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

R. v. McDermot [1840] NSWSupC 48

trial by jury, jury member, non-attendance by

Supreme Court of New South Wales

Dowling C.J., Willis and Stephen JJ., 15 September 1840

Source: Sydney Herald, 16 September 1840[1]

The business was commenced by calling over the list of jurymen who had not answered to their summonses at the preceeding sessions, when between sixty and seventy jurors were then fined for not having attended.  Mr. Henry McDermot being called on to show cause why he should not be fined in £5, for non-attendance to a summons to act as a common juror.  Mr. Windeyer rose and stated that although the sum was apparently a small one, Mr. McDermott had instructed him to oppose its infliction on principle, at the same time his client in doing so had no intention of acting disrespectfully to the Court; he objected to answer the summons, because he was not properly designated in it.  He held in his hand an affidavit by that gentleman in which he distinctly swore that he had for seven or eight years previously been carrying on business as a merchant in Sydney, and that during the last six years his named had been published as a merchant, and of course he was entitled to be, and had been summoned, not as a common but as a special juror, and had repeatedly acted as such, and even in the last published list of special jurors his name appeared as such, but the Sydney magistrates had altered the addition to his name and in fact made him a landholder by which, he was of opinion, they had intended to put some disrespect upon him, as by being returned a landholder, in the way he had described, he was liable to be summoned only as a common juror, which he was determined to resist.  His client, he maintained, was indirectly injured by such an alteration in his designation, inasmuch as it was calculated to lower him in his rank in society.  There was another reason why the infliction of the fine was resisted, and that was, in order to teach those young magistrates who did not know the exact line of their duty, that they were not makers of laws, but merely ministers of them; he also contended, that by thus altering his client's designation, they had erected themselves into a Court of Honor, and that was what they could not legally do.  In his opinion, the whole had been merely caused by accident, and he himself had exonerated the magistrates from having at all intended to do anything to deteriorate from his client's honor and rank.  It might appear that Mr. McDermott had adopted the present course in order to gratify his feelings; and, even admitting it to be so, he had a perfect right to have that done, because the law was on his side - in order to prove which, he cited a case in which one individual had been styled a gentleman, and he having satisfied the Court that he was no gentleman, the Court gave him the benefit of it.  He also cited another case, in further support of his position, in which one party objected to his adversary being styled a gentleman, and having satisfied the Court that his adversary was not a gentleman, but had a trade or calling, the court also held the objection good.  His client, however had not only his claim established by the practice of the Courts in Britain, but it was the common law right of every British subject to have his designation properly set forth by the proper additions; and, where there were several of them, and only one was to be used, it was the invariable practice to set forth that which was most honorable.  In conclusion, he confidently submitted that his client was fully entitled not to have the fine inflicted.  Their Honors deliberated for a short time on the subject, when the Chief Justice stated that the Court would take time to advise on the case, and would give no order to the Sheriff at present.


[1]              See also Australian, 15 February and 17 September 1840; Sydney Gazette, 18 February 1840.

Published by the Division of Law, Macquarie University