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

Betts v. Hughes [1838] NSWSupC 12

assault - Marsden family - damages, assessment of - damages, compensatory - damages, injury to feelings - gentlemanly conduct

Supreme Court of New South Wales

Burton J., 26 February 1838

Source: Sydney Herald, 5 March, 1838[ 1]

Betts v. Hughes. - Mr. Windeyer opened the pleadings.  This was an action of assault, damages laid at £1000.  The defendant had suffered judgment to go by default.

The Attorney-General stated the case.  After a few general remarks he said, that the plaintiff (who is the son in-law of the Rev. Mr. Marsden,) had been to Bathurst, to attend the funeral of Mr. Thomas Marsden, Miss Marsden. Mr. Charles Marsden, and Mr. Samuel Marsden.  The whole company stopped on the road at Go don's inn, where they found the only room in the house that could be occupied by Mrs. Marsden, in the occupation of Mr. Hughes, the defendant, and as he would not give it up they were compelled to proceed to the next stage; although it put Mrs. Marsden (who was very tired, having travelled upwards of forty miles) to great inconvenience.  They proceeded to Murray's inn, where they were followed by Hughes, who walked into the room and put his back to the fire in the most impudent manner; Miss Marsden complained to Mr. Betts, who went to the landlady, and she requested Hughes to leave the room; but he said that room would do for him, and although she told him that there was another room for him and that his tea was ready in it, he refused to go out.  Mr. Betts told him that his conduct was very unhandsome, and Mrs. Marsden remonstrated but without effect. Mr. Betts left the room for a few minutes and was followed by Hughes, who said, that he had a good mind to ram his fist down his throat; Mr. Betts went into the room again and was followed by Hughes, when Mrs. Marsden said, that as Hughes persisted in occupying the room she would go another stage, and accordingly, although one of her children was undressed, she took the child without dressing it and travelled to the Weatherboard, seven or eight miles further on, and arrived there at a late hour of the night.  Mr. Betts and Miss Marsden remained at Murray's, and were much surprised that Hughes did not appear, but it seemed that as soon as Mrs. Marsden had gone, Hughes followed her, and when Miss Marsden and Mr. Betts arrived at the Weatherboard the next morning, they found Hughes close to Mrs. Marsden's room door, and heard that in order to carry his system of annoyance as far as possible he had occupied the room adjoining Mrs. Marsden's, and had spent the greater part of the night in drinking and carousing.  Mr. Betts went to speak to Mr. Charles Marsden, when the defendant Hughes came up to him, and after using much abusive language went behind him and struck him in the mouth, saying "take that", and immediately got upon his horse and rode away.  The learned gentleman concluded, by saying, that if he proved his case as he had been instructed, he had no doubt the Assessors would teach the defendant that men like him, who were never intended by nature for gentlemen, and had neither the manners nor education of gentlemen, but only relied on their wealth, could not insult and assault real gentlemen without being made to pay dearly for it.

The first witness called was -

Miss Martha Marsden, who said, that on the 14th August, she was on her way down from O'Connell's Plains, where she had been attending the funeral of her brother, Mr. Thomas Marsden.  The party consisted of Mrs. Thomas Marsden, Mr. Betts, Mr. Samuel Marsden, Mr. Charles Marsden, Mr. Plaistowe, and herself. On the arrival of the party at Gordon's they found Mr. Hughes there, upon which Mr. Charles Marsden said, they had been go on to the next stage, which they did.  The witness and Mr. Betts went to Murray's inn, about eight miles further on the road, where they engaged beds for the party and ordered supper; before the rest of the party arrived Mr. Hughes arrived at the inn, and went directly to the room where the witness was waiting for Mrs. Marsden; she went to Mr. Betts and complained of the inhuman treatment, and at MR. B's request Mrs. Murray went to Hughes and told him that his supper was ready in another room, but he said he belonged to the company, that he was very comfortable, and would not go: when Mrs. Marsden arrived she remonstrated with him, but he merely sat still on the fender and refused to move.  Mrs Marsden with the advice of her brother resolved, to go on to the next station, the Weatherboard, which she did, taking with her the child which the witness had in the mean time undressed. The witness and Mr. Betts agreed to remain all night at Murray's, and join the party at the Weatherboard the next morning, which they did, as the witness entered the house she saw Hughes leave it, and in a few minutes afterwards Mr. Betts entered with his mouth bleeding, saying that he had been struck by Hughes.

In cross examination this witness admitted that Mr. Hughes had been on terms of intimacy with some members of the family, and she believed with the plaintiff; she was aware that there was a quarrel between them, but the plaintiff never told her the particulars, but she heard Mr. Betts tell Mrs. Marsden that Hughes had not acted like a gentlemen; she knew that Mr. Hughes had been taken before the Police, at Parramatta, for threatening to horsewhip Mr. Betts.

Mr. Samuel Marsden corroborated the evidence of Miss Marsden up to the time they left Murray's; on their way to Weatherboard he said they were joined by Hughes who took a short cut and arrived at the Weatherboard before them; Mrs. Marsden went to her bed-room, and Mr. Hughes admitted that he had not been admitted to join the party.  Although they were in the next room to Mrs. Marsden, and he was particularly requested to keep quiet, he was very boisterous the whole night, and threw the mattresses and basins about the room. the next morning, a few minutes after Mr. Betts's arrival, the witness and Messrs. Charles Marsden and Plaistowe were standing talking to him at the stable door, when Hughes came up and said to Betts, the first time I meet you in the bush I will give you a thrashing, and would do so now if it were not for the ladies - take that, at the same time striking him a blow on the mouth which made his lips bleed.

Mr. Foster addressed the assessors in mitigation of damages.  He said that, so far from his client being a low fellow, as the Attorney General had insinuated in his opening speech, he was a very respectable man, and had brought out letters of recommendation to a clergyman in this Colony by whom he was introduced to Mr. Marsden's family, and finally, entered into some sort of partnership with Mr. Betts.  They had a quarrel, and Mr. Hughes finding that Mr. Betts had been injuring him in the estimation of the family of Mr. Marsden, with which, for particular reasons he wished to stand well, he endeavoured to come to an explanation and state his side of the story, but was not allowed to do so, and he certainly had, in a moment of irritation, struck Mr. Betts a blow.  He had been exposed in the Parramatta police office, and had allowed judgment to go by default, and he considered that the lowest damages the assessors could give would be as much as the case deserved.

His Honor, in putting the case to the assessors, said that this being an undefended case the plaintiff was entitled to their verdict; but, in assessing damages, they must not take into their consideration the offensive conduct of the defendant towards the ladies - however improper that conduct might be, he could not be visited for it there.  The moderation of the gentlemen of the party was certainly almost incredible, and he wondered how four gentlemen could allow a single individual to act as he had done; indeed, if he had known the whole circumstance of the case, he should have expected the present defendant would have had to bring an action for being thrown out of the window, instead of being the defendant.  In assessing damages, the assessors must give such amount as they considered would compensate the plaintiff for the injury that he had received, and shew parties that if when assaulted they will appeal to the law, they may depend upon receiving compensation not only for the injuries done to their feelings, for the law allows compensation to be given for insult.  Verdict for the plaintiff - damages, £50.

Counsel for the plaintiff, the Attorney General and Mr. Windeyer; for the defendant, Mr. Foster.

 

Notes

[ 1]See also Sydney Gazette, 1 March 1838.

Published by the Division of Law, Macquarie University