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

Hayes v Soloman [1835] NSWSupC 20

theatre, riot at - anti-Semitism - assault

Supreme Court of New South Wales

Hearing, 18 March 1835

Source: Sydney Gazette, 19 March 1835[ 1]

Hayes versus Solomon - This was an action brought by plaintiff against the defendant, for an assault at the Theatre, on the 23rd October last.

Counsel for plaintiff, Mr. Foster; for defendant, Messrs. Wentworth, and S. Stephen.

Mr. Foster opened the case by stating, that it was one of a most aggravated nature; that he should be able to prove that the defendant came into the Theatre with a mob for the purpose of creating a riot and disturbance; that the plaintiff and his party endeavoured to quell the row, and for their interference the plaintiff got assaulted in a most serious and violent manner.

Dichard [sic] Driver sworn - I am a publican; I was at the Theatre on the 23rd of October last; I saw the defendant there, he had a stick; I saw the plaintiff there, in the upper tier of boxes; the house was disturbed; I saw a person named Cohen wielding a stick, there was a rush towards him to take the stick from him; plaintiff was one of the persons who ran towards him, and I saw defendant strike plaintiff over the head with a stick and nearly felled him, some time after this I saw plaintiff's head bloody, but it had been washed; plaintiff was in my house about a fortnight afterwards, and the defendant and Mr. Sullivan came in; defendant appeared sorry for what he had done, and seemed anxious to have the affair settled without coming before the Court, as it was a general row on that evening; plaintiff said he had engaged Mr. Keith; defendant made no offer of compensation; there were some refreshments called for, of which defendant, Sullivan, and I partook, Hayes would not take any.

Cross-examined - I do not know in what part of the house defendant was at the commencement of the performance of the evening; there were two parties in the house that evening, a party of Australian youths, and a party of Hews; defendant was on his legs when he struck the blow, and ran out immediately afterwards; I heard several persons say throw them into the pit, but I don't know which party it was; I advised the parties, plaintiff and defendant, to arrange the matter; Solomon was instrumental in raising a subscription for Master Jones, he paid me for him 5s. 7s.

George Wall sworn  -- I was at the Theatre on the night in question; I saw Hayes there; I saw him just after he had received a blow on the head, his head was bloody at the time.

This closed the plaintiff's case.

Mr. Wentworth then addressed the Jury to the following effect - He said it was a most disgraceful proceeding on the part of the plaintiff to bring the case into the Supreme Court, as by the document he held in his hand, viz. a Summons from the Police Office, and which he ought to have acted upon; now, Mr. Hayes goes to some lawyer of the Court, who thinking it would be a safe course, advises him to come to this Court to seek damages; I dare say the plaintiff calculates largely on his damages upon this occasion, seeing a few Currency lads in the Jury box, but he (Mr. W.) felt sure they would not be biassed [sic] or influenced by any party feeling, and that they would in this instance, as justice demanded it, go against their countryman, by returning a verdict for the defendant.  The disturbance at the Theatre originated in a person named Knowles not playing for the benefit of a Mr. Phillips, who is of the Jewish persuasion, and the defendant did right in expressing his disapprobation of Mr. Knowles's conduct in the way he did, Mr. Knowles's was a public character, he had no business to allow his private quarrels to interfere with his public duty; it was decidedly Mr. Knowles's duty to play for a brother-performer, and the plaintiff a native of the country ought to be ashamed of himself for bringing the present action into Court.  Why did he not, as a man of sense, at the instigation of a brother Native, drop it?  Or why did he not take the case to the Police Office - the proper place for a case of this sort to be decided, and let the Magistrates deal with it as they thought proper?  He certainly did so, inasmuch as he issued a summons for the plaintiff to attend there, when, I presume, some attorney of the Court told him it would be an insecure way of procedure, and advised him to bring the case into the Supreme Court, and lay heavy damages.  You, gentlemen, have it upon evidence, that the plaintiff knocked a young man of the Jewish persuasion, named Cohen, down; when as a most respectable witness, Mr. Driver, says, plaintiff received an accidental blow from the defendant.  And why, gentlemen, did the plaintiff come from the pitt to the boxes on the commencement of the fracas, if he did not wish to take an active part in it? and we are all well aware, that when one man fights another, or when one party is opposed to another, heads must be cracked, and bones may be broken on either side, but on this occasion the plaintiff's party were victorious; they beat the Jews into a corner, and the poor Israelites were glad to call the police to their aid, as I shall hereafter prove.  I am sure, gentlemen, if you were all Currency lads, after the evidence you will hear adduced in behalf of the plaintiff, you will be of the same mind as myself, that the plaintiff was the aggressor, that this action was brought to gratify a vindictive feeling, and that you will let him know you deem it such, by awarding damages to an amount insufficient to carry costs.

For the defence:--

Richard Sullivan, sworn - I am a dealer in George-street; I was at the theatre on the night in question; I did not see any part of the fray as concerned the plaintiff and defendant; I heard a great uproar in the house; some time afterwards I went with the defendant to a public house, kept by Mr. Driver, where I endeavoured to arrange the affair, Hayes being present; Hayes seemed determined to bring the matter into Court; we had some refreshment; Hayes would not partake of it.

George Paul, sworn - I was at the theatre on the night in question; I saw the defendant in the pit first, and I then saw him in the upper boxes; there was a great confusion there; I did not see in which way either the defendant or plaintiff were served; I got into the boxes by paying; I heard several exclamations to throw them over, but I don't know who the exclamations proceeded from.

Lewis Cohen, sworn - I am a tailor; I saw plaintiff and defendant at the theatre; plaintiff knocked me down; he had his knee on my chest; I called out ``Murder, come and help me;" some timely hand came to my rescue, or else I should have been killed.

Cross-examined - I didn't like Mr. Knowles's conduct; I went there with the intention of hissing Mr. Knowles; I saw Mr. Hayes standing by the side of me, and I said to Mr. Hayes, ``Now I came here to mark my approbation or disapprobation of this evening's performance, and I desire you will not molest me, as I paid my money to come in;" upon which Mr. Hayes knocked me down; I had a stick in my hand; I always walk with a stick of an evening to protect myself; I have seen Douglas played; I did not like Knowles in Glenalvon, and I hissed him; I went there with the intention of hissing him; I have no private feeling against him, exactly, but I dont [sic] like the man; I am sure there was no female on the stage I went to hiss; I consider Mr. Knowles a servant of the public, and therefore he ought to suit himself to the public taste; I have had a touch at acting, but I dont think I'm a good actor; I have seen Douglas played at home, and I didn't like Knowles either as a public man or a private individual; I didn't ask the plaintiff to drink a bottle of wine with me; I swear I did not, positively; I dont  think I did; I cannot say whether I did or not.

Re-examined - I am a bit of a patron of the stage; I have a little itching that way myself; Mr. Knowles didn't play the part of Glenalvon to my taste at all.

George Moss, sworn - I was at the theatre on the night in question; I saw plaintiff and defendant there; Mr. Hayes was in the pit first, and he then came into the boxes; I heard him say, if any person hissed he would throw them into the pit; some one did hiss, and there was a general row; I saw Cohen on the ground, and I believe one of the Solomons picked him up; it was a general scuffle and a general row.

Cross-examined - Solomon, the defendant, was marked out as one of the most conspicuous parties; Cohen was amongst the parties the next day at a public house having some grog; I do not recollect Cohen individually asking plaintiff to crack a bottle of wine with him.

Vabian Solomon, sworn - I was at the theatre on the night in question; I heard Hayes and some of his party say, ``Throw the b--y Jews overboard;" I saw Hayes knock Cohen down; we had to place ourselves under the protection of three constables to prevent our being thrown into the pit.

Cross examined - I did not use any knife at the time; I did not make any preparation to defend myself; I did not go to the Theatre to interrupt the performance; I went there with the intention of hissing one of the performers, Mr. Knowles, because I considered he deserved it.

James Wells constable sworn - I was at the Theatre on the night in question; I saw the defendant there; he applied to me for protection; I did protect him - I saw several persons, natives, coming upon them, but I told them not to strike the defendant, and they did not; I saw no blows struck.

Cross-examined - I saw plaintiff's head bleeding, and undertood [sic] it was from the blow of a stick.

This closed the Defendant's case.

Mr. Foster then rose and animadverted at great length on the evidence that had been adduced on either side, and particularly adverted to the evidence of Mr. Cohen, whom he stated had given his evidence in anything but a straightforward manner, and came there with his mind biassed [sic] and prejudiced as a parcel of Jews would do one for another; indeed the only credible witness was Mr. Driver, whose evidence was of the most impartial and distinct nature possible.  He concluded by stating that the plaintiff had been very ill used, and told the Jury they were bound to return damages to an amount that would carry costs.

The learned Judge then laid a full view of the case before the Jury, and detailed the evidence in the most clear manner on either side - The Jury retired and returned a verdict for the Plaintiff damages one farthing - each party to pay their own costs.



[ 1] See also Australian, 20 March 1835.

On 7 March 1836, Levy, the proprietor and manager of the theatre, sued Knowles, one of the actors, in quasi-contract, and won damages of £8 4s. 3d.: Sydney Herald, 10 March 1836.

Published by the Division of Law, Macquarie University