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

Mannon v. Nicholson [1834] NSWSupC 39

convict discipline - magistrate, action against - jury trial, lawyers as jurors - legal practitioners, not to be jurors - assault, civil - false imprisonment

Supreme Court of New South Wales

Dowling J., 22 March 1834

Source: Australian, 24 March 1834[ 1]

Mannon v. Nicholson, Esq. - This was an action of trespass, brought by the plaintiff, to recover damages from the defendant who is a magistrate of the territory, for having illegally caused him to be worked on the tread mill for a period of seven days - the defendant pleaded the general issue, the damages were laid at £200.  It appeared in evidence, that the plaintiff was originally transported to this Colony for 7 years, in the month of March 1826.  At the time his sentence expired, he was working in a road party near Lansdowne Bridge, on the Liverpool Road, and he stated the fact to the overseer, and refused to work any longer, for this offence, he was taken before the Liverpool Bench of Magistrates, and sentenced to be worked on the tread mill for three weeks, upon his arrival at the mill, he informed the superintendant Mr. Murray, that he was free and refused to go on the mill - for this offence, he was taken before the defendant, then sitting at Hyde Park Barracks, when he again stated himself to be a free man.  Upon this, reference was made to Mr. Ryan the Chief Clerk in the Superintendant of Convicts Office, who sent a certificate to the defendant, ``that the plaintiff had been sentenced to serve 2 months in an Iron Gang, and that it was cumulative on his original sentence," upon this evidence the defendant sentenced him to be worked for 7 days on the tread mill, in addition to the sentence of the Liverpool Bench - he was accordingly sent back to the tread mill, and worked accordingly - It was proved by the plaintiffs certificate of freedom, signed by the Colonial Secretary, and by the Indent and Muster Roll of the ship, by which the plaintiff arrived, that he was a free man at the time he was sentenced by the defendant.

For the defence, the conviction of the man for the offence stated, was produced, and the Solicitor General contended, that as it had not been quashed it was a sufficient defence to this action.

Mr. F. Stephen replied at some length, arguing that as it appeared upon the face of the conviction, that the Magistrate had exceeded his jurisdiction, the plaintiff was entitled to recover, and that the defence made, could not be set up in answer to this action - His honour told the assessors, that in point of law the conviction was not a sufficient answer to to [sic] the action, as the defendant appeared on the face of it, to have exceeded his jurisdiction, the only question for their consideration, was, the amount of damages they would award.  It was not suggested that the defendant had acted from malicious motives, but had mistaken the power vested in him; they would therefore given such temporate damages as would meet the justice of the case - Verdict for plaintiff, damages £5.  Counsel for plaintiff, Messrs. F. Stephen and G. R. Nichols, for the defendant, the Solicitor General.

 

Forbes C.J., Dowling and Burton JJ, 5 April 1834

Source: Sydney Gazette, 8 April 1834[2 ]

 

Mannion v. Nicholson. - The Solicitor General moved for a new trial, on the ground that the magisterial record of conviction tendered for the defence on the trial of the action, was improperly refused by the learned Judge.

Mr. Sydney Stephen opposed the motion.

Mr. Justice Dowling who tried the case, observed that he had no hesitation in saying that his first impressions as to this point, were erroneous.  After however, listening attentively to the arguments of the bench and the bar, he was of opinion, that his conviction was a good answer to the action.

The other Judges concurred, and a new trial was granted.

 

Notes

[1 ] See also Sydney Herald, 20 March 1834: the initial jury had included two attorneys, and was struck out, Forbes C.J. observing that ``instructions should be given to the Sheriff, to exclude all practitioners from the jury list".   The trial notes are in Dowling, Proceedings of the Supreme Court, vol. 94, State Records of New South Wales, 2/3277, p. 85: the action was for trespass for assault and false imprisonment.

There was also a new statute in 1832 to regulate the summary trial and punishment of convicts in New South Wales: see 3 Wm 4 No. 3, Sydney Herald, 29 October 1832, Sydney Gazette, 6 September 1832; and see a Circular to Magistrates, 24 September 1832, in Forbes Papers, Mitchell Library A 1381, Reel CY 986 (near the end of the Forbes Papers).  On these changes, see also Australian, 31 August, 7, 14 and 21 September 1832.

[2 ] See also Australian, 11 April 1834; Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3279, vol. 96, p. 27: verdict set aside.

Published by the Division of Law, Macquarie University