmond; I was sent to Richmond to purchase them; they went to Segenhoe, after being branded at Mr. Bell's, by Mr. M'Intyre's order; the directions to brand them were given to me personally; there were four bullocks also branded which had been got from Horton James; the next purchase were four more after, from Mr. Chilcott; this occurred during the first journey to Segenhoe with the cattle, or about three weeks after Lane's purchase; they went with the others to Segenhoe; they were branded with a star on the estate, when a new stock-yard was put up; one of the four from Chilcott's was drowned on the way to the estate; this was at Black Creek; I was not present; I was present with Mr. Peter M'Intyre when Chilcott's were bought; the arrangement was, to take the cattle conditionally; if they answered, to purchase them; if they didn't, to pay so much a-day for their use; there were other parties present; this bargain was concluded at the tent door; the bullocks suited, and were accordingly retained; they were branded either by Mr. Stewart's or John M'Intyre's directions; I understood from Mr P. M'Intyre that they were bought for the estate of Mr. M'Queen; all the bullocks remained under my notice at Segenhoe for 18 months; they were frequently seen by Mr. Peter M'Intyre; one of Chilcott's, and three others, went to Mr. Donald M'Intyre's farm; they were, Red Dragon, Brandy, Jolly, and Billy; they were sent by Mr. Peter M'Intyre's directions; some little time after, three others went from Segenhoe, by his orders also, to Cahuga, his brother's place; they were, Dragon, Captain, and Redmond; the others remained on the estate; some of them were there in November, 1828, when I left; I have been on friendly terms with Mr. M'Intyre since; I went to Mr. M'Kenzie's estate, at Bathurst, by the recommendation of Mr. Peter M'Intyre.

By Mr. Wentworth - some of them went to Mr. Donald M'Intyre's, to be lent, as I supposed; this I thought to be the case respecting both lots; I don't know that any of them were awarded by Mr. Stewart to Mr. M'Intyre; I was not a minute in their presence when they were talking about an award; I passed them at the stock-yard; it was about heifers and bullocks they were speaking; I told Mr. M'Intyre, while in Sydney, that I heard of a heifer being turned into store for a bullock, at Segenhoe; I suppose the heifer was Mr. M'Intyre's; it was given in rations to Mr. M'Queen's men; I believe it was Mr. M'Intyre's heifer; I can't say what compensation was to be given; I supposed it was to go against rations drawn by Mr. Donald M'Intyre from the store; when the award was made, Hugh M'Donald was present, as well as Mr. Stewart and Mr. John M'Intyre, the defendant's brother; one of Mr. M'Intyre's cattle was killed while breaking in; another at Glennie's Creek; another ran away; and a heifer was slaughtered; there were no other bullocks that I know of; I have heard it stated that some bullocks were given in exchange for these; I signed a paper, stating that such an exchange had taken place, about the time of the last trial; I did this in Sydney; it is about two years ago; I did not read the certificate; it was read over by John M'Intyre, the clerk, who is now in the service of Mr. Sempill; I signed it, and don't think I now know the contents, from what I have heard them reported to be since; John M'Intyre said Mr. Peter M'Intyre wanted to see me, as Mr. Stewart was dead, about some bullocks; I don't know the cause of Mr. John M'Intyre's coming for me [the certificate was shewn]; it appears, by the size of it, to contain more than when I signed it; the writing is that of John M'Intyre's; Mr. Sempill had arrived in the colony at that time, but I had not seen him; I had been nearly three years out of the employ; I cannot say I quitted on bad terms with Mr. M'Intyre; I was not dismissed for ill conduct; he made a complaint against me before dismissing me; Mr. M'Intyre charged me with branding cattle on the farm, but Mr. M'Leod dismissed the case; I did not sell spirits and make the men drunk; I was fined for going off the estate without permission; it was the sum of £5; I did not serve out my indentures; I left at the end of four, and the indenture was for 7 years; my salary was £50 a-year, besides rations; my wife was also rationed; I got £20 more money when I left; I never shewed any ill-feeling to Mr. M'Intyre; I swear I never shewed it to any one; I know Hugh Donolly; he as an overseer, and succeeded me; I have frequently passed him in the streets; I never had any conversation with him respecting Mr. M'Intyre; I never swore by my god I would do him an injury, not any thing to that effect, either to Donolly or any other person; I know William Beavers; I remember seeing him about 2 years ago at Bulwarra; I do not recollect having any conversation with him as to Mr. M'Intyre; I swear I never said if I could get a chance I would do Mr. M'Intyre all the injury I could; I saw John Leach and Alexander Campbell also at Bulwarra; I did not say I hoped I should get a haul at Mr. M'Intyre, or any words to that effect; I know a person named Joseph Anderson, he came from England along with us; he was indented; I have seen him, and had a little conversation about window glass, since the trial of M'Queen v. M'Intyre; I did not express any ill-feeling to him respecting Mr. M'Intyre; I am sure I did not to him, and I did not allude to any evidence given on that trial; I had no knowledge of the evidence given on the trial at the time of thus meeting Anderson; I did not say that certain bullocks were Mr. M'Intyre's, nor did I say d----- him, I would have him yet; Mr. Sempill sent a man to me at Bathurst, to come as a witness on the trial of M'Queen v. M'Intyre, but I arrived too late; I had a letter stating I should be wanted; I never wrote to Mr. Sempill, or had any communication with him; after my arrival in Sydney, Mr. Sempill asked me what took place on the estate when I was there, and I told him; it was some time after this, that I bought a Durham bull from Mr. Sempill; I gave £8 for it; I have not yet paid for the same; it is a colonial bred animal.

By Mr. Rowe - I have no idea that his is to be made a present to me; I expect to pay for it; it was late in the evening when the substance of a paper now produced was signed by me; John M'Intyre was present; I understand he is alive; I had just arrived trom [sic] Bathurst; it was in consequence of being asked to go there that I went to Mr. Peter M'Intyre's; I got some brandy from him; he did not say much to me; John M'Intyre was writing the paper at the instance of Mr. Peter M'Intyre; it was read over to me, and I then signed it; steers were brought on Segenhoe by Mr. M'Intyre when we went up, and some were afterwards purchased from Mr. Arkell; it was considerably after the last purchase at Chilcott's that the steers came; it was about the commencement of the following year that the steers arrived; they were not branded at the time; some were afterwards branded with Mr. M'Queen's brand; sever bullocks (out of the steers) were branded with Mr. M'Intyre's; none of the latter were called any of the names by which the bullocks in dispute are known.  Mr. Stewart died about two years after I left; a bullock of the name of Smiler, was sent to Mr. Donald M'Intyse's [sic]; he was sent back to Segenhoe soon after being a bad bullock; Mr. M'Intyre's were not worth half the value of Chillcott's, Lane's, or Cooper's.  The cattle of Mr. M'Intyre would not have been a sufficient compensation for Mr. M'Queen's; one of tho [sic] working bullocks was worth three of the heifers that was killed; I recollect a bullock named Pilot; he was branded with a star; he was drowned at Glennie's Creek; the seven steers of Mr. M'Intyre were broken in, and one of them was drowned at Glennie's Creek with Pilot; three were sent to Mr. Donald M'Intyre's farm, and another lost; it was lost after being taken from the plough; the name of Mr. M'Intyre's bullock which was drowned, was Nelson; Lyon was killed; Donald, Danger, and Ranter were sent to Donald M'Intyre; the seventh I think was called Gilbert.

George Fencher examined - I am assigned to Mr. M'Queen; I joined in October 1826, and have been in his employ ever since: I have been ploughman and bullock driver; Mr. M'Intyre was formerly my master; I received orders in April 1827, to yoke a team of 5 bullocks to go to the Dartbook farm belonging to Mr. Donald M'Intyre; Mr. Livingstone was present; Messrs. M'Intyre both accompanied me; The names of the bullocks were Red Dragon, Billy, Jolly, Brandy, Star or Lively; the distance was about 7 miles; they were branded with a star; the bullocks had been on the estate since 1826; Mr. M'Intyre had frequent opportunities to see the bullocks so branded; he was occasionally absent form the estate; I don't know if they are returned to Segenhoe; I never saw them remaining permanently there; they were considered Mr. M'Queen's from the star brand; Mr. M'Intyre had at the time some young bullocks, part broken in and otherwise their names were Gilbert, Donald, danger, and Ranter; one was drowned named Gilbert; I also remember another called the Grey Stag; I recollect a bullock named Lyon; the other three were in the employment of Donald M'Intyre; I have been in the employ of Mr. Donald, Mr. Peter, and Mr. John M'Intyre; Dragon, Captain, and Redmond were drowned in the employment of Mr. Donald M'Intyre, carrying farm produce to Maitland.

Dr. Wardell - I know a stonemason named Spring; he worked at Dartbrook; I don't know why he went to Segenhoe; I swear I don't know; but I believe it was in exchange for my service.

James Chilcott - I know Mr. M'Intyre; I sold him four bullocks about seven years ago; they were working bullocks; I got £70 for them; there were a great many people present; I cannot mane any of them; I do not recollect; Mr. M'Intyre asked me to take the bullocks up to his place; the bargain took place first at my farm, but was finished at Hunter's River; Mr. Livingstone, the overseer, was in the camp at the time; I saw him there; I was paid the £70 a the office of Mr. Richard Jones in Sydney.  This was the case for the prosecution.

With the consent of both parties, the case was adjourned until Tuesday morning at 10 o'clock.

 

Source: Sydney Gazette, 17 August, 1833

 

TUESDAY, AUGUST 13.

(Before Mr. Justice Burton.)

The King at the prosecution of Sempill v. M'Intyre.

Dr. Wardell for the defendant rose and requested that His Honor would make a few notes of the present case, in order that they might be reserved for consideration at an after stage of the proceedings. - They were - 1st. That there was a decided variance between the Evidence and the Information. - 2dly. That in the particulars of demand a bullock is named "Redmond" - and in the Information he is designated "Redmand." - and 3dly. That neither the whole of the examination in chief, or the cross-examination in the case of M'Queen v. Donald M'Intyre have been proved in evidence.  There were several other points to which he would not, however, at present allude, - and he then proceeded to state the case to the Jury. - Gentlemen, I ought to call this a base and malicious prosecution - knowing what I do know, it is needless for me to refer to any instance, where the name of Mr. M'Intyre and Mr. Sempill are connected, which does not, and particularly in the proceedings regarding this case, display the deepest ill-feeling.  If Mr. Sempill has not already shewn to you in the manner of giving he evidence, I have it in my power to convince you, that this prosecution originates from the worst motives.  The circumstances from which it arises occurred so long as twelve months ago.  You have, gentlemen, been told that perjury is rather encouraged than punished by the law.  - Crimes of this description ought, on all occasions, to be investigated when circumstances are new, and memory fresh. - But here is a criminal prosecution brought forward when memory must have failed the witnesses on both sides; for no circumstances have been produced to keep the case upon the memory of the parties.  - Now, gentlemen, I require not laws for the rich, and laws for the poor; but I do require that a direct and honest mode of acting should be scrupulously followed.  - Has this been done in the present case?  You have heard witnesses examined when Mr. M'Intyre's evidence was taken, and who might, if he had sworn wrong, have contradicted him instantly.  - Why, gentlemen, I ask were they not put into the box?  It is an ordinary mode of acting, and frequently followed in this Court.  If he, Mr. M'Intyre, was suspected of falsehood, the witnesses ought to have been marshalled against him on the spot?  According to the evidence of Mr. Sempill, he thought it necessary to suggest questions, - but why did he not step forward and contradict him!  Then, gentlemen, there would have been Mr. Sempill the magistrate, against Mr. M'Intyre the magistrate.  - There would thus have been no difference in the credibility.  - I will tell you why this fair and honest course was avoided.  It was because Mr. Sempill's feelings would not prompt him to do so.  It was too easy for him.  Talk of guarding perjury by dragons and red dragons !  The man who would steal privately and murder character, - from such a man innocence ought to be protected by fiery dragons.  Surely some such guard was necessary to protect reputation?  Did they delay for want of evidence?  Certainly not - for we have seen a notice so far back as September for a new trial.  If he Mr. Sempill was in a condition to do this at that time, he could have filed a criminal information also; not upon the testimony of bullock-drivers, but of the very respectable assessors who tried the cause.  Why were they not brought forward soon after the case of M'Queen v. M'Intyre was dismissed?  This, gentlemen, did not suit the wishes of Mr. Sempill. He must allow time to go over, that people might forget what actually occurred; and this delay has enabled the prosecution to gather the evidence of parties actuated with the most malignant feeling to Mr. M'Intyre, - parties who have suffered disgrace and been discharged from his employment.  What is not more common or natural than that such persons when offended, imbibe a base and malicious intention to serve out the man who has offended them.  There is Reeves, who tells you, gentlemen, that he had been told his prospects of promotion from the drudgery of bullock-driving to a comfortable seat on the coach-box, had been destroyed by the representation of Mr. M'Intyre to his present master, Mr. Sempill, that he, Reeves, knew nothing about the management of horses.  Is it not natural, gentlemen, that such a fellow should seek an occasion to do the defendant harm?  Here is also Livingstone, who admits that he has been injured, as he calls it, by Mr. M'Intyre.  This man says, gentlemen, that he had signed some paper when drunk: and that he separated from defendant's employment by mutual consent: yet it was clearly proved that he had to leave Segenhoe through Mr. M'Intyre.  It was not a very comfortable thing to he turned out without being provided for, at the time, with any thing better; and yet he says he was not discharged.  He was, gentlemen, brought at Mr. M'Intyre's instance, and by his own admission too, before the magistrates and punished.  I cannot gentlemen, see for what purpose this case is mingled with matters wholly unconnected with it, in relation to the difference in the management of the agency by Mr. M'Intyre and Sempill, unless with the deliberate intention of exciting an illiberal prejudice in your minds - to shew that the defendant endeavoured to appropriate his principal's property to his own use; and that to Mr. Sempill was necessarily delegated the ungracious task of mending all the errors of the defendant.  Now, gentlemen, it is any thing but proved to you in evidence that the estate of Segenhoe laboured under embarrassment, and therefore the introduction of such topics displayed a bad feeling on the part of Mr. Sempill.  Instead of my client shewing any reluctance to meet a fair investigation, I will distinctly prove to you that he showed the contrary of a wish to evade an honest scrutiny.  You have, gentlemen, heard from the evidence of Mr. Sempill, that arbitration bonds were regularly entered into between Mr. M'Intyre and Mr. Sempill for the purpose of submitting their disputes to the award of two gentlemen in Sydney.  Was this not for the obvious purpose of shewing the actual state of affairs?  Why were the books given up, if it was not with this view; and why were they given up by Mr. M'Intyre at Segenhoe?  With regard to these books, Mr. Sempill begins a long and irrelevant story about acquiring possession of them, and ends by saying, "part I had locked up in the store, and Mr. M'Intyre had got them again?  Now, I ask, did he break open the store?  No.  This gentleman is an excellent test to try the credibility of Mr. Sempill, when he in effect says they were taken out of a locked room.  When the arbitrators, relying upon his promise, put these books into his keeping, he took especial care to detain them : he became careless how they came back again.  What, gentlemen of the jury, can you think of a man who enters voluntarily into arbitration with the intention of treating it with contempt, and obtains documents essential to its proceedings upon his work that they would be returned when demanded - locks them up, and keeps them securely past him for twelve months? After this trick he carefully institutes an action against Donald M'Intyre to adjust an account which he had previously submitted to arbitration.  Thus far you see the anxiety of Mr. Sempill to manoeuvre, and the anxiety of my client to submit to the arbitration, and to afford every facility to its operations.  How, gentlemen, does the conduct of Mr. M'Intyre now look?  The whole circumstances shew any thing but wickedness and dishonesty on his part.  Here, however, we have an act of alleged perjury, which you are about to decide, and which arises out of this very conduct.  He cheerfully surrendered to proper parties every proof of his integrity; but Mr. Sempill thinks he ought to have had the sole custody of the books, and at once, too, on his arrival.  Is this not sufficient to shew the plain bearing of this man's mind to my client?  I am, and I trust you are satisfied that the evidence which supports the prosecution is, on many accounts, not trustworthy.  I will begin with Mr. Norton : --- Lawyers, gentlemen, are the worst of evidence: their business is to forget.  They acquire this from a sort of habit; for they only recollect while the business is pending, and cease to remember when it comes to a conclusion.  It could not be expected that a man like Mr. Norton, with so much business upon his hands, could remember the incidental observation of a witness twelve months ago.  Witnesses have been put into the box, but they do not prove what the evidence of Mr. M'Intyre really was.  They shew that a deal more passed than they remembered, and that something was decidedly said about an exchange and award of bullocks.  This was unquestionably spoken of by Mr. M'Intyre. It certainly either occurred when he was examined, or it must be found in the affidavit for a new trial. Mr. Norton had admitted all this.  Whence, therefore, did he derive his impression?  It does not appear in the affidavit.  Here you will be able to observe that nothing of the kind is alluded to in this document: it must therefore have occurred when Mr. M'Intyre was examined.  It could not have been stated in the affidavits of Mr. Sempill and his two witnesses, and my client file no affidavit at the time a new trial was applied for.  But, gentlemen, you have not heard what Mr. M'Intyre's evidence really was.  What, therefore, becomes of the alleged perjury?  By the exchange spoken of in September last by my client, bullocks changed hands; those formerly the property of Potter M'Queen became that of Peter M'Intyre.  I admit that the bullocks named Red Dragon, and so on, were, in fact, branded with Mr. M'Queen's brand: all this I willingly yield.  The defendant never could have sworn, or even denied, that such was the case: circumstances clearly rendered it impossible to do so.  It is ridiculous to suppose that he could have made oath to bullocks known to Mr. Sempill, and others from Segenhoe, and present in the Court.  Good God ! could he be so stupid as to swear that these bullocks were not so branded?  I will put the possibility of the case against the evidence of the prosecution.  They have, with vast labour, been searching into the purchase and branding of the cattle.  I will adopt and admit all they have proved on this head, and ask whether it is possible that Mr. M'Intyre would, regardless of his character, step into that box and swear that the bullocks which forms the ground work of the present prosecution were originally his?  Mr. M'Intyre had brought them, but certainly not on his own account.  Seeing that question have been put in all sort of ways, I will, gentlemen, ask you to put the simple impossibility of the case against them.  As well might Mr. M'Intyre go out of this court and swear that no man saw you here, as swear that with which he is now charged.  It would not be so notorious.  Here was the use of the bullocks with one man and another for a series of years - bullocks known to people present on the trial of the issue, and yet will it be imagined that he could have solemnly sworn to what he and they knew to be utterly false!  Can you, gentlemen, believe that any witness would be so downright stupid?  I have a document in my hand which proved that it was not in his power to conceive such a thing.  The man who signed this document was subp¿naed on the trial of M'Queen v. M'Intyre.  It put it out of the power of Mr. M'Intyre even to insinuate that the bullocks never were M'Queen's.  This document, signed by Livingstone, whom you have heard examined, bears upon it the stamp of authenticity.  It describes the bullocks by name, and is dated 5th August, 1831.  Could Mr. M'Intyre, I again and again ask, swear they were originally his?  This certificate, Gentlemen, you will have an opportunity of perusing.  It says "bullocks delivered to Donald M'Intyre by you (Mr. Peter), as per margin," which are the cattle in question: and it describes minutely all the circumstances connected with the exchange or award.  You will have the means of judging whether this document is larger than when Livingstone signed it.  I am sure that if he would so far deviate from the truth in this instance, he would not hesitate to swear any thing against Mr. M'Intyre.  Upon these points, I feel confident, you must have already arrived at the conclusion, that Mr. M'Intyre neither did, nor could swear any such thing.  It is denied, upon the part of the prosecution, that anything was said by Mr. M'Intyre on the trial in September, about the exchange; and the evidence brought now, is, if Mr. M'Intyre did say so, it was not a fair exchange.  If they never heard him say so, how do they come to say that the exchange was unfair?  The whole drift of Mr. M'Intyre's evidence was decidedly with reference to the exchange, and who was the medium of effecting it?  Stewart, who is dead, and who was the only proper person on the estate, capable of deciding upon the relative merits of the bullocks lost and exchanged.  The whole question of exchange, if it was actually unfair, formed a part of the arbitration, and ought not to have appeared in this case.  This was a criminal prosecution.  Use therefore, Gentlemen of the jury, your judgments, and you will see that this introduction of circumstances having no reference to the case whatever, are intended to mislead.  But you must discard them from your attention; and never allow then to lead you either to the one side, or to the other.  You are to consider the circumstances Mr. M'Intyre had in his mind when he gave evidence.  That he had this before him, I will prove to you by persons who ought to have been put into the box, instead of discarded and jaundiced servants: or that of Mr. Sempill, who comes into this Court without the feelings of an honest minded man.  Sempill was questioned, Gentlemen, if you remember with respect to the affidavit made by him when a rule for a criminal information was applied for.  Every thing which he swore yesterday appeared to fit nicely; and he talked about these books, these bullocks, &c.  How happens it, Gentlemen of the jury, that in his present drillings with Reeves, Mr. Sempill should only have carried into the affidavit seven, for it only shows this number of bullocks.  This is a mistake with Mr. Sempill; but such mistakes are perjury with Mr. M'Intyre.  Perjury, Gentlemen, with one, and mistakes with the other.  In this affidavit, he could only refer to seven bullocks.  Such was his evidence at one time.  I should presume in the ordinary course of nature that what were purchased or considered steers in 1826, would be bullocks in 1827.  Enough - even according to the testimony for the prosecution - has been shewn to satisfy you that any thing but perjury was intended; any thing but perjury committed.  If it was indeed true that the answer of Mr. M'Intyre applied to the nine bullocks, there is enough proved to shew that it was merely a mistake.  Have you never heard a witness answer to one question when the querist meant another - furnishing an answer which without necessary explanation, would actually appear as militating against his general character for veracity? -  These occurrences are frequent.  Mr. Norton admits that much more was said by Mr. M'Intyre than he could state, and that the examination in chief, and the cross-examination, was long.  Who has proven to the contrary, or whose memory has retained a positive remembrance of what occurred?  If Mr. Sempill was staggered by the answer of Mr. M'Intyre, why did he not note it down?  It is the usual and natural proceeding, and would have suggested itself if he had been anxious fairly to bring it forward in its present shape.  If he had suspected perjury, why not have the quest on and answer recorded in open court?  It was not a discovery when that tribunal was dissolved!  The evidence, Mr. Sempill says, staggered him.  Why, therefore, did he not honestly say, I will write the answer down?  This would have been the honest, the only fair course.  Twelve months after the trial, when memory has failed, this answer is made the subject of a criminal prosecution; and now, gentlemen, for the first time brought before you.  Is this the way the integrity of a man is tested? is this the way character is to be lost?  The month of September last would no have been convenient. No; they must have a conviction, and then an application to the court for a criminal information.  [We cannot follow the learned counsel during a severe tirade against Mr. Sempill for instituting the present proceedings; the motives for which, however, the judge remarked in summing up, reflected no discredit on Mr. Sempill]  Yet this, the counsel continued, is the conduct of the prosecutor.  Is this, I ask, a case of fair dealing?  The course that ought to be observed between man and man? Yesterday, every artifice was adopted to hamper the case, by producing proof of disputes which ought to have been carefully avoided.  I condemn bitterly this scandalous course; and in justice to my client I will tell you, that the insinuation conveyed is unmerited and unjust.  Mr. M'Queen will soon find out a difference in his affairs in this colony, and that he (Mr. Sempill) would soon feed his employer with plenty of frivolous suits.  I feel a pleasure, gentlemen of the jury, in being honoured with the defence of a gentleman of Mr. M'Intyre's rank and character.  He comes spotless in this court, and I am confident he will retire from it unsullied in reputation, notwithstanding the character of the present prosecution.  With regard to the original action, M'Queen v. Donald M'Intyre, its history is this:- These was found, by Mr. Sempill, in the books of the Segenhoe estate, certain articles given to Donald M'Intyre and others, received from him.  You must know, gentlemen, that at such a place, and indeed throughout the colony, there must be numerous acts of exchanging - a borrowing of flour or meat, a frying pan or gridiron, even down to hob nails and iron pots.  Now, gentlemen, with reference to these transactions, I might throw a deal of discredit on Mr. Sempill.  The books shewed the names of the articles, but not the prices; and from the one side all credit for articles turned into store by Donald M'Intyre (we understood counsel to say) were left out; and even his own servant, John M'Intyre, told him that he was wrong in pricing a lb. of sugar at 1s. 6d., 3 lbs. of pork 2s., and so on.  He, Mr. Sempill appeared to think it a fine thing to fix such prices, and to make up, as he did, a bill for £1000.  When his clerk remonstrated, he says "tut, tut man, never mind, I am well paid, and must shew I do something ;" and so he tut, tuts, into court.  This was the nature of the action tried in September last, and with regard to which the defendant gave evidence.  Mr. Sempill has been long preparing for the present prosecution.  He went to Cahuga, took a peep at the bullocks, talked to Reeves, and hence this action.  Here you see, gentlemen, that this John M'Intyre, Mr. Sempill's clerk, could put his hand to an affidavit; but he was left at home.  He was not placed in the witness box. This is a very material circumstance for you to attend to, in order to notice the real merits of the prosecution.  It was at that trial enough for my client to shew that an exchange took place, and that the cattle was his.  The branding had nothing whatever to do with the case.  It was not necessary for him to give false evidence.  The object of Mr. M'Intyre's being put into the box was, I think, to prove the receipt of a keg of tobacco at Segenhoe, after Mr. Sempill came to the colony; and not at that moment to say any thing about bullocks, it having been proved on the first trial, and afterwards decided by the Judges sitting in banco, that the cattle could not form a part of that demand; but must become the subject of an action of trover.  It would therefore have been a gratuitous act of perjury on his part, had he even committed it. Dr. Wardell concluded his address by bearing testimony in highly complimentary terms, to the character of Mr. M'Intyre; and again reiterated the gratification he experience, in having the opportunity of defending the reputation of so honorable a man.

The first witness called for the defence, was -

J. E. Manning - I was one of the assessors in the case of M'Queen v. M'Intyre; I recollect Mr. Peter M'Intyre was examined on that occasion; it occurred 12 months ago; I remember something being said as to an award of bullocks; in the course of the examination yesterday, my impression was, that 7 and not 9 bullocks were named on the trial; their names I believe were mentioned; Mr. M'Intyre had lost or killed several bullocks of his on Segenhoe, and others were given in their place, that is, he was recompensed in kind; this was alluding to the animals charged against the defendant, Donald M'Intyre in that action; he admitted that the bullocks had been Mr. M'Queen's, and that he had obtained them in the manner stated; I am quite certain that this exchange or substitution was particularly alluded to by Mr. M'Intyre on his examination; I do not remember the purpose of Mr Peter M'Intyre being put into the box; I believe it was proved by John M'Intyre, Sempell's clerk, that the account sued for was settled; Reeves was examined at the trial ; the statement of Reeves and Sempell, that nothing was said as to change of bullocks is perfectly false.

Examined by Mr. Therry - I don't know the names of the bullocks; my impression is, that the claim in the civil case referred to 7; I understood the exchange went to the satisfaction of all the bullocks, whether they were 7 or 9; my impression is, he had 7 bullocks selected by an overseer in room of 7 killed or lost in the service of Mr. M'Queen; I don't recollect that he said, two at present held by him were ready to be given up on a settlement of accounts; I sometimes take and keep notes of cases tried before me as assesor; I cannot discover any of the trial of M'Queen v. M'Intyre; I am positive that those exchanged were discussed at the trial; I do not recollect what particular bullocks were exchanged; I yesterday heard Chilcott's name mentioned, and I have no doubt the bullocks bought from him were alluded to on the trial; Mr. M'Intyre said he had purchased bullocks on his arrival in the colony; I do not know if this applied to 9 or 7 bullocks; I do not think it was to the 9 set forth in the particulars of demand; I think Mr. M'Intyre said he was uncertain whether or not the bullocks had Mr. M'Queen's brand; I have had conversations with Mr. M'Intyre since the trial; I may have had some of the affidavits read; I hardly think I was present when the case was tried in banco; I don't think any thing differs between my testimony now, and what I said to Mr. Sempell.

Cross examined by Mr. Wentworth - Very little of what Mr. M'Intyre said in his examination or cross-examination, has been said by me or any other person here on this trial; his examination was a very long one.

Mr. John Gurner - I produce a document appended to an affidavit, signed by Levingstone; I produce a joint affidavit made on the application for a new trial, M'Queen v. M'Intyre, signed by Mr. Sempill, Henry Reeves, and John M'Intyre; I believe no affidavits were filed by or for defendant, Donald M'Intyre, in that case; I have seen none.

[The affidavit of Levingstone as to the charge of bullocks was here put in and read.

Nicol Allan, Esq. - I was in court on the trial of the case of M'Queen v. M'Intyre; I was present when P. M'Intyre gave his evidence; I recollect something being said as to an exchange bullocks; with reference to the bullocks sued for, he stated they were given by an overseer of the Segenhoe estate to him in compensation for bullocks of his, said to have been killed or drowned; I understood them to be Mr. M'Queen's before he obtained them.

Mr. Therry objected to Mr. Allan, because he was in court during the previous day.

Mr. Allan - When I was present yesterday I remarked to Dr. Wardell's clerk that something Mr. Sempill said was not true, and in consequence a subp¿na was sent for me to appear this morning.

Mr. Allan continued - Mr. Norton made a remark on the trial that Mr. M'Intyre had begun his operations early; the evidence alluded to his own, and not to M'Queen's bullocks, when Mr. M'Intyre spoke of branding; Peter M'Intyre said he had received them in exchange for bullocks of his lost or destroyed in Mr. M'Queen's employment.

By Mr. Rowe - Is certain Mr. M'Intyre said if his men had branded the cattle it was without his authority or knowledge; he alluded to the bullocks purchased for himsolf [sic] shortly after his arrival in the colony; the nine bullocks specified in the book of accounts were those noticed by Mr. Norton; Mr. M'Intyre also alluded to 7 steers purchased from Mr. Arkell; he said the overseer of cattle had allotted the bullocks to him in exchange for such as had been killed or used; I do not recollect his stating in the book that cattle named Farmer and Major were at Bulwarra, and were ready to be given up; if he had said he was ready to give them up.  I could not have forgotten it, as this was one of the points upon which the case hinged.  I don't know what number of bullocks he purchased on arriving in the colony.  Mr. M'Intyre never swore that the nine bullocks now pointed out were branded without his knowledge.

By Mr. Wentworth - There were either two or three sets of bullocks alluded to; the cattle mentioned as branded were Mr. M'Intyre's; I am confident Mr. M'Intyre is perfectly incapable of committing wilful and corrupt perjury; I have been intimate with him since my arrival in the colony, several years ago.

Walter Ewing Taylor - I am in the service of Peter M'Intyre; I was present at the trial of the case M'Queen and M'Intyre, in September last, and heard Mr. Peter M'Intyre give his evidence; I remember some questions and answers concerning bullocks; on being asked as to the bullocks Donald M'Intyre was sued for, he Mr. Peter M'Intyre said they were his property, and not Donald M'Intyre's; he said he received them in lieu of bullocks belonging to himself which had been killed, lost and drowned on the Segenhoe estate; they belonged at one time to Mr. M'Queen.

By Mr. Therry - I am assigned to Peter M'Intyre; I do not know bullocks named Farmer and Major; there ars [sic] a great many bullocks at Bulwarra; my notice was last called to the late trial of M'Queen and M'Intyre about the time of the present prosecution being commenced; I recollect Mr. P. M'Intyre saying he was not present when the exchange took place; he had left this to his overseers; the general exchange was merely spoken of by him and not the particulars; there was a great many questions put as to the names of bullocks and branding; he said they were not branded with Mr. M'Queen's brand.  In answer to a question from Mr. Norton - he alluded to his own bullocks, and he stated if they were so branded it was without his knowledge; I do not remember the names of the bullocks.  These answers were elicited by Mr. Norton on a cross-examination of Mr. M'Intyre.

By Mr.  Wentwortr [sic] - I am sure Mr. M'Intyre's evidence as to the branding, alluded to his own seven cattle.

Donald M'Laughlan - I came out as an indented servant to Mr. M'Queen; I left the employment nine months ago; I accompanied Mr. P. M'Intyre to Bathurst to purchase some cattle from a man named Arkill; he purchased them on his own account; they amounted to a hundred and odd; they were taken down by me and delivered at Patrick's Plains to Mr. M'Intyre's overseer; some of them were afterwards on Segenhoe when I went back again; all of them, with the exception of seven bullocks, were transferred to Mr. M'Queen; I thought them the best purchase that had come on Segenhoe for a long time; Mr. M'Intyre said as they were so good a bargain, I had better brand them as Potter M'Queen's; the seven were young bullocks; this happened in 1825; these 7 were branded with Mr. M'Intyre's brand by his orders; I believe they all were; I branded some of them; Mr. M'Intyre was very little at Segenhoe at that time, and for 2 years or better after we went there; some of them were at work on Segenhoe, and others went to D. M'Intyre. two were lost on Segenhoe; I had an account of the cattle and missed them; I believe some of them are still living; bullocks, cows and other cattle were purchased from a person named Smithers by Mr. M'Intyre for himself; some of them were also employed on the Segenhoe estate; I missed a bullock while on Segenhoe; I know that a heifer of Mr. M'Intyre's was killed and turned into store, and served out to the Segenhoe people; I am aware that others were lost, killed or missing, and I marked them down which I was told they were absent; I think I marked down four in this way, besides the heifer, which weighted about 900lb; she was better than most of the bullocks killed there; I was present with Stewart when an exchange took place; I recollect some of the bullocks; I would know them by inspecting them, but not by their names; to the best of my recollection four were pointed out for Mr. M'Intyre; I do not remember of any more; I was asked by Mr. Stewart my opinion as to the fairness of the exchange; I thought Mr. M'Intyre's bullocks equally as good as those given; I know Henry Reeves, he was a bullock driver; I have seen him lately; I know a person named M'Phie; I have heard some conversations between him and Reeves about Mr. M'Intyre; I have heard Reeves say, "if any man would pick his one eye out, he would pick out his two eyes;" and he also said to M'Phie, "You may run yourself off your legs and get nothing for it," and "I'll do my best to see him a prisoner," or something like it.  I never before or since heard Reeves repeat such expressions; when this occurred Reeves was living with me at Segenhoe; I thought and still think that he could have no good feeling to Mr. M'Intyre; I know Livingstone; he said nothing to me about Mr. M'Intyre; at Segenhoe some tme [sic] ago, I have heard him speak much against Mr. M'Intyre; I do not know exactly the cause of his leaving the estate; the conversation about Mr. M'Intyre occurred 3 or 4 years ago.

By Mr. Rowe - I was not in Court yesterday; I never entered the Court door upon my oath; I have talked generally about the case, and as to how it was going on; I have been at the Royal Hotel, to see Mr. Sempill, about ten days ago; I did not say I could not speak against Livingstone; I have been at Segenhoe, two months' ago; at Bulwarra about one month since, and at Cahuga about the same time; I did not see two bullocks named Major and Farmer at Cahuga; I saw "Farmer" at Bulwarra about a month ago; four bullocks, I believe, were removed from Segenhoe; Arkell's steers or bullocks were not at the present time, or when they came on the estate, equal to Lane's, Cooper or Chilcot's, for working; the stock bought from Arkell cost per head on the average, £4 5s. currency; there were calves among them; Chilcot's cost £17 odd; they were worth this sum at the time; when the exchange took place, I considered the bullocks of equal value; I was not reading a paper from Donolly and Sheriff's officer; I swear he did not read it to me, and that I do not know the contents of it; he handed the paper asking me to read it, but I would not.

By the Court - I kept an account of the cattle; it contained all cattle purchased, and I noted down what had became of them, not by names, but by the original brand; the book was stolen about four or five years ago with other papers, when my box was broken open; I took an account, I gave it to John M'Intyre, the clerk; after losing the account, I gave it to him by Mr. P. M'Intyre's order; the bullocks exchanged were noted in the cattle-book; I did not note them down, but they were put into it.

William Vivers - I am storekeeper to Mr. Grose, of Maitland; I was overseer at Bulwarra in January, 1828, and continued to September, 1831; I am aware that bullocks of Mr. M'Intyre's were used for Mr, M'Queen; they belonged to Bulwarra, and were frequently employed in carrying goods from the St. Michael store ship; some were lost on the Segenhoe estate; two were killed, two lost, and one reported by the drivers to me as dead; some of them were purchased from Mr. Maziere; they were much used in the service of the Segenhoe estate, and frequently to the inconvenience of Mr. M'Intyre, being taken from the plough, and thus causing confusion and great injury at times; I am not aware what bullocks were given in exchange for those killed or lost; the cattle were purchased in January, 1828, from Mr. Maziere, or about the latter end of December, 1827; I know Andrew Livingstone; I have heard him speak at Bulwarra against Mr. M'Intyre; he shewed a bad feeling to Mr. M'Intyre; I have checked him, and asked the reason why he said so; he told me I did not the dust that had taken place between them; I would scarcely believe him on his oath, if he were to speak with reference to Mr. M'Intyre, from what I have heard him say; I have been visited by Mr. Sempill at Bulwarra; we once spoke about Mr. M'Intyre; it came on in this way - he said the estate would not be long in Mr. M'Intyre's hands; he spoke this in a taunting way; in four weeks from that time, he said, it would belong to Mr. M'Queen; he said he would like to see me more comfortable; I can't say the object he might have in saying so; there is such a thing as pumping; it is to get all out of a man that is possible; he advised me, if I left the Bulwarra estate, to give him a call.

By Mr. Therry - I did not ask Mr. Sempill to employ me; I was overseer from 1828 to 1831; the bullocks employed for Segenhoe belonged to Mr. M'Intyre, and were named Traveller, &c., they were so employed before and after Stewart's death; I am not aware that they took goods also to Donald M'Intyre's; there was at one time some Segenhoe bullocks employed on Bulwarra, when they were waiting there for the teams coming up from Maitland; the teams had Mr. M'Intyre's bullocks in them; I knew two bullocks named Farmer and Major; they were young ones; branded with a spear, the brand of Mr. M'Intyre's; I have only heard of the loss of Mr. M'Intyre's five bullocks from report ; I have never quarrelled with Livingstone; I knew him before going to Bulwarra; I don't know why promoting him from £50 to £70 a-year should have caused any grudge; I don't know where the bullocks Farmer or Major now are.

 Donald M'Intyre - I am the brother of Peter M'Intyre; an action was brought against me by Potter M'Queen to recover some bullocks in September last; they were nine in number; the were not under my charge; I think I gave them in to the care of Alexander Campbell, his overseer; the bullocks were left with me as my brother's property, before the action commenced; they became his in consequence of an exchange - bullock for bullock - for some of my brother's cattle killed or lost on Segenhoe; I was deputed by my brother to arrange the exchange with Stewart; Livingstone was present, and refused to give me bullocks for those that had been lost - but Mr. Stewart said they were to be so given, as it was a fair thing; I think I received then, three or four bullocks; I received three - Ranter, Donald, und [sic] Danger, which were called the Bathurst bullocks; there were several sent after, for bullocks lost of my brother's; all that I kept in the whole amounted to nine; I am not aware of my own knowledge, although it has been reported by the servants, the these were given for others lost or killed of my brothers; I considered that Stewart, as superintendent, had sent them as an equivalent; I think when Livingstone and Stewart met me, four or five were due to my brother; I claimed them as acting for my brother; upon the arrangement of receiving bullock for bullock, I retained those afterwards sent on this account; in the whole, I received nine, which I kept; seven from Segenhoe and two from Bulwarra; the names of two of these were Farmer and Major; I considered them my property, agreeably to the arrangement with Mr. Stewart.

By Mr. Therry - The whole cattle due to my brother from Segenhoe were 11; I believe the heifer was killed before I came to the colony; she was reported by one of the servants as one of those I had to receive a bullock for; the Segenhoe store was generally my debtor in flour and meat; Captain, Redmond, and Dragon, were lost in the employment of my brother and myself, after the exchange took place; some of the bullocks, particularly Chilcott's, were procured at a high price, the same being necessary to carry the team forward; Danger and Ranter are now on my brother's farm; Donald died carrying rations to Gundy, my brother's station; they are none of the bullocks exchanged; Gilbert, I think, was drowned after the exchange; Nelson was drowned at Glenne's Creek; there were two named Lion; one died at Segenhoe, and another at St. Hellier's; I can only name the nine bullocks from report; Pilot was reported to me as a "spear" bullock; I never saw him; Stewart was superintendent of the Segenhoe estate; Livington was a working overseer, and laboured as other men did; the bullocks lost belonging to my brother were equal to any in the colony; in the action M'Queen v. M'Intyre, I filed a set off to the bill of particulars; the bullocks formed no part of it; I merely held them as an agent; when bullocks were reported to be as lost, I made a claim on Mr. Stewart; and as my brother did not wish to have any thing to do in awarding bullocks, he never appeared at the selection of them.

Samuel Rowley - I am employed by Mr. Peter M'Intyre as bullock driver; I am free; I have been employed on the Segenhoe estate; I went in 1826, and remained to 1831; some bullocks belonging to Peter M'Intyre were worked by me on Segenhoe; some of his were lost or killed, and bullocks in exchange were sent to Donald M'Intyre; two of them were drowned at Glennie's Creek, one died in a paddock, another was killed by the others dragging him on the ground, and a dun bullock also died; a heifer was killed; as Andrew Livingstone said, for Segenhoe; a bullock was to be given for her; they were all Mr. M'Intyre's; the drowned ones were Pilot and Nelson; the one that died was a polly ox; the one killed was named Sharper, and the other was of a dun colour; I knew that a red bullock was drowned at Mudie's Creek; he belonged to Mr. M'Intyre, and was in he Segenhoe employment; it was usual for Mr. M'Intyre's bullocks to be worked on Segenhoe; they were superior to those sent to Cahuga.

By Mr. Rowe - I was not in court yesterday; I know that bullocks called Nelson and Pilot, the property of Mr. M'Intyre, were drowned at Glennie's Creek; I swear they were branded with a spear, and that neither had a star brand; Pilot was one of Arkill's bullocks; I drove them when they were drowned; four bullocks named Dragon, Billy, Jolly, and Brandy, were first sent from Segenhoe to Mr. Donald M'Intyre's; they were sent in 1827, about the middle of the year; three bullocks were drowned, and the heifer had been killed when the four bullocks were sent to Cahuga; I found three bullocks more gone, namely, Captain, Dragon, and Redmond; I do not know the exact time; I also remember Farmer going for a bullock that was killed while running away; I do not know what the other bullock went for; Sharper was killed when the others ran away with him; he was killed on the first day of being yoked; Livingstone abused me for bringing a young bullock into the field; it was not because he was wild, but because he was young, and did not work so well as the others, that Livingstone ordered him to be taken out; the bullocks lost were of a superior nature to those sent from Segenhoe in lieu of them; even the young one that was lost was as good.

By Dr. Wardell - They were young bullocks; the four first that went from Segenhoe were old worn out ones; the day I had the young bullock, I was employed in the ploughing in wheat, when it is better to have old than young bullocks.

John M'Leod Gillies - I am in the service of Mr. M'Queen; I had a subp¿na to attend on this case; I received it on 25th July; Mr. Sempill was not on the farm; he did not know I received it; Mr. Sempil's brother in law threatened my life if I appeared before the Supreme Court; I met with great obstacles in appearing here; I know Elliot and Reeves; I lived in the same house with them in May and June last; I remember them rehearsing certain charges that were to be brought before the Supreme Court; Reeves undertook to refresh Elliot's memory; they said Mr. M'Intyre would be hanged or transported; I have heard them say they would serve out Mr. M'Intyre; Reeves used to tell Elliot to say so and so; Reeves said he was certain he would be examined by Dr. Wardell; he said if he was asked how he was promoted from a bullock diver to a coachman, it was as lawyers who had god luck, would go to heaven.

Cross-examined by Mr. Rowe - I am hospital assistant at Segenhoe; I have been on my journey to this Court for the last week; I was assigned to Mr. M'Queen, on my arrival in 1829; I was sent to an iron gang for six months for neglect of work; I think it was Elliot said he would serve out Mr.M'Intyre when they were together they said, they would serve him out; I have been in Donald M'Intyre's charge since I left Maitland; he brought me up here; he has fed me; I got this collar from a friend; Dr. Lang gave me this shirt about three years ago; I brought this black silk handkerchief from England four years ago; I have had very little conversation with Mr. Donald M'Intyre; I have had no conversation with him on this case; I have been living in Clarence-street I think; Donald M'Lachlan is the name of the person who keeps the house; I had not the least conversation with Mr. Donald M'Intyre on this subject in Sydney.

Joseph Anderson - I came out as one of Mr. M'Queen's indented servants; I know Andrew Livingstone; I heard of a trial between Mr. M'Queen and Mr. M'Intyre; Livingstone told me he had been down about that trial, but came too late; it was in Sydney I saw Livingstone; I heard thim [sic] say, "D-n M'Intyre, I will be even with him yet - I will serve him out;' I knew he was not on good terms with Mr. M'Intyre; I had experienced it when I was living at Segenhoe.

By Mr. Therry - I have never given information to Mr. Sempill about bullocks being removed to Cahuga; I have sometimes been on good terms with Mr. M'Intyre and sometimes not, I was not on good terms with him, otherwise I should not have paid so dear to leave him; I paid the expenses of my passage out; I was subpoenaed  four or five days ago; I was sent for by Mr. M'Intyre; when he sent for me I do not think he knew that Livingstone said anything to me about this business; I never said anything to Mr. Sempill about bullocks being removed from Mr. M'Queen's estate by Mr. M'Intyre.

By Mr. Wentworth - What I mean by paying dear for leaving Mr. M'Intyre was, I paid to Mr. M'Queen's order all my expenses coming out.

John Leed - I know Mr. Sempill; he had told me he wanted to get a haul at Peter; Mr. Sempill desired me to suppress the fact that I had applied to him for my wages; I did not keep a public-house when he gave me an order for some cart wheels; it was on that occasion he spoke to me or having a pull at Peter.

Cross-examined by Mr. Rowe - I was a wheelwright on Mr. M'Queen's estate; I had a public-house at Black Creek; I got a licence as other people do; I left Segenhoe because Mr. M'Intyre told me he had no further use for my services; I then went to Bulwarre [sic]; I was never indented to Mr. M'Queen; I engaged with Mr. M'Intyre; I lived three years at Segenhoe; there was no difference in the rations; I spoke to Mr. P. M'Intyre this morning; he told me the trial was half over yesterday, and that he thought it would finish today; I spoke to Mr. D. M'Intyre to-day; he did not say any thing particular about this case; I had no conversation with D. M'Laughlin to-day; I know nothing at all about the bullocks.

Hon. Col. Snodgrass, C. B. - I have known Mr. M'Intyre ever since I came to the colony, which is about 4 years; I should not think him a gentleman capable of committing wilful and corrupt perjury.

Hon. C. D. Riddell, M. C. - I have known Mr. M'Intyre for nearly 20 years, I should think he would be the last man to commit wilful and corrupt perjury.

Hon. Richard Jones, M. C. - I have known the defendant since 1824; we came passengers in the same ship from England. I have had many large transactions with the defendant as agent for Mr. M'Queen, and I think him incapable of committing what his is this day charged with.

Hon. William Lithgow, M. C. - I have known the defendant since 1826; I should not think him capable of committing wilful and corrupt perjury.

W. Macpherson, Esq. J. P. - I have known the defendant since 1824, and I most certainly do not think him capable of committing wilful and corrupt perjury.

G. T. Palmer, Esq. J. P. - I have been particularly acquainted with the defendant, and most certainly I think him incapable of committing wilful and corrupt perjury.

Hon. Alexander Berry, M. C. - I have known the defendant for 8 or 9 years, and have no hesitation in saying that I do not think him capable of commiting [sic] wilful and corrupt perjury.

Other witnesses, of the very first respectability, also spoke to the high character, for honour, or the defendant.

Mr. Therry replied at considerable length.

The Learned Judge summed up at great length; after which the Jury retired for about five minutes, and returned a verdict of Not Guilty - which was received with great applause by a crowded court.

 

Forbes C.J. and Burton J., 5 October 1833

Source: Sydney Herald, 7 October 1833[4 ]

 

In the case of the King at the prosecution of H. C. Sempill v. Peter McIntyre, Dr. Wardell moved the Court to award costs, as the prosecutor was not only obliged to prosecute, but to prosecute successfully, under the IVth and Vth William and Mary.  The Court awarded costs.

 

Notes

[1 ] The Herald does not state the date, and the case was not reported in the Sydney Gazette.  It is likely that it was heard on the first or second of April 1833.

[2 ] For later proceedings, see Sydney Herald, 3 June 1833; Sydney Gazette, 9 July 1833.  See also Portus and McIntyre v. Macqueen, 1832.

[3 ] See also Sydney Herald, 15 August 1833; Australian, 16 August 1833.  For commentary, see Australian, 16 August 1833.  The trial notes of Burton J., are in Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2405, vol. 2, p. 149; continuing in 2/2406, vol. 3, p. 3.  The criminal information is in loose sheets between pages 90 and 91 of vol. 2.

[4 ] See also Australian, 11 October 1833.  It made the following comment: "We are doubtful how far the words of the statute apply to this case, and the more especially, as it will cost Mr. M'Intyre more than half the penalty of the recognizance, which is only £20, to obtain the other half, - and after all, what a wretched compensation! - ten pounds to pay the expense of a trial, which must have cost him twenty times that amount in money, - and yet this is the only redress he has for so much expense. [sic] loss of time, and annoyance arising from a most harassing and unjustifiable prosecution."

Published by the Division of Law, Macquarie University