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

Onions v Raine, 1837

sale of goods - oaths, religious objection to

Supreme Court of New South Wales

Burton J., 23 February 1837

Source: Australian, 28 February 1837[ 1]

Thursday. - Onions v. Raine. - This was an action brought to recover the sum of £29 for goods sold and delivered by the plaintiff to defendant.  On the case being called on, it was found that one of the principal witnesses was absent, upon which His Honor expressed his determination if the witness was not forthcoming in the course of give minutes, he would nonsuit the plaintiff.  Mr. S. Stephen then addressed the court, and called William Stannard, who deposed that he was a clerk in the Police Office; he recollected Mr. Raine being in gaol for a libel on Mr. Therry, and he called to see him during his confinement.  There were two persons present when I called, namely, the defendant's son and a Mr. Thompson.  In the course of some conversation which I had with Mr. Raine, he said that the debt of Mr. Onions' had been settled, as he had returned the articles he had had of Mr. O.  He then gave me some papers requesting me to take them to Mr. Onions for him to sign as an acquittance, and said that if I would obtain Mr.

Onions; signature he would reward me with something handsome for my trouble.  I took the papers and went to Mr. Onions, who declined to sign them, at the same time telling me that he would have his money if he laid out of it for two or three years.

Cross-examined - I did not hear that it was within half an hour of Mr. Onions being horsewhipped by Mr. Raine, that he had him arrested; I knew that Mr. Onions was charged with, and committed for perjury, on that occasion; Mr. Raine lent several men to Mr. Onions, occasionally; drew a transfer at the instance of both parties for a blacksmith from Mr. Raine to Mr. Onions, which was not sanctioned by His Excellency; also drew up several loans, as prisoners were allowed to be lent for a month at that time.

James Callaghan, on being put in the box, objected to being sworn, on the ground of religious scruples.  He admitted that he belonged to, and was a communicant of the Church of England; although he did not believe in the whole of the thirty-nine articles.  He had received £17 for his expenses before he left Bathurst.

Mr. Justice Burton - Why did you not scruple to take that?

Witness - I did not demand it.

The witness appeared obstinate, although the plaintiff's case rested in a great measure on his testimony.  Notwithstanding the observations made by the court, and the professional gentlemen, he would not be sworn, and was ultimately committed to the custody of the Sheriff.

For the defence, Mr. Windeyer in addressing the Court and Assessors, repudiated Mr. Onions' conduct in the strongest terms; he said that plaintiff did not expect to obtain a farthing by bringing the action, it was only to save any little character he had, after the oath he had taken; for which oath he stood committed for perjury, but was not prosecuted, by the Attorney General for various reasons best known to himself.

Mr. Raine, Jun., proved to the goods being ordered by his father, that Mr. Onions took six cooper's jointers in part payment, that after his father came to reside in Princes-street, the things ordered from Mr. Onions were laid out in the yard, together with the cooper's jointers, the defendant asked Mr. onions if he would be satisfied with taking the articles back which he had furnished, together with the cooper's jointers as an equivalent for the debt, as he had no other way of paying him, with this proposition Mr. Onions appeared perfectly satisfied, and the whole of the things were sent in a cart to the plaintiff's whither witness accompanied them, he had seen them in the shop subsequently; defendant had dealings with plaintiff after; the receipt before the court was for knives and forks purchased by defendant, and for which witness paid; they amounted to £1; Mr. Onions said nothing about any old debt; heard his father tell Stannard while in gaol, that he had settled with onions, by giving up the articles he had purchased; heard him desire Stannard to get the bill from Mr. Onions, he also took some papers with him to get receipted; never heard his father say that he would make Stannard a handsome present if he could arrange matters for him.

Cross-examined. - To the best of my belief I have given the sae account of the transaction to-day as I did at the police office; I have no recollection of seeing the letter now handed me before; I was not aware that my father was to derive any benefit by lending the blacksmith to Mr. Onions; he had him three and four months.  The jointers were worth about six pounds.

By the Court - What place of worship do you attend?  St. Phillip's Church. - What time were you last in any church?  It is some time;  How long?  It may be about twelve months; I have been at Hobart Town. - How long have you been from Hobart Town?  About two months. - And you have not been at any pace of worship since?  What age are you?  Twenty-two.

His Honor - I ask these questions for the purpose of satisfying the Assessors, as there appears something extraordinary in his evidence.

Mrs. Raine examined - I belong to the Established Church, and am 76 years of age; I recollect Mr. Onions coming to Prince-street to my son's house; he went into the yard and viewed the goods; and on re-entering the house he expressed a wish that every one of his customers would behave as honourable as Mr. Raine.

Cross-examined - We have talked the matter over and over again, often; there is plenty of pen and ink in my house; if you ask me until to-morrow morning I can tell you no more; you only ask these questions to plague me; I know of nothing being said about a government man; they had some rum and water to drink when Mr. Onions called; I swear positively that no person ever tendered a bill at my son's house for £29, on the part of Mr. Onions.

In answer to a question by Mr. Windeyer - When we were at Parramatta we went to church every Sunday, and received the Sacrament from Mr. Marsden; since we came to Sydney I have been so ill as to be unable to leave the house.

His Honor here ordered Mrs. Raine to be conveyed to the Judge's room, and Mr. Raine to remain in Court.

Thomas Brown, examined - I have been very ill for the last three weeks; I am a native of the colony; I worked for Mr. Onions about three years back; I do not recollect Mr. Onions doing any work for Mr. Raine; I never enquired who he got his orders from; I recollect seeing some iron work come back to the shop that I made, but where it came from I could not say, the work I knew to be my own; I have no recollection of any work coming back from Mr. Raine.

Thomas McLaughlin - I am assigned to Mr. McIntyre; in 1834 I was assigned to Mr. Raine; I recollect Mr. Onions coming to examine some iron work in the yard; the iron work was taken away next day, but I cannot tell where it was taken.

Mr. Burton proved to a row having taken place in his house between plaintiff and defendant, in consequence of the former calling the latter a swindling scoundrel, about some money that he said he owed him.

Mr. John Terry Hughes, called on part of the plaintiff - In any case wherein the interest of young Mr. Raine's father is concerned, I would hesitate to believe the son on his oath; I speak from a particular knowledge I possess of the parties.  In his cross-examination the witness said that he spoke from the influence the father possessed over his son.

Mr. Windeyer, in reply to the last witness, spoke in no measured terms of the appearance of Mr. Terry Hughes in the witness-box, on behalf of Mr. Onions, to repudiate the testimony of young Mr. Raine, in what the counsel termed Mr. Onions' perjured case.

Mr. Sydney Stephen, for the plaintiff, replied generally and at considerable length, in the course of which, having stated that the defendant's goods were taken n execution for a fine levied in a case of libel brought against him by Mr. Commissioner Therry, -- Mr. Justice Burton reminded Mr. Stephen, that in the case he alluded to there was no fine, owing to the poverty of the defendant, the Court being of opinion that if a fine was levied it would militate against the interests of his creditors.  Mr. Stephen here remarked on the rational and probable account given by the witness Stannard, as contrasted with the testimony of Raine, junior; the absence of the man Cannon, a prisoner of the Crown, who was said to have delivered the goods to the plaintiff, he was absent; he was the best evidence they could adduce, but he was not to be found.  Why not! - because they did not choose to look for him, otherwise they could easily have traced him by applying at Hyde Park Barracks.

Mr. Justice Burton then proceeded to address the Assessors, but before so doing he directed that Mr. Raine, junr., should be brought into Court for the purpose of hearing what fell from him (the Judge).  In his summing up, His Honor observed, that in this case it could not be denied that the most atrocious perjury was practised either on one side or the other; he would put before them the testimony of the different witnesses; he would place them in opposition, in order that they (the Assessors) would be enabled to judge of the degree of credibility to which they were entitled; whether it was the natural disposition of the elder Raine, or owing to some unfortunate circumstances, he had the misfortune to appear very frequently in that Court, it was hard for him to say, but such was the fact.  It was an unfortunate circumstance to see Mr. Hughes brought forward, and to hear his testimony with respect to Mr. Raine, junior.  Mr. Hughes could have no interest in the matter.  It was unfortunate, he repeated, to see a young man of 21 or 22, just springing into life, labouring under such a charge; but the fact could not be concealed that it was the first time this young person's credibility was doubted; the infirmity of the father may extend to the son, there have been numerous instances of such being the case.  With respect to the religious observance of some of the parties, he had put the question, and he did so the more from an impression that many others would have been examined.  Having recapitulated the evidence, the Assessors found for the defendant.

His Honor then directed that Frederick William Stannard should stand committed to take his trial at the next Criminal Sessions for wilful and corrupt perjury; and Samuel Onions for subornation of perjury.  Mr. Raine, the elder, and Mr. Raine, the younger, together with the Assessors, were bound over to prosecute.  They were subsequently, on the motion of Mr. Sydney Stephen, admitted to bail - Onions in £500 and two sureties of £250 each; Stannard in £100 and two sureties of £50 each.

Mr. Justice Burton then directed that Callaghan, ordered to be committed in the early part of the day for declining to be sworn, should be set at large, observing that he was satisfied with respect to his religious scruples.

[The above report is taken from our contemporary of the Gazette, our own reporter having been prevented by unforeseen circumstances from being present.]

Notes

[1 ] See Sydney Gazette, 25 February 1837, which was the initial report.  This is typed from the Australian because the copy is clearer.  On 28 February 1837, the Australian also reported the following as having happened on 24 February, the day after the trial: ``Before the business of the day was entered upon, Mr. Stephen rose and addressed the Court to remove an impression which he understood had arisen from his remarks yesterday, during the trial of Raine v. Onions that a certain bill of sale was a collusive one; the bill of sale referred to was (he was instructed to declare) a perfectly fair and bona fide transaction.  His Honor replied, that it was his impression that a slur was intended to be thrown upon the document alluded to, but that, as its validity or honesty had no connexion with the merits of the case before the Court, he did not feel it his duty to make any remarks relative thereto."  (The judge on this occasion was Burton J.)

On the hostile litigation between these parties, see also R.v. Onions, 1837.

Published by the Division of Law, Macquarie University