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

Nathan v. Meredith [1834] NSWSupC 77

assault - self-defence - theatre, riot in

Supreme Court of New South Wales

Dowling J., 26 June 1834

Source: Sydney Gazette, 28 June 1834[1 ]

Nathan v. Meredith. - This action was brought to recover compensation in damages for an assault committed on Plaintiff by defendant at the Sydney Theatre.  The circumstances of the case as detailed by the witnesses for the plaintiff were as follows: -- On the night of the 26th December last, the plaintiff went to the pit of the theatre, where between the representation of the play and afterpeice, the orchestra was bent in by the extreme pressure caused from an over-crowded house.  Several persons from the pit, among whom were many females, simultaneously rushed forward on the stage, to save themselves from the danger which threatened them; the plaintiff was one of the number, when the defendant came out of one of the stage doors, and seizing him by the collar, precipitated him from the front of the stage into the orchestra, his leg catching the iron spikes at the border, and lacerating the part, which bled profusely.  While the parties were struggling together, a young man named Fitzpatrick one of the witnesses, called out to the defendant to mind the spikes and not hurt the man on them, when the defendant replied, ``damn him and the spikes."  For the defence several persons were produced, who attempted to give a very different coloring to the subject.  A person named Abraham Davis swore that the defendant civilly requested the plaintiff to go off the stage and that while he was doing so, the nails (spikes) caught in the leg of his trowsers, and he fell over quite, accidentally into the orchestra.  He also added that he saw no violence used.[ 2]   Some of the witnesses for the defence, although they could distinctly see Mr. Meredith mildly inviting the plaintiff to leave the stage by the side doors, could not even see the spikes with which the unfortunate man's leg got entangled.  Mr. Francis Viret, a clerk in the Custom House, swore that Mr. Meredith took the plaintiff gently by the arms, and put him down quietly into the orchestra.  Mr. Lane, of the corps dramatique, was called to prove that the plaintiff was acting as stage-manager on the night the assault was committed.  One of the jury enquired of this witnes [sic], whether it was not contrary to the rules of the theatre, that any of the audience should come upon the stage? and having obtained an affirmative, he next proceeded to ask whether the circumstance of their being an unusual pressure in the house, and accidents likely to ensue in consequence, could excuse a person's coming on the stage? when Mr. Justice Dowling very properly interrupted the interrogation, by remaking that the last question involved a point of law.  In putting the case to the jury, the learned Judge remarked, that it seeming to be conceded on the part of the defendant, that an assault had been committed, the only question remaining for consideration, were 1st, whether greater violence had been used in ejecting the plaintiff than was necessary under the circumstances? and if so, then 2dly the measure of damages which that extra-violence merited.  The jury consulted for about an hour, and then returned a verdict for the plaintiff, with damages 40s.   Counsel for plaintiff, Mr. Nichols; for defendant, Mr. Keith.

 

Notes

[1 ] See also Australian, 1 July 1834.  For the trial notes, see Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3281, vol. 98, p. 200, recording that the play that night was Richard III, plus a pantomime.  The notes continue in 2/2382, vol. 99.

The theatre was sometimes a riotous place: see, for example, Australian, 8 July 1834 in which William Dowling was convicted of using blasphemous and obscene expressions, and throwing orange peeling from the gallery into the pit.  Other occasions were more genteel, such as when the Governor and Forbes C.J. attended the theatre: Australian, 5 August 1834.

[ 2] Note in original: ``Even the learned counsel for the defendant was ashamed of this man's testimony, and in some observations which he addressed to the jury, disclaimed any intention of availing himself of it."

Published by the Division of Law, Macquarie University