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

Maher v. Jones [1841] NSWSupC 27

assault, civil action - personal injury

Supreme Court of New South Wales

March 1841

Source: Sydney Herald, 16 March 1841

MAHER V. JONES. - This was an action brought to recover compensation for an assault alleged to have been committed by the defendant, Mr. William Jones, bookbinder, stationer, and bookseller, Brickfield Hill, on the plaintiff, Mr. Timothy Maher, general dealer, also residing near the bottom of Brickfield Hill. The assault was charged as having been committed on the 2nd of December, 1840. Counsel for the plaintiff, Messrs. Therry and Windeyer; attorneys Messrs. Chambers and Thurlow. Counsel for the defendant Messrs. a'Beckett and Foster; attorney, Mr. G. R. Nichols.

            Mr. Windeyer opened the plaintiff's case, and Mr. Therry followed on the same side, and gave an outline of the case, from which it appeared, that the plaintiff having purchased some paper from the defendant, and after having had it a considerable time in his possession, he went to the defendant's premises, and complained of the quality, when the defendant, in a violent rage, grossly inuslted the plaintiff by taunting him with the circumstances in which he (the plaintiff) had arrived in the Colony; also, taunting him about being a Roman Catholic, and, in addition, grossly maltreated him by laying hands upon him, and thursting him with unnecessary violence into the public street. The learned counsel called upon the jury to estimate the damages, not only by the violence used on the occasion, but also in forming that estimate, to take into account the violence done to the plaintiff's feelings by the insulting language which had been applied to him. He also informed the Court that the case had been taken before the Magistrates (Messrs. Windeyer and Innes) at the police office, but as these gentlemen could not agree on the amount of damages, they would not pronounce any sentence in the case; at the same time informing the plaintiff that by their thus leaving the case undecided, they left it in his power to look for redress in another place, and it was in order to obtain the redress that he now brought the case before the Court. The only witness examined was a convict named Joseph Lyons, assigned to Dr. Burke, who appeared in a very handsome dress, sporting a couple of gold rings on his fingers, which he appeared very anxious should attract the notice of the audience. The account he gave of the affair was that on the day laid in the declaration, between six and seven o'clock in the evening, while standing in his master's shop door, his attention was attracted to a shuffling of feet in the defendant's shop, and on looking in that direction he observed the defendant outside the counter, shaking the plaintiff, the former having hold of him, and threatening to shake the said defendant out of his skin; that on a third party (whom the witness did not know) interfering, the defendant quitted his hold of the plaintiff who then went away down the street, and about a couple of hours after he came to Dr. Burke's shop and showed the witness that his shirt was torn, which he told him had been done by the defendant. In cross-examination the witness refused to answer whether he had come free or bond to the Colony, unless ordered to do so by his Honor; he also made the same excuse as to whether he was bond or free now, and asserted that he was a medical man, the dispenser of medicine in Dr. Burke's medical hall; he also swore that he sometimes was in the practice of performing surgical operations, and that he visited such patients as preferred him to others they were not acquainted with. He was not the visiting surgeon in Mr. Burke's establishment, that duty being performed by a young medical gentleman, recently arrived in the Colony, whose name the witness could not spell, but he knew that he was called Mr. Lardblistre; he was either a German or a Pole, and was indented in London, in Finsbury Square (which has four sides), at the same time that the witness was indented as a surgeon to Mr. Langmore, on the opposite side. He introduced Mr. Lardblistre to Mrs. Burke, after her husband's death, to manage the business for her. That gentleman had only been three or four months in the Colony, and the way in which he found out the wituess was, that he, Mr. Lardblistre brought out letters of introduction to the witness. He was not aware that Mr. L. had passed the medical board here, but he believed he had done so in London. The witness had studied medicine in London between three and four years, under Dr. Langmore of Finsbury Square, and had been, come November, four years in the employ of Dr. Burke, as his assistant and dispenser. He had never been at college, he had never walked the hospitals, he was not a Latin scholar, and he could not read Latin except what was connected with the prescriptions; but he could read them, and make up what they specified. He had not been in a public house during the day. He did not know Mr. Driver's. He was asked into the house over the way by a gentleman, to have a glass of ale; but did not remember whether he had any there or not. He did not recollect having been ordered out a short time since by Mr. Driver: it might have been the case. He did not recollect having been in any other public house during the day, but might have been. He went twice to get a snack at an eating house down the street; he might have had a glass of ale; he might have had two, three, or four during the day, but had not had any spirits. (The witness appealed to His Honor if he was not sober - His Honor said the Jury could form their own opinion, at the same time he should like to know how long he had been in the colony, when he admitted that he had been nearly four years in the colony.)  His Honor then informed him that he must say whether he came free or bond, when he admitted with great reluctance, that he was still a convict assigned to Mrs. Burke, and had been assigned to her late husband from Hyde Park Barracks, and that he had been at least twice sent to the new cells for punishment, once was for smoking in the shop. That he had been transported for felony, but declared that he was innocent, although found guilty, as it was somebody else who did it, and he was in company with another boy at the time it was done, the felony was done in Finsbury Square, and was stealing a purse; that other boy was now in the colony and could prove what he said to be true. In re-examination he swore that he had been upwards of seven years in the habit of making up prescriptions.

            Mr. Therry informed the court that this closed the case for the plaintiff.

            Mr. a'Beckett in reply on the evidence said, he felt convinced that it was the close of such a case, that had his learned friends on the other side been aware of the respectability of Mr. Lyons their only witness, they never would have brought it into court, as it was certainly the lamest one he had ever seen brought into a court of justice; he thought there was no case for a jury to decide on, but he would be content that it should go to them were it only to give them an opportunity of showing their opinion of the trumphery nature of the action. He then commented at great length on the testimony given by the plaintiff's witness, and the character of the evidence which had been extracted from him. If the jury could even believe him there was not a tittle of evidence to shew that it was a case which should have been brought before them. Even looking at the probabilities of the case, he thought that the first provocation must have been given by the plaintiff, as it was improbable that he should have acted in the manner in which Lyons had depicted him, unless he had been in the first place grossly insulted, and for ought that appeared to the contrary assaulted into the bargain.

            His Honor in putting the case to the jury characterised the action as being one of the most trumpery description, and said that before he had heard the learned gentlemen for the defence, he had had great doubts whether he should try the case at all, but he should leave it to the jury to say, whether they believed Lyons or not, as if they did they would award such damages as on the one hand as would meet the justice of the case, and would on the other show the public opinion of such actions being brought into Court, he also intimated that he should take care to prevent as far as was in his power the witness Lyons from being longer permitted to endanger the lives of the public.

            The jury retired for about fifteen minutes, and returned a verdict for the defendant; Mr. Foster said as the plaintiff had applied for the case to be tried by a jury, he hoped His Honor would certify for a common jury, when His Honor said he should under these circumstances most certainly certify.

Published by the Division of Law, Macquarie University