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Decisions of the Nineteenth Century Tasmanian Superior Courts

Kennedy v. Bent [1830]

libel - insolvency - fieri facias - Allenvale - Sheriff's officer, action by - new trial, procedure - damages, appeal against - damages, assessment of, libel

Supreme Court of Van Diemen's Land
Pedder C.J., 15-16 January 1830
Source: Tasmanian and Austral-Asiatic Review, 22 January 1830 [1]

Capt. Bell and Mr. Beaumont, Assessors.

This was an Action for libel, the Plea being justification. The Counsel for the Defendant first addressed the Court, the usual order of proceeding being in such cases reversed. Mr. Gellibrand stated this was an action against his client Mr. Bent, the Proprietor, Printer and Publisher of the Newspaper called the Colonial Times, for a L[i]bel . The facts, he said, were shortly as follow. In November 1828, Mr. Thomas Wells was declared Insolvent by the Supreme Court. Under that insolvency Messrs. Cooke and Mather were promised Trustees. On the 1st March 1829, the Act of Parliament, under which his insolvency was declared, expired. Up to that period the Trustees not having possessed themselves of the property of Mr. Wells, Mr. R. L. Murray, a Judgment Creditor, issued a writ of Fieri Facias, and caused the Sheriff to levy upon certain property of Mr. Wells at Allenvale. Mr. Wells gave notice to the Sheriff, that of the property so levied upon, a part belonged to his Insolven[t] Estate and was vested in his Trustees, and that the remainder belonged to other persons. Upon this, Mr. Murray entered into an Agreement with the Trustees and the Sheriff, that the property levied upon should be sold, and that the proceeds should remain in the hands of the Sheriff, until it was finally settled to whom they should be paid. Mr. Kennedy, the Plaintiff in the present action, who is the Under Sheriff, proceeded accordingly to Allenvale, where the levy was made, in company with Mr. Cook the Trustee and two other persons; Mr. Gellibrand stated, that he should be able to prove that he put up the property for sale half an hour before 12 o'clock, (12 o'clock being the hour appointed,) in defiance of the notice he had received from Mr. Wells the Insolvent. There were five lots; of these Mr. Cook purchased three, a horse, a cart and bullocks, and 300 sheep; and his friends Messrs Haywood and Marshall purchased the other two lots, another horse and a winnowing machine, at prices which he should prove to be nothing near the value. The horse [p]urchased by Mr. Cook for £13 10s. he sold next day for £30, and he exchanged the cart and bullocks which he purchased for £6, for the other horse which his friend Mr. Haywood had purchased for £9. Mr. Gellibrand stated, that he should shew that several Gentlemen went up to Allenva[l]e for the purpose of purchasing, but that although they arrived at 12 o'clock, or soon after, they found the sale was over. After this sale, the Article in question was published in the Colonial Times. - It was as follows 
"It is unquestionably a part of the duty of the Public Press to watch over, and notice when necessary, the conduct of Public Officers. The latter being the servants of those by whom their salaries are paid, have no right to expect to avoid censure when they deserve it, and there is no hand by which this can be so well administered as through the columns of a free and independent Newspaper.
From circumstances which have lately come to our knowledge, we regret to find, that however much individual interests may have been promoted, and perhaps private feelings gratified by the substitution of one name for another in the office of Under Sheriff, the Colonists have not been benefited by the change, so far as opportunities of judging have hitherto come before the Public.
We have good authority for saying, that upon a recent occasion in the Macquarie District, where a disagreeable duty devolved upon
 Mr. KENNEDY, he exhibited a precipitancy, and a disregard to the interests of one party, by leaning towards the other in a manner perfectly hew, and altogether irreconcileable with the impartiality which ought ever to attend the proceedings of justice. It is not necessary to enter into particulars, as we understand they are in course of being brought in another shape before the Supreme Court, [b]ut a slight hint, en passant, may be serviceable, and may prevent a recurrence of such indiscretion, as it cannot but be lamented has been shewn."
Mr. Gellibrand, as he read the article, commented upon every passage. He said, he was instructed to state in the plainest and most unequivocal manner, that in this article there was nothing in[t]ended to impute to Mr. Kennedy any thing either dishonest or dishonourable or corrupt. He then called the attention of the Court at considerable length to the very wide distinction which there was between attacks upon the conduct of public men, and upon the character of private individuals. He shewed the great consequence which, it was to the public that the conduct of public men in their public capacities should be open to the animadversions of the Press; and he insisted upon it that the real meaning of the article in question was strictly confined to the public conduct of Mr. Kennedy as Under Sheriff. Mr. Gellibrand then drew the usual distinction between the Liberty and the Licentiousness of the Press, which it is unnecessary to repeat; (we think it would save infinite trouble if the Counsel of both Plaintiffs and Defendants in Libel cases would cause these regular observations to be printed, ready to be given in at such parts of their speeches as might be considered appropriate;) he then stated that he should be able to shew that the whole of what was stated in the article complained of was strictly true; that he had acted with precipitation and indiscretion, no doubt innocently and unintentionally, free from any co[r]rupt of improper motive; and that having shewn this, he should have proved his pleas of justification. He lamented that Mr. Kennedy should have been so ill advised as to bring the present action, which compelled the Defenda[nt] to justify what he had said. Mr. Gellibrand concluded a very able and powerful address, by calling upon the Court to protect the property of unfortunate debtors from being sacrificed by the unfortunate debtors from being sacrificed by the indiscretion and prec[i]pta[t]ion of Sheriffs, and by reading the well known observations of Lord Ellenboro in the case of the King v. Lambert and Perry.
Certain documentary evidence was admitted and put in.
Mr. R. L. Murray. - I entered into an arrangement with the Trustees of Mr. Wells and the Sheriff, that the property levied upon should be sold and the proceeds remain in the Sheriff's hands until it was decided to whom it belonged.
Cross-examined by Mr. Solicitor General Stephen. - I have perused the article in question. I consider it to imply that Mr. Kennedy acted unfairly in the execution of his office as Under Sheriff, in shewing a partiality either to my interests, or to those of the Trustees.
Re-examined by Mr. Gellibrand. - I have had considerable experience in public writing, and I can come to no other conclusion than what I have stated. I have had many libels fathered upon me which I never wrote.
Mr. Rowlands. - I was Provisional Assignee of Mr. Wells. I had some conversation with Mr. Kennedy as to the Sale. He knew that Mr. Cook and Mr. Mather were the Trustees of the Estate. I knew of the arrangement made between Mr. Murray, th[e] Sheriff, and the Trustees. I have attended Sheriff's Sales half a dozen times. I never knew him to proceed immediately.
Cross-examined. - I have read the article in question. I consider it to mean that Mr. Kennedy leaned unfairly towards either Mr. Murray or the Trustees. I considered it to convey an imputation upon his character, that he shewed unfairness and partiality in his office. I come to this conclusion from considering the whole of the article.
Mr. Hayes. - I was Under Sheriff for nearly four years. I have sold repeatedly. I used to sell every thing, with few exceptions; 12 o'clock was the time usually advertised. In town, we used to wait 20 minutes or half an hour. In the country, I have sold at all hours from 12 to 3. Where there were not many bidders, I have sometimes not sold at all.
Mrs. Wells. - I recollect Mr. Kennedy being at Allenvale in August. I was not present at the sale. Mr. Kennedy came to the house previous to the sale. Mr. Cook and Mr. Haywood were with him. I saw a horse led out of the stable. I sent John Barry to him to delay the sale. I expected Abraham Hands and o[t]hers; I looked at my watch; it wanted nearly five minutes to 12 when the horse was led out. The sale was soon over. I did not compare my watch with any other watch. I told Barry what o'clock it was. I always keep my watch rather fast than otherwise. I had set my watch by Mr. George Steel's a day or two before; my watch also agreed withMiss Wells; her watch generally goes with mine.
Cross-examined. - The two watches, mine and Miss Wells's, went together, I cannot tell how far wrong my watch was when I set it by Mr. Steel's watch. I did not go to Mr. Kennedy to complain, although I had been conversing with him a very short time before the Sale begun. I could see nothing; there was nothing to see but the two horses. I cannot say how many person were at the sale. I never enquired; I did not count them.
Neils Bustian. - I went up to Allenvale to the sale. My watch gains 5 minutes a day. I know Abraham Hands; I set his watch by mine. When we got to Allenvale the sale was over; it was either 20 minutes or ½1 past 12. I heard nobody say what o'clock it was in presence of Mr. Kennedy. I went to buy the cart and bullocks and the horses if reasonable. I would have given £30 for one horse, £15 for the other, and £12 for the cart and bullocks; I knew them. There wee about ten or eleven persons present including one man belonging to the house.
Mr. Atkinson. - I went to the sale; when I arrived it was over; it was about ½ past 12. I spoke to Mr. Kennedy; I said I thought it was over too soon. Mr. Kennedy offered to put up the things again, but I declined it. Mr. Cook the purchaser made the same offer in presence of Mr. Kennedy. I had no desire at all to have them put up again.
William Rennie. - I went up to the sale; I went to accompany Mr. Atkinson. It was ½ past 12 by my watch when we got there. I do not know whether my watch was right. I purchased a horse from Mr. Cook for £30, after the sale. I would have bid at the sale as much for the horse. I was aware that Mr. Wells said he was lame to prevent people bidding for him:
Abraham Hands. - I went up to the sale. I saw Mr. Atkinson, Mr. Barker, and Mr. Rennie. I had my watch set by Mr. Bastian's. When I got up there the sale was over and it would be 10 minutes or a quarter of an hour to 12. My watch gains one quarter in 24 hours. I cannot say whether the horses were sold or not, except that Samuel Wells said, my horse is sold. I think it was a quarter of an hour when Bastian and Atkinson arrived after I was there. There were sheep sold afterwards, I cannot say whether the bullocks and cart were sold or not.
Mr. Rennie re-called. - I told Mr. Kennedy that I had a letter from Mr. Atkinson that he meant to attend the sale. I did not say that he meant to purchase.
Mr. Samuel Wells. - I recollect the sale at Allenvale. I was present. I am sure it was before 12 o'clock. In the first place, Mrs. Wells sent word by John Barry that it was not 12; in the next place, I know by the sun when it is 12 o'clock; and in the next place, because I saw Abraham Hand's watch after the sale was over and it wanted 10 minutes to 12. The fair value of the bullocks, cart, bows, yokes, and chains was £23. I think the grey horse was worth £40, and the other £25.
Cross-examined. - I did not give a very good character of the horse that was sold. It was part of it, a true representation. I was instructed by my father to forbid the sale. He said it was illegal.
Mr. John Marshall. - I reside near Allenvale, and was at the Sale. I had not a watch with me. I do not when the sale began. I saw the property sold. It did not fetch a fair value, nor any thing near it. I bought a winnowing machine for £5; it was new; it was not produced. It was asked of Mr. Kennedy whether it was necessary to produce it; he said no; I do not know why it was not produced. I did not see a watch all day, nor did I hear the hour mentioned.
This was the case for the Defendant.
Mr. Solicitor General Stephen addressed the Court for the Plaintiff in a speech of FOUR HOURS continuance. It would of course totally exceed our limits, although we have a verbatim report of it, were we to do more than give a mere outline of an address, in which the learned gentleman exhibited the greatest zeal, talent, energy, and eloquence.
This is a case, said Mr. Stephen, the very first of the kind in the Colony, in which the Defendant has by the adroitness and ingenuity of his Counsel become possessed of the great advantage of telling his story first. He has so contrived it, that he the Defendant, brought here to answer to the Plaintiff for a gross attack upon his character, shall have the infinite advantage of again attacking him, by the very able address which you have heard from Mr. Gellibrand, and of endeavouring to support that attack by bringing before you a mass of evidence, the value of which to be sure I shall be able to shew you by and bye, and in addition to these, he has again the advantage, and I need not say how great it is, of having Mr. Gellibrand to reply to all which I can say to you, and to all the evidence which I may bring before you.
I shall endeavour to shew you what is the real meaning of Mr. Gellibrand's defence. He tells you that the article, which I say is a gross, and malicious, and false attack upon the character of my client, is a mere mild reproof, a mere gentle admonition; a mere little sort of kind advice from Mr. Bent to my client how he shall comport himself in the performance of his duties. And this, Mr. Gellibrand tells you is of invaluable advantage to the public. What would become of us he asks you, if the public officers were not to be subject to these little admonitory paragraphs; bringing to his aid the old words of the liberty of the Press.
What Gentlemen! is this Nimrod of Printers, this Franklin of this Hemisphere, as he describes himself in his Journal, this wealthy proprietor of this most popular Journal, as he says it is, the circulation of which he states to exceed that of all others, the Government GAZETTE excepted; is this man, this Mr. Bent to dare to put forth his calumnies to attack public and private character, and then to tell you that it is done in mere kindness, a little gentle reproof to public officers, but for which, and for the grand display of talents of which he boasts, the Colony would be ruined! But Gentlemen, although Mr. Gellibrand has had his turn, and that the impression which his able address made upon you cannot but be great, it is now my turn! And disadvantageous to my client as has been the course so skillfully adopted by Mr. Gellibrand, yet I look with confidence to you, as a Jury of the country, for such you are, bound by the same laws, living under the same Government, and subjected as your decision will be to the same consequences as would be that of a Jury in the ordinary acceptation of the term. Mr. Gellibrand has read to you the case always read in libel cases by both Plaintiff and Defendant; because the words of the learned Judge are so divided, that unless the whole is taken together, it can apply to either case. He has read to you the first passage of that celebrated charge. But I will read to you the second part of it, which you will see is exactly what I wish you to bear in mind. Lord Ellenboro' says, Mr. Gellibrand has told you, that fair and honest remarks upon the conduct of public men is unobjectionable; but he adds, go one step farther, attribute any thing to motives, and the observations which were before harmless become highly libellous. Now Gentlemen, I am perfectly ready that you administer that scale to this case, that you should try it upon that principle. Is not Mr. Kennedy distinctly charged with partiality in his office? Is it not in evidence before you, from the Defendant's own witnesses, that such was the meaning they put upon the libel! And in charging him with partiality, does he not go to motives? Can there be a doubt of this? (Mr. Stephen dwelt upon this part of the case with great force and effect; and made evidently a great impression by the application which he made of Lord Ellenboro's charge to his own case. He then returned to the advantages which Mr. Gellibrand had obtained over him by his mode of pleading.) Great as are these, said Mr. Stephen, yet he has not obtained them without some little drawback. He has by his pleas distinctly admitted my whole declaration. He admits that all which I charge him with has been done by his client; but he says, it has been properly done; he is justified in so doing. But he denies that he intended to impute corruption or moral guilt to my client. But Gentlemen, have not Mr. Murray and Mr. Rowlands, his own witnesses, told you what they thought of it! I shall besides bring before you a host of witnesses who will confirm their opinions; who will tell you, that they considered it to impute corruption and partiality to Mr. Kennedy in the administration of his public duties, and that it was so understood by all persons with whom it formed a topic of conversation; and this I need not tell you, is nearly the the[sic] whole c[o]mmunity in a Colony like ours, where unfortunately it is too much the practice for people to attend more to the concerns of others than their own. Mr. Gellibrand has called upon you to protect the rights and liberties of the Press. He has told you in very eloquent terms of the importance of supporting fair discussions; and Mr. Bent, in a second article, speaks of the former one as follows.
" A new light upon what is considered the liberty of the Press in this Colony, has been exhibited during the present week, by a threat held out to us of prosecution for libel, because, in the exercise of our duty as guardians of the rights and privileges of the Public, we thought it right to notice, and comment upon the mode in which a branch of the public service was lately performed by one of the servants receiving the public pay. If this doctrine be once admitted, away with all connexion in the shape of controul between those who are paid for services, and those who incur the expense. We shall next expect to see a domestic, who has been censured for misconduct, turn round and say, we libel his character. We shall look for no other result to any flagrant piece of injustice, or impropriety, which may be committed by a public functionary, than for him to exclaim, with uplifted hands, in reply to any merited animadversions, Gracious! what a libel! I will instantly order my Attorney to commence a prosecution. But thank Heaven, although in a distant Colony, we are Englishman, and as such permitted the use of free discussion, and in spite of any threatened libels, whenever we see public men either exceed, or not act up to their duty, they may be assured we shall not be slow to mark it; and for so doing, we are satisfied we not only merit the approbation of our fellow Colonists, but the gratitude of higher powers, for assisting to maintain in good order, all the wheels of our political machinery.
With regard to the case in point, our charge went no further than to say that a precipitancy and undue leaning toward one party in preference to the other had been manifested. Let the facts speak for themselves. A sale under the Sheriff had been advertised for a particular day at twelve o'clock. Previous to that hour, the Under Sheriff arrived on the ground, accompanied by two persons, with whom, we are informed, he had spent the preceding evening, and immediately proceeded to sell. They were the only two buyers, besides a neighbour who purchased a trifling article; and the consequence was, that sheep were sold at one shilling and threepence per head! A horse, not the property of the defendant, fetched nine pounds, and another, also not the property of defendant, realised only thirteen, which was presently re-sold for thirty pounds, being intrinsically worth a much larger sum. At ten minutes before noon, (twelve having been the house fixed), four respectable persons arrived at the place, one of whom was prepared to prove the identity of the bulk of the property as not belonging to the defendant, but were lac[on]ically told they were too late, as the sale was over. There is no difficulty in proving the whole of this, as we have seen the testimony of several persons of great respectability, whence our information has been obtained; and having said thus much, what, we will enquire, so fitting as the Public Press to give a few words of gentle caution, which might prevent a recurrence of such indiscretion?
Let those who talk of libel, when public characters receive such admonitions as we last week bestowed upon MR. KENNEDY, look at the English papers, and see how these things are done at home. There are some who would indeed fetter us, but we pursue an even course, much more readily praising than blaming, and from which nothing will turn as either to the right or the left."

And now, Gentlemen, let me ask you what you think of this. Mr. Gellibrand read this article, and applied to it, with great skill, the usual observations as to the liberty of the Press. He read it down to a particular point, and there he stopped. And are you, Gentlemen, to also stop in the performance of your scared duty! Are you to stop, and suffer my client to be subjected to these imputations from this "free and independent" newspaper, as Mr. Bent tells you is his. When I read this, I cannot repress my indignation; I cannot express myself in terms adequate to what I feel at such a prostitution of language. What Gentlemen, this newspaper - (holding it up) this newspaper putting forth what you know it puts forth, to be called free and independent! Has Mr. Bent the effrontery to make use of these terms? I say, Gentlemen, is the prostitution of every good principle, every honorable and manly feeling, freedom and independence? We often hear of the influence of men in power, but I say, that the influence of half a dozen men, bankrupt in fortune and in character is infinitely more dangerous. (Mr. Stephen spoke here with extraordinary energy and animation, and his address produced a very powerful sensation. We forbear repeating the strong terms in which he animadverted upon the manner in which theColonial Times is conducted. It is sufficient to say, that he spoke of it, with the very utmost scorn and abhorrence.) Gentlemen continued Mr. Stephen, you are not to try this question upon insolated passages. You are not to look at little expressions thrown in artfully here and there of "regret" and of sorrow that such and such thing should exist, which Mr. Bent only mildly censures and kindly reproves. You are to look at the whole, and decide what in the exercise of you plain good sense and understanding, appears to you to be the real meaning of the writer. He states broadly that Mr. Kennedy was partial. Now no public officer can be partial without being corrupt. No twisting and twining, no ingenuity of argument or power of language can persuade you into the admission of such a perversion of terms, as that a public officer can lean to one side without injustice to the other. Gentlemen, the Plaintiff is a young man just entering upon life. He is a stranger, and friendless, and unprotected. New in his office, he has to encounter at his first outset in public life this most ungenerous attack upon him. And when notice is given to Mr. Bent that this Court will be appealed to, what does he say? I do not, Gentlemen, refer to the second attack in order to induce you to encrease whatever damages you may consider it your duty to award to my client for the libel set forth in the declaration; that, I could not be permitted to do. But I am permitted, and I do read it to you, to shew you the spirit in which the first article was written, the feeling which then existed towards my client. And what does he say? Does he express regret for the injury he has done, and endeavour to heal the wounded feelings of Mr. Kennedy? On the very contrary, he boasts of it! He tells of his great power and influence over the public mind, and in the way in which he assaults Mr. Kennedy, he adds tenfold to the original injury, deep and serious as it was.
Gentlemen, Mr. Bent tells you that his newspaper is free and independent. I am fully of opinion, that the fair and moderate discussion of public measure in the Public Journals is not only justifiable, but most beneficial; but base and detestable is that newspaper, which under the deceitful veil of public investigation, assails private character to gratify private malice, private hatred, and private revenge!No man shall tell me that any Jury can be found, who will suffer the private character of any man to be torn to atoms at the pleasure of such a man as this Mr. Bent. Who is he that he should dare to say, -- I am the Guardian of the public morals and of the public honour, -- I can trample upon the dearest feelings of any man because he is a public officer, -- I can put my foot upon his neck and laugh his agonies to scorn. Who is this Mr. Bent, that he should dare to compare Mr. Kennedy with menial servants? What are his pretensions that he should presume to make of himself the self elected guardian of the public virtue, and under such pitiful pretence to render his base production the vehicle of the most detestable attacks upon private character! If such a dreadful evil as this is to exist, if such a man as this Mr. Bent is to be permitted to put forth such an attack as that before you, with impunity; Gentlemen, if such a state of things is to be allowed, this country will be no longer a safe residence for any man!
Mr. Stephen then went through the evidence, commenting upon what he considered to be contradictions and discrepancies. He referred to the evidence of Mrs. Wells and her son, to which he said he should oppose witnesses by whom it would be directly contradicted.
In reference to the sale made by Mr. Cook, the Trustee, of the property he bought at the Sale, at a great advance, Mr. Stephen stated, he had a fact in reserve which he thought would somewhat surprise Mr. Gellibrand. It was that he could prove that Mr. Cook, the Trustee, had paid over to the Trust Estate the whole profit made by him of the lots he bought at the sale. Thus, that Mr. Murray instead of being favored, was the only person who had to complain. Mr. Wells' estate having had all the advantage of the proceeds of a sale made at less expence than attended sales made by the Sheriff.
Mr. Stephen then returned to the course of Pleading adopted. Mr. Kennedy said he, having had his feelings lacerated to the quick, was met in his action by an unusual difficulty. The course of pleading to which I have before referred was adopted, by which he must either come before you with great disadvantages, or subject himself to a most serious and injurious delay. If he had demurred to the six voluminous pleas of justification which have been put upon the file, he must have been driven from having a decision for several months, during which time he would have continued with this charge hanging over his head, open to suspicion as to his conduct in the public exercise of his office, and in consequence subjected to the most serious inconveniencs. He has preferred encountering all the disadvantages under which he this day labours, to any further delay. He throws himself and his whole case before you. He confides himself to your hands, in the most perfect reliance that you will award him such a reparation as upon a grave consideration of the case before you, you may find him to be fairly entitled to.
We have given but an outline of Mr. Stephen's impressive address; our limits, as may be supposed, prevent our giving entire a speech of four hours continuance.
The Chief Justice expressed himself so fatigued, after having sat twelve successive hours, that he adjourned the Court until to-morrow.

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SATURDAY. - Jan. 16.
 

Mr. Gellibrand admitted that the article in the second Newspaper referred to a notice of Action given by Mr. Pitcairn to Mr. Bent.
Mr. Cooke. - I am one of the Trustees of Mr. Wells's Estate; I attended the sale at Allenvale; there was an arrangement made between Mr. Murray and the Trustees, that the goods which the Sheriff had seized should be sold, and the proceeds retained by the Sheriff, until it was decided to whom they should go; I was of opinion, that it was expedient that the sale should go on, inasmuch as postponement would have encreased the expence; I travelled to Allenvale in company with Mr. Kennedy from New Norfolk; it was arranged that we should start together and breakfast at Mr. Haywood's; I gave notice to the Sheriff, that as Trustee, I should be present at the sale, and the sale began at about ¼ past 12; I have no hesitation in stating, that the sale commenced after 12; Mr. Kennedy made repeated applications to me as to the time; at 5 minutes before 12, he was going into the house by Mrs. Wells's invitation, to have lunch, and that in 10 minutes or a quarter of an hour he would commence the sale; I believe Mr. Kennedy had not a watch with him; I had compared my watch with the town clock on the evening preceeding the sale; my watch is a very good plain watch; there was about the same difference within a minute or two of the town clock when I returned on the Monday; I compared my watch with the town clock on my return, in consequence of some observations made as to the time after the sale; none were made until after it was over; I know that Mr. Kennedy went into the house with Mrs. Wells 20 minutes before the sale began; when it began there were several persons present; (witness named many of them.) I purchased one of the horses for £13 10s; this was the horse of whom the bad character was given; the first bid was £2 10s., not by me; I sold him for £30, by a bill one month after date, on my return to town on the Monday; I put it into Mr. Mather's hands as co-Trustee. The Insolvent Estate of Mr. Wells has got credit for the difference between what I gave and what I sold the horse for; I purchased a cart and bullocks, and they were not produced at the sale; they had been seized at New Norfolk, and left there by the Sheriff's officer; Mr. Haywood took them at the price; Mr. Samuel Wells said, the cart was good for nothing, old and broke to pieces, and one of the bullocks was so wild, that they themselves could not manage him. Some sheep were put up for sale, which were knocked down to me; the net profit of all the sales made, were to go to the credit of the estate; the sheep were sold in the bush, Mr. Samuel Well[s] [said], either at the sale or immediately afterwards, that he was the shepherd; that they should not be brought in with his consent, and that the Deputy Sheriff might find them if he could. I HAVE NEVER HAD THEM NOR ANY OF THEM. Mr. Sam. Wells said, that if the sale went on, he had his father's instructions to use force to prevent the removal of any thing; I do not think the sale was conducted in a precipitate manner; I recollect Mr. Atkinson and Mr. Rennie coming up; It was a very short time after the sale was concluded; Mr. Atkinson made some observations as to the time; by my watch it wanted 10 minutes to 1; I told him that the sale might be made over again; I repeated the offer to Mr. Kennedy in presence of Mr. Atkinson; Mr. Kennedy asked Mr. Atkinson if he wished them put up again; Mr. Atkinson declined the offer; he said it was his own fault that he had not been there sooner; Mr. Heywood the other purchaser, made the same offer that I did, but it was declined; If I recollect right, Abraham Hande rode up to the house when he arrived, which was some little distance from where the sale was made; I know Mr. Bent; I read in the Colonial Times the article in question; I have conversed with Mr. Bent about it; alluding to it. I told him that before he published reflections up people's character, he should be certain of their truth; and that in reference to one of the Trustees being one of the purchasers, he should have added, that he purchased fore the benefit of the Estate; he said, he merely printed and published it, as it was given to him; I consider most undoubtedly, the first article published to reflect on Mr. Kennedy's character; my opinion was, that he meant to assert that Mr. Kennedy had ruined the sale, to favor me as a purchaser; I should not believe Mr. Kennedy to be an honest man, if the statement made in the article was true.
Cross-examined. - The sale lasted perhaps 20 or 25 minutes; the sale had been over a few minutes, perhaps 5 minutes, when Mr. Atkinson came up; I claimed the property at the sale; that is to say, to see as Trustee, that the things were not sacrificed; I went to the Sheriff and told him, that as Trustee of Mr. Wells's Estate, I forbid the sale under the execution; if it should turn out that Mr. Murray is entitled to the proceeds, I shall certainly not pay him the difference; and if he is entitled to the money, the debt would be paid so far as that would go; I did not know, when I was a New Norfolk, that the cart and bullocks were there in custody of the Sheriff; Bernard Carron did not say in my hearing, that the bullocks seized were good bullocks, but he did say, that he had seized other four good bullocks, but that they had been since stolen from his possession; I originally bid £10 for the cart and bullocks, but in consequence of the representations of young Mr. Wells, I withdrew my bidding; I acted by the advice of Mr. Pitcairn, who has very cleverly made Mr. Murray fight the Trustees' battles; young Wells forbid the sale, because he said the property was vested in Mr. Rowlands; the two horses were sold, and the sale was proceeding when Hande arrived; a lot of sheep were put up for sale, and knocked down to me at 1s. 3d. each; I told Mr. Ballantyne that if he would bid 1s. 6d., I would not bid against him; 300 more or less were put up; I have never had any of them; the reason why I should not give Mr. Murray credit for the difference between what the lots cost, and the profit made, is, that Mr. Wells's Estate has already received the benefit of that difference, having given the Estate credit for it.
Admitted by Mr. Gellibrand, that the Trust Estate has received the benefit of the difference.
John Gardner. - I was at the sale at Allenvale; I had a very good watch, that kept good time with the Hobart-town clock; when the sale began and the first horse was brought out to be sold, it was 25 minutes past 12 by my watch; it was about 1 when the sale was over; I compared my watch with Sherwood's.
Mr. Barker, Jun. - I was at the sale; I recollect Mr. Cooke being questioned as to the time; I saw his watch; it must have been after 12 when the sale commenced; the sale was not hurried.
Henry Sherwood. - I was at Allenvale; I was not at the commencement of the sale; there were two horses sold when I arrived; I had a watch with me; I looked at it as soon as I arrived; it was half past 12; I believe my watch to have been about right; John Barry came to where I was, for me to take Carron the Sheriff's officer in charge.
Mr. Haywood. - I was at the sale; I had no watch; I saw Mr. Cooke's watch before the sale, and it was then past 12; it was a quarter of an hour in my opinion, after that, before the sale commenced; Mr. Cooke and myself offered to have we had purchased, put up again; I made the offer to Mr. Kennedy, who proposed it to Mr. Atkinson, and he declined it; I purchased a cart and bullocks, which are now in my possession; the cart is not worth much; it was old and decayed; I would now not take less than £10 for them; at the time I bought them, I had a very bad opinion of them, in consequence of what young Mr. Wells said at the sale, that they were wild or dangerous; he also said the grey horse was good for nothing; that the Tendon of one of his hind legs was severed, and that it was of no value; he protested against the sale, and that he should consider any property taken away, as taken by force, or words to that effect, in fact that the proceedings were unauthorized by Law; he handed a written protest to me, which I would not notice; Mr. Kennedy was very deliberate in selling the property.
Cross-examined - Mrs. Wells asked me in to take refreshment; Mr. Cooke and myself refused, but Mr. Kennedy went, it was then we saw it was past 12; notwithstanding Mr. Wells's account of the horse, I had a tolerable good opinion of him, although I could not help having serious doubts about him, from what Mr. Wells said; I exchanged the cart and bullocks with Mr. Cooke for the horse; I got no difference; it was a mere exchange; I would scarcely have bought the bullocks at all, after the character Mr. Wells gave of them.
Re-examined. - Mr. Cook paid for the horse which I purchased, and for his own purchases; he is my Agent; I have had no account from him of the way in which the exchange is charged.
Mr. Fereday. - I am Sheriff; I remember the sale at Allenvale; Mr. Kennedy had just before succeeded Mr. Hayes in his office; I heard Mr. Hayes's evidence; I know of no custom in my office, such as Mr. Hayes stated to exist, as to waiting; if it was past 12, I should use my own discretion, as to selling or waiting; I have been Sheriff near five years; I think I have been present at almost all sales in Hobart-town; I know of no custom of waiting; it has taken place, but we have also sold at 12, or soon after; I have the account of this sale; I produce it; I read the article in question; it was pointed out to me; I was so surprized at it, that had I not had an explanation from Mr. Kennedy, I should have believed it; but I then disbelieved it; I consider the imputation to imply that he was a dishonest man of the worst description, that he had been guilty of partiality as under-Sheriff, which I consider the worst of dishonesty.
Cross-examined. - Mr. Kennedy had been appointed in June; he had made four sales before that at Allenvale; I think he sold in the country in two cases before; sales have more frequently taken place after the hour, than before it; but frequently before the half hour; I think the only good sale I ever made in the Colony, was made at 12 exactly; it was the sale of Mr. Knopwood's and Mr. Gunning's property; I am positively certain it was exactly 12, because I saw a large attendance, and I requested the under-Sheriff to go and sell directly; I think there were from 20 to 30 persons present; I have been present at country sales; I was at Mr. Gunning's sale at the Coal River, also at Clark's. I think I waited an hour before I put it up; I waited for a purchaser whom I knew was coming, there being no one there but the person I was with. It was the Plaintiff's Solicitor for whom I waited, and who came specially to bid for the property. There were other persons present, who attended on behalf of Mr. Gunning, to bid for him. I do not think any person was there but Mr. Gunning when I delayed the sale.
Re-examined. - The sales in all cases depend upon the discretion of the Sheriff.
By the Chief Justice. - I consider 30 persons a very large attendance at a Sheriff's sale in town.
It was admitted by Mr. Gellibrand, that Mr. Bent had advertized that he had the largest circulation of any Newspaper except the Gazette.
Dr. Westbrook. - I know Mr. Kennedy. I read the article in question in the Colonial Times. I heard of it, and I borrowed the paper and read it. I considered it to charge Mr. Kennedy to have been guilty of a breach of his duty as under-Sheriff, by acting partially.
Mr. Abbott. - I have read the article in question. I have been frequently present at Sheriff's sales for the last 5 years. The number of bidders has generally been very limited. 4 or 5, unless it was a very extensive sale, both in town or country. This was the case for the Plaintiff.
Mr. Gellibrand then rose and addressed the Court in a manner to which we are utterly unable to do justice. The well-known eloquence and zeal of that able advocate having been exerted to the very utmost. We can only give our readers a sketch of an address, the delivery of which occupied of two hours. "Gentlemen," said Mr. Gellibrand, "after the length of time consumed in this case, I am unwilling to occupy more of it, than I shall find to be absolutely necessary to the interests of my client; and I trust therefore to receive your earnest attention, assuring you, that I shall limit myself to those points only, which in the exercise of my duty, I consider it necessary to lay before you. It is my bounden duty to endeavour to remove from your minds, any impression unfavourable to my client, which the nature of the extraordinary address made to you by the Solicitor General, may have occasioned; an address as to which, I think I may say, that a more heated, inflamed, and passionate one, was never delivered in any Court, or in any case. Instead of addressing you in that temperate manner, usual in such cases, instead of putting before you the real facts of the case, the Solicitor General has endeavoured to carry away your feelings, by addressing himself to your passions. He has endavoured so to inflame you, as that Mr. Bent, an industrious man, with a large family, shall be completely ruined. I had hoped that the little I had said in my opening this case to you, might have been passed by, without such remarks thereupon as you have heard, and which I cannot but consider were both unnecessary and uncalled for. But Gentlemen, I beg to call you attention to the great difference there is, between a civil action, and that in a criminal information. In the latter, whether the matter complained of, is true or false, it cannot be justified. On the contrary, in a civil action, such as that which you are now trying, if the Defendant can justify what he has said, that is, if he can prove that he has uttered no falsehood, that all he stated is true, he is entitled to your verdict. I submit, that this is the real and true distinction. That in an action where there are please on he file, such as those before you, that a[l]l you have to try, is, whether what the Defendant asserted is true or false; and to what does the whole in this case amount; whether Mr. Kennedy did act with precipitation and indiscretion. Nothing else was asserted, nothing else is presumed. My client disavows any thing in the slightest degree, bordering upon any insinuation even against the honest or moral character of Mr. Kennedy. And how has the Solicitor General treated this? He has compared it with a case as different to it, as can by any possibility be imagined; a case of no less importance, than the very highest crime known by the Law, the compassing the death of the King! Gentlemen, I agree with the Solicitor General in all which he has said of the doctrine laid down by Lord Ellenborough upon that occasion. I know of no better standard for Juries to govern themselves by, than that of Lord Ellenborough, always bearing in mind the difference between a cr[i]minal and a civil proceeding. Now Gentlemen, you have heard the Solicitor General's method of applying this. I submit to you, that it is any thing but the just one. For what is the really fair application of the article before you? It conveys that Mr. Kennedy being now in his office, adopted a different course of proceeding at a public sale, than that usual and customary, and upon which his predecessors invariably acted. And is it not fully in evidence before you, that such was the case! If Mr. Kennedy did, as it is proved, proceed in a manner different to what was usual, and acted with precipitancy, that is all which is said. The consequence is obvious. For such precipitancy could not but be injurious to the interests of both parties to the writ under which he said, both to the Plaintiff and to the Defendant. To the former in not obtaining for him the most which could be obtained towards the payment of his debt, and to the latter in sacrificing his property at an immense loss. If Mr. Kennedy did effect this by his precipitancy, has it not worked an injury! I repeat, it never has been said or insinuated, that such was done corruptly, or intentionally, but has it not been, and is not the justification then fully made out? I beseech of you to lay out of your recollection, all those violent expressions which have been, I consider, most improperly made use of by the Solicitor General respecting my client and his Newspaper. I admit that the address of the learned Counsel was most eloquent and ingenious. But I beseech of you, let not his impassioned and in flamed address, carry away your sober judgment, with which alone it is your duty to consider this ma[t]ter. The Solicitor General, not confining himself, as I submit he ought to have done, to the mere subject matter before you, has thought proper to represent the Newspaper of my client, as the foulest and basest which ever existed. He has not contented himself with vindicating his client, but he has attacked mine, and bestowed upon him as violent language as I ever heard uttered in a Court of Justice. I consider it most unjustifiable. He has thought proper to state that my client and his newspaper, are both equally detestable. And for what purpose has he thus vented upon him so much obloquy? To induce you to ruin him! Gentlemen, said Mr. Gellibrand, with great energy, I saw that there is nothing in this case which calls for such language. It is my duty to vindicate Mr. Bent from such unmerited reproaches, and I call upon you to divest yourselves of all recollection, that they have been uttered! For, supposing Gentlemen that the whole case of the Plaintiff should be fully made out. - Suppose that it should be admitted, for the sake of the argument only, that every word stated in the article before you, was one continued tissue of falsehood, could language be imagined stronger or more acrimonious, than that which has been addressed to you, obviously, I repeat, for the unjustifiable purpose of carrying away your passions at the expens[e] of your judgment, and inducing you to look at the case in a heated and inflamed manner, instead of taking that temperate and calm view of it, which I contend to be your duty. Is not the whole case, whether the under Sheriff did wait a reasonable time for the attendance of buyers, or whether he did not? Have you not it in evidence, that Mr. Atkinson made known to the under-Sheriff his intention of being at the sale for the purpose of becoming a purchaser? and was it not his duty to have waited at least a short time for his arrival? But, then the Solicitor General tells you, that he has proved he did not sell exactly at the stroke of 12. Mr. Cook's chronometer is appealed to for the true moment of time. And how is this borne out by the testimony of the other witnesses. (Here Mr. Gellibrand went at considerable length, through which our limits prevent us following him, into the contradictions which existed in the statement made by the different witnesses, [a]s to the actual time of the sale.) Now, Gentlemen, surely there is a very unnecessary precipitancy fully proved, even by the Plaintiff's own witnesses. And what was the consequence? Why, that a horse sold for £13 10s, for which the second purchaser himself admitted he would have given £30, had he been present. But says the Solicitor General, the difference between the first and the second sale, has been paid over to the Insolvent's Estate. I submit, that this has been of no benefit to the Insolvent himself. But, that had the horse sold for the price he ultimately fetched, so much more of the Insolvent debt would have been discharged, and the Judgment debtor, Mr. Murray, have been thereby insomuch benefitted."
Mr. Gellibrand here complained of the exhaustion which a week's continued exertions from early morning till late at night could not but have occasioned. He lamented it, he said, because he felt that it deprived him of pressing his case with all that force and extent which it so much required.
"Gentlemen," continued Mr. Gellibrand, "I have shewn you the precipitancy with which the Plaintiff acted, and that the consequences of it were the miserable sacrifice of the property sold. And what more is said in the article before you. I cannot conceive a more perfect and ample justification than my Client has made out. But it is not as to time alone that the Under Sheriff was precipitate, -- the facts as to the winnowing machine. It is sold without being produced. The purchaser, Mr. Marshall, being present, at whose house it was, asks if it is not necessary to produce it; and it is proved that his residence is but 2 miles and a half distant. The Under Sheriff says no, it need not be produced; and Mr. Marshall bids £1, and it is afterwards sold to him for £5. Why, Gentlemen, can we restrain our indignation at this? Is this the way that the property of an unfortunate debtor is to be sacrificed? And are you to sacrifice my Client, Mr. Bent, also, because he has dared to comment upon conduct such as this? Gentlemen, it is of vital importance for you to consider what may be the effect of your verdict. For rest assured that if such conduct as this cannot be commented upon by the press, no man's property is safe! Mr. Gellibrand then admitted that the 1st plea was not tenable and must fail, and after a most able and energetic address of upwards of 2 hours, which we lament we have not space to do justice to, he concluded by an eloquent appeal to the Assessors not to ruin his Client, an industrious man with a large family, by awarding heavy damages, in a case the justice of which required the very lowest denomination of coin, even supposing that hey should think fit to give any damages whatever."
The Chief Justice then acquainted the Assessors with the nature and effect of the pleadings. The general issue not being on the record, the whole of the Plaintiff's declaration was admitted, and they had to consider each of the six pleas of justification separately, and to consider whether any and what part of them was made out by the Defendant. In all cases where such justification was made out they would find for the Plaintiff; in all where the justification failed they would on the other hand find for the Defendant. "I apprehend (said His Honor) it will be of the very last importance, for you to enquire whether Mr. Kennedy, the Plaintiff, did (although without any evil or corrupt motive) act with precipitency and indiscretion, whereby the Defendant, in the writ of Fieri Faciasunder which the sale took place, sustained an injury. And if you really do consider that he did so, and that the article in question only means to say that he acted indiscretely and precipitately, then I think the smallest damages would answer the justice of the case. In order to bring this fairly before you, I will read the article again. (Here His Honor read the alleged libel.) Now, Gentlemen, it is for you, only with regard to the amount of damages, to apply the real meaning of these words. Does the defendant mean that Mr. Kennedy committed only honest error, which although honest, may, nevertheless, work injury; or does the writer mean to go one step further, and say that he took advantage of the power he had over the sale, to favour one party to the injury of the other. Upon these principles you are to regulate the amount of your damages; always bearing in mind the situation in life of Mr. Kennedy, and the amount of injury which he may have sustained by such a libel as that before you. In respect to the second article, you are not to look at it in order to estimate your damages; but merely to judge of Mr. Bent's intentions in putting forth the first article. I apprehend that now, irksome as will be the task, I shall have to go with you through all these six pleas, and, looking at each of them separately, decide how far they are borne out by the evidence."
Mr. Gellibrand here interrupted the Chief Justice by suggesting that it would perhaps be the shortest and the most satisfactory course, that the Chief Justice and the Assessors should retire and consider the whole case in private, and then merely announce their judgment. To this proposition the Solicitor General consented; and the Court withdrew. Upon their return, in about an hour, the Chief Justice spoke as follows:--
"We have gone through all those pleas carefully and attentively, and upon comparing them with the evidence, we find for the Plaintiff in the whole of them, with this exception that in Two of them we only find for the Plaintiff in part. That is to say, -- we find that the Plaintiff, did not wait a reasonable time for persons expected to come, to bid at the Sale, namely, Messrs. Atkinson, and Rennie; whereby we find that two of the lots, namely, a Horse, and a Cart and Bullocks, sold for less than they would otherwise have done. With these exceptions as to parts of two of the pleas, (parts only of them) we find for the Plaintiff upon the whole six pleas. And having so done we have proceeded to assess the damages generally, which we have done at ONE HUNDRED POUNDS. If you consider Mr. Gellibrand, that the finding for the Plaintiff upon only a part of two of the pleas, is in fact a finding upon such pleas for the Defendant, it is open to you to act thereupon as you may consider proper. Upon that subject, of course, it is not for me to speak."
The Solicitor General. - I presume, that upon this general finding, there will be unica Taxatio, and therefore, that it will only be requisite to enter up the Judgement as such. But I shall take care that is done accurately.

Pedder C.J., 6 February 1830
Source: Tasmanian and Austral-Asiatic Review, 12 February 1830 [2]

Mr. Gellibrand. - I have humbly to submit to your Honor a motion for a new trial in this cause. The motion will be two fold; first, for a new trial, upon the ground that the damages given upon the late trial, were excessive, and if your Honor should decide against me, I have then to move that upon the 4th, 5th, and 6th pleas, the verdict be entered for the Defendant, which I shall submit, will of itself afford sufficient ground for a new trial. On the first head, as to excessive damages, I shall not have occasion to trouble your Honor at any very considerable length. The Assessors found that the Plaintiff acted with precipitation in not waiting a reasonable time, --
The Chief Justice - Bu[t] not corruptly.
Mr. Gellibrand. - No, the article did not charge him with such.
The Chief Justice. - But it did with partiality, and is not that corruption.
Mr. Gellibrand. - I submit that it is not. There is a very wide distinction between partiality and corruption. The whole which the article charges him with, is indiscretion and precipitancy, and the Assessors found that such was the fact. The article charged him with not waiting a reasonable time for purchasers expected to arrive, and the Assessors expressly found that he did not so wait. This is partiality but it is not corruption. It is the effecting a mischief to one party or the other, to the judgment creditor or the Defendant. There is nothing more suggested in the article than partiality shewn to those who were present at the sale, who were enabled, in consequence of the Plaintiff not waiting a reasonable time for purchasers who he knew were coming, to purchase at a much less price than they otherwise could have done.
The Chief Justice. - It has been lately held in a case relative to one of the Houses of Parliament that reflections made by one man upon another are to be taken in the obvious sense and meaning of the words, and I cannot conceive how it is possible for a public officer to shew partiality in the exercise of his office, without being corrupt.
Mr. Gellibrand. - I submit that if explanation is afforded in the same article, that there was nothing whatever imputed but indiscretion, that the Jury are to take the whole together, and not to separate one part from another. The close of the article states, that indiscretion is all that is complained of. And the Jury by their verdict, find that there was indiscretion. But if the word partiality is to be particularly considered, I ask, did Mr. Kennedy shew such impartiality as he ought to have done in the performance of the duties of his office? If he did not, and I contend that the verdic[t] expressly so finds, then I say, that £100 damages are excessive. The finding expressly was, that he did not wait a reasonable time.
The Chief Justice. - But we did not find that he ought to have waited after 12, and it was proved that he did not sell until after that hour.
Mr. Gellibrand. - The finding is, that he did not wait a reasonable time. If this means any thing, it means he was blameable in such conduct, and if so, surely he cannot be entitled to such heavy damages as have been awarded him. If every word of this article which is now found to be libellous, had been also found to be false, I can not conceive that heavier damages would have been given, and found as it is, that he did not act free from blame, that the very essence of discharge itself is found to be true, surely Forty Shillings damages would have been amply sufficient. But upon other grounds, I contend that the damages were excessive. I allude to the winnowing machine; can any thing be more monstrous than to sell property unseen and unsought after its value unknown, whether worth £1000 or 1s., nobody present being able to form any idea of the worth of it. Surely the Assessors cannot have taken that fact into their consideration; this alone ought to have induced them to have given the most moderate damages, if any at all. (Mr. Gellibrand pressed the point of the winnowing machine at considerable length, the above however is the substance of his argument.) I now come to the Pleas, and I shall have to call your Honor's particular attention to the finding upon them. The 4th Plea sets out with stating the facts of the Fieri Facias, and that the custom of the Sheriff's office was to wait a reasonable time before proceeding to sell. The evidence of the Sheriff himself proves the fact. The Assessors therefore in finding against it, have found dire[ctly] contrary to evidence. (Mr. Gellibrand went through the whole of the Press seriatim, commenting as he went on, upon the discrepancies between the evidence at the trial, and the finding of the Assessors, which he contended was conspicuous in respect to the 4th, 5th, and 6th Pleas, all of which he contended were proved, except in certain trifling parts, which he considered to be surplusage. He spoke to this part of his case at very considerable length, but the principle part of his argument being of a technical nature, our readers will sufficiently comprehend it from what we have stated.) I have much more to submit to your Honor in support of this motion, but my strength is exhausted. I trust however, that your Honor will [b]e of opinion that I have shewn enough to convince your Honor, that the damages are excessive in a case where there is so much open to censure, and that therefore there ought to be a new trial. But if your Honor should be of a different opinion, then I submit that the verdict must be entered for the Defendant upon the Pleas, seeing that there are parts fully proved in evidence which have not been found, and that therefore the Defendant is entitled to a new trial. Mr. Gellibrand's speech occupied two hours in the delivery and his exertions were equally able and animated.
The Solicitor General. - I trust I shall be enabled to convince the Court, that there are no grounds for the motion, without troubling your Honor to any considerable extent. I shall commence with Mr. Gellibrand's argument as to the finding upon the Pleas; which I confess appears to me to be quite different to what Mr. Gellibrand stated. (Mr. Stephen here spoke to the Pleas at great length. He went through the whole of Mr. Gellibrand's objections and arguments as to the pleas, following him through each of them, and our limits prevent our reporting that part of his very able address, which being confined principally to the professional technicalities observed upon by Mr. Gellibrand, can be perfectly understood from what has gone before. He then proceeded to the general argument.) I differ entirely with Mr. Gellibrand in the conclusion to which he comes, as to the finding of the Assessors. They did not find that Mr. Kennedy ought to have waited longer than he did. They only found that he did not so wait. They found a mere dry fact; but no more. But it was in evidence, that he did not so wait. They found a mere dry fact; but no more. But it was in evidence, that he did not proceed to sell until after 12 o'Clock. It was his duty then to proceed. The Assessors have found that he did not wait longer; and is this a ground why a verdict given for accusing a public officer of corruption in the exercize of his public duty, and for falsely so accusing him, is to be set aside? I confess, I consider it would be a waste of words to reply to such a position. What! Is it to be said that £100 damages awarded to a public officer who has been subjected to such a charge as this - who has been falsely accused of corruption in the exercize of his office, are to be called excessive, because he did not forsooth wait an indefinite time for two persons to arrive, who for aught he knew might not arrive at all, and who when they did arrive, had the option of having the sale opened for them, and who declined it; and that because he sold a winnowing machine without shewing it, is it to be said, that on grounds such as these, the damages are to be considered excessive, and the verdict to be set aside? Such a proposition is monstrous in the extreme. But Mr. Gellibrand says, that it is indiscretion only with which Mr. Kennedy is charged. I will take his own Newspaper, and read his own words to him. He says, Mr. Kennedy acted with a precipitancy, and disregard to the interests of one party, in leaning towards the other, by a proceeding entirely new, and irreconcileable with the principles of Justice. Now what can any man of common understanding bring himself to believe is meant by this. Is it not corruption in the exercize of his office? Is not the charge of partiality made broadly, and is not that a charge of corruption as direct as if it had been made in express terms? What has the winnowing machine, about which Mr. Gellibrand has spoken so much, to do with this? He says a man may be partial without being corrupt. I do not consider it to be utterly impossible in such a case as the present. I admit that a man may be partial, where a near or dear friend is concerned. He may look towards such with a partial eye, in the ordinary proceedings of life. But can a minister of Justice do so without being corrupt. I assert that no public functionary can be partial, even in the slightest degree, without being in the same degree corrupt. Why, what says the most ordinary book of reference, Johnson's Dictionary, even the miniature edition, as to the word partiality. It is explained to be, unjust favor - an inclination to favor one party more than the other, by the operation of the mind. And it is this with which Mr. Kennedy the under-Sheriff of the Colony is charged. It is this unjust favouring one party more than the other in the exercize of his office with which he is charged, and for which false as such charge is proved to have been, the assessors have awarded him £100 damages, which are now to be considered excessive! But more. When the Defendant adopted the course of pleading, by which he obtained most important advantages, he did not so, without, as I stated at the trial of the cause, making some little sacrifice. By the course he adopted, he admitted our whole declaration. He admitted the truth of all our inuendoes, that he had done all we had charged him with, saying that he was justified in so doing. And when it is found that he was not so justified, is it to be endured, that our verdict is to be set aside, because he says a winnowing machine was not produced.
The Chief Justice. - They do not say you are not entitled to damages, they only say you have had too much.
The Solicitor General. - Yes, Sir, and why do they say so; because that Mr. Kennedy did not wait longer than his duty required of him, and that he did not shew a winnowing machine. This is the sum and substance of Mr. Gellibrand's argument. This is the whole of his complaint. And yet he gravely argues - he comes before you with gravity of countenance, upon pretences such as these, to argue that after having charged the under-Sheriff of the Colony with corruption in the exercize of his office, £100 damages are excessive! It really exhausts one's patience as much to listen to this, as it does one's body to reply to it. But what do the books say as to excessive damages. (Mr. Stephen here read various authorities fully bearing him out in his argument.) Upon these grounds, I do submit, that there is no pretence whatever for disturbing this verdict. I trust the Court will see nothing in what has been argued, which can in any way affect it. It was the result of a grave investigation. The injury was of a most serious character, and the damages are no more than Mr. Kennedy was in every consideration, fully entitled to.
Mr. Gellibrand shortly made some good humoured observations upon the want of patience, of which the Solicitor General had spoken, and contended that he had heard nothing to invalidate or weaken the argument he had submitted to the Court.
The Chief Justice. - In respect to the finding upon the Pleas, I certainly did consider that there were admissions made on both sides, the effect of which, was to enable the Assessors to come to a decision generally upon the real meaning and tendency of the article. Such was my impression certainly when we retired, and so it still is, and therefore it was that the Assessors came to their decision upon the general merits of the case. In reference to excessive damages, I know of no standard by which the injury to feelings can be measured in cases such as the present. It is utterly impossible in cases of libel, slander, seduction, or others similar, to establish any given principle upon which to estimate the amount of injury sustained. Every such case must stand upon its own particular circumstances. In this case, it is admitted upon this application, that the Plaintiff is entitled to some damages. The real question then becomes, what is the nature of the libel, and the situation of the party libelled; and upon these principles, it is impossible for me to say that the damages are excessive. As to the Pleas, I shall fully consider all that has been urged, and decide as soon as I can. I cannot fix a day. I shall do so as soon as I possibly can.

Notes

[1] See also Hobart Town Courier, 23 January 1830; Wells v. Fereday, 1830. As it was the newspaper concerned in the action, the report of this case in the Colonial Times of 22 January 1830 may be less reliable than that in the Tasmanian. AOT SC 139/1, p. 64 gives the parties as Michael Kennedy and Andrew Bent.
For a highly critical editorial, see Colonial Times, 22 January 1830; and see 5 February 1830. This led to proceedings for contempt: see R. v. Bent, 1830.
[2] See also Colonial Times, 12 February 1830; Hobart Town Courier, 13 February 1830.

Published by the Division of Law, Macquarie University and the School of History and Classics, University of Tasmania