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

Barton v. Parry (No. 2) [1834] NSWSupC 33

tort, interference with servant - convict service - Port Stephens - Australian Agricultural Company

Supreme Court of New South Wales

Dowling J., 29 March 1834

Source: Sydney Gazette, 1 April 1834[1 ]

(Before Mr. Justice Dowling, and the following

Special Jurors.)

Thomas Walker (foreman), David Allan, George Wentworth, Charles Thomas Smeathman, David Johnstone, Alexander Brodie Spark, Charles Sims, George Suttor, John William Gosling, Edward Jones, Prosper Demestre, and Henry Bayly, Esquires.

Barton v. Parry.

This was an action brought by the plaintiff against the defendant, for illegal detention of his assigned convict servant, one Thomas Foster, for the space of two months.  The damages were laid at £500.

Mr. Foster opened the pleadings.  The defendant addressed the jury in person.  The circumstances out of which this trial arose, are the same in effect as those in which the former action (briefly reported in our last number) originated.  In the month of December, 1830, the plaintiff had Thomas Foster assigned to his service, by the assignment board in the usual way.  The instrument was produced in Court, and it was proved to be signed by the members of the board, viz.; - William Dumaresq, James Busby, and Frederick Augustus Hely, Esqs.; and was also approved of by countersignature of General Darling, who was at that time Governor of the Colony.  Foster was forwarded from Hyde Park Barracks, to the cutter Lambton, in the month of February, 1831, attended by Edward Murray one of the Company's assigned servants who had been confined for several weeks in the hospital in Sydney, and was returning to the estate of Port Stephens.  The messenger who escorted these two men to the Lambton, delivered a written document with them to Mr. Corlett, the master, the nature of which did not however appear.  Murray and Foster both swore, that shortly after they wet on board the vessel, Sir Edward arrived, and seeing them, questioned the master respecting them, who informed him that Murray being recovered from sickness, was returning to the Company's service at Port Stephens, and that Foster was proceeding as an assigned servant of Mr. Barton's.  Opposed to this however, the evidence of Mr. Corlett went directly to contradict their statement, as he swore most positively that no such conversation ever took place between him, and the defendant.  When the Lambton arrived at Port Stephens, Foster did not announce his assignment to Mr. B's. service, and the consequence was, he was employed as a groom in the Company's stables, where the defendant often saw him.  After he had been about six weeks on the settlement, Mr. Barton casually heard of his arrival, and also of his assignment to his service; and he then addressed himself to the defendant, requesting that Foster might be immediately transmitted to him.  This Sir Edward declined to do, on the ground that Mr. Barton could not shew any title to his services, and referred the letter to the Bench of Magistrates, where, strange to say, Sir Edward himself presided in his character of a Justice of the Peace, assisted by Captain Moffitt of the 17th regiment, the Police Magistrate of the district.  The result of this magisterial interposition, was referred to the authorities in Sydney, and during the delay attendant on this mode of procedure, the man Foster was retained in the Company's service.  When the fact was at length established, by communication from the proper officer, that he was the boná fide assigned servant of Mr. Barton, he was then for warded to that gentleman's residence, but by this time he had become in an ill state of health, he had on two blisters, and was incapable of performing laborious work.  Mr. B. therefore refused to receive him, saying, those who had availed themselves of his service in health, might also keep him in his sickness, and Foster was thereupon returned to the employment of the Crown.  The plaintiff endeavoured to shew, that this formed only one of a series of aggressions he had experienced at the hands of the defendant; and that he having already deprived him of his servant allowed him by the Company, took this method of subjecting him to still further annoyance, by maliciously depriving him of the services of a domestic to whom he was legally entitled.  He also urged that the inconvenience he was thus put to, could not be remedied at a place like Port Stephens, where even the air itself was at the disposal of the defendant, in his capacity of commissioner; and that he was compelled of necessity, to supply the defects to which the loss of Foster's services exposed him, (some of them for the Company's own benefit) by the individual exertions of the members of his own family.  On the other hand, the defendant contended that he was not aware of the fact of Foster being Mr. Barton's servant, and that when he discovered it to be the case, he forwarded him to that gentleman, and would not detain him in the Company's employ, even after Mr. B. had refused to accept him.  The learned Judge, in putting the case to the jury, remarked, that if they believed the allegations of the plaintiff, that the defendant had maliciously deprived him of his servant, in order to gratify his private ill-feeling, he must say, as an honest man, that the estimated damages were not laid too high.  Of this however, they were to form their deliberate judgment, from what the witnesses Murray and Foster had sworn, which was rendered subject to such legal objection, as they might think fit from the contradiction of Mr. Corlett.  The case was one which demanded their most serious consideration, both as regarded the character of the plaintiff himself, as well as that of the defendant, on whom the highest honors attainable in his profession, had been conferred by the Sovereign.  The jury without hesitation, returned a verdict for the defendant.  There was a third cause on the paper, between the same parties, but the plaintiff having consulted with his counsel for some minutes on the subject, consented to withdraw the record.



[1 ] See also Sydney Herald, 3 April 1834; Australian, 7 April 1834; and see Barton v. Parry (No. 1), 1834.  The trial notes are in Dowling, Proceedings of the Supreme Court, vol. 94, State Records of New South Wales, 2/3277, pp 191f; and 2/3278, vol. 95, pp 41f.  See also 2/3279, vol. 96, p. 4.

The Sydney Herald, 3 April 1834, also stated that an action between these parties for breach of contract was withdrawn.  Barton sued Perry in 1835, for not supplying the lodging promised under his contract of employment: judgment for the defendant: Australian, 10 April 1835; Sydney Gazette, 7 April 1835; Sydney Herald, 9 April 1835.

Published by the Division of Law, Macquarie University