Skip to Content

Decisions of the Nineteenth Century Tasmanian Superior Courts

Meredith v. Lord [1833]

assault - false arrest - magistrate, action against - bushranging - magistrates, litigation between - new trial

Supreme Court of Van Diemen's Land

Pedder C.J., 2 November 1833

Source: Tasmanian, 8 November 1833 [1]

Before His Honor, the Chief Justice, and a Civil Jury

T. Y. Lowes, Foreman of the Jury - William Ladds, Edward Garth, Thomas Hopkins, John Jackson, Thomas Lucas, Esh Lovell, William Harris, Henry S. Hurst, William Hanger, David Kelly, Richard Hazlewood.

Meredith v. Lord and Another

This action was brought for an assault, and false arrest - damages laid at £500. J. T. Gellibrand, Esq. counsel for plaintiff. The Attorney-General for the defence.

Mr. Gellibrand, in opening the proceedings, stated this to be an action, brought to recover compensation in damages for an assault and false arrest, made on his client. Mr. George Meredith senior, which took place on the 22nd January. Both plaintiff and defendant, were well known to most of the Jury - Messrs. Lord and Hepburne, were two Magistrates who possessed considerable property, and this action was brought against them in consequence of their having, in their Magisterial capacity, caused the plaintiff to be apprehended on an illegal warrant. The object of his client, in bringing this action, was not to obtain vindictive damages, but to bring before a Jury of his countrymen, a case for their decision, wherein the liberty of the subject had been infringed - the principles of the constitution outraged - and a serious injury inflicted on the feelings of himself and family - by men in whose hands, power was invested for the protection, and not for oppression of the people. The Learned Counsel, then entered into the history of the original cause of action, which was connected with the capture of the 5 Oyster Bay bushrangers, who were captured and afterwards tried in the Supreme Court, in Hobert Town, some few months since. Mr. Meredith had adopted a plan to capture these men, without risk or loss of life; unfortunately the opposition of the Magistrates to that course, proved in the sequel, that it had been a proper one. In consequence however of some previous misunderstanding, these said Magistrates Messrs. Lord and Hepburne, intended to construe Mr. Meredith's actions on the occasion, into a case of felony. Every means of annoyance was pursued against the plaintiff; he was summoned to the Police-office, along with Nicholson his assigned servant; this servant was not only examined privately, but the master was left to stand outside the Police-office door, like a common felon. Again, in a few days after, the plaintiff on a most frivolous pretence was called to the Police-office, and because he would not leave his own affairs, in answer to such a frivolous demand, he was apprehended upon a warrant, by a convict constable, and dragged a prisoner before these Magistrates. Mr. Gellibrand, continued - he would read the warrant, and a pretty specimen it was of Oyster Bay Magistracy; the warrant, upon which he was apprehended, was as follows:-

Police-office, Waterloo Point, Great Swan Port, Island of Van Deimen's Land to wit.

To William Williams, Constable, and to all Constables and others in the said Island whom it may concern.

Whereas information hath been made before me, one of His Majesty's Justices of Peace for Van Diemen's Land and its Dependencies, upon oath of William Williams, a Field Police Constable, stationed at Waterloo Point, that yesterday, Tuesday, the twenty-second day of January instance, to the best of his knowledge, between the hours of one and two o'clock, he received from the Police office a copy of a Summons to serve upon one George Meredith, Sen., Esq., of Belmont, Great Swan Port, Settler; which copy of summons he, the said William Williams duly served upon the said George Meredith, Sen; to which said copy of summons, he, the said George Meredith, Sen., hath wholly neglected to appear, so in pursuance of the directions contained in the aforesaid copy of summons. These are, therefore, in His Majesty's name, to command you and every of you forth with to apprehend and bring before me, or some other of His Majesty's Justices of the Peace, the body of the said George Meredith, Sen., to answer touching the said Information, and to be further dealt with according to law.

Given under my hand and seal, at Waterloo Point, this twenty-third day of January, in the year of Our Lord one thousand eight hundred and thirty-three.

(Signed) Thomas Daunt Lord,

Police Magistrate.

The within warrant was executed personally upon Mr. Meredith, Sen., this twenty-third day of January, one thousand eight hundred and thirty-three, in the presence of Constable William Williams, by me,

A true copy, (Signed) George Massey

George Massey, Police Constable

Although this warrant only bore the signature of Major Lord, still, said Mr. Gellibrand, if it had the concurrence of Mr. Hepburne, which, if he could shew by the evidence, the Jury would be justified in finding a verdict on the third count. The Learned Counsel then observed that Mr. Meredith was apprehended on this very warrant, when two of his children were present on a shooting excursion. He then very pathetically appealed to the feeling of the Jury, strongly portraying the injustice, and the outrage, and injury sustained by plaintiff, in thus being insultingly dragged away from his family, by a convict constable, and then remarked, that these Magistrates, after thus inflicting a deep wound on the feelings of the plaintiff, offered no compensation. Had they acknowledge their error - no! they added insult to injury, and compelled the plaintiff to seek for redress and justice at the hands of a Jury, and now pleaded the general issue, with an intention of justifying their conduct.

The Attorney General, took an objection, on the grounds of informality, in the notice served, which was overruled.

George Massey, called by Mr. Gellibrand. - Am a constable at Waterloo Point; know the plaintiff and defendant in this action; received a warrant in January last, for the apprehension of the plaintiff; the warrant produced in Court is the same. [Witness recognized his hand-writing thereon.] He received it on the 23rd January, between 11 and 12 o'clock at noon; it was given to him by Major Lord, at the Police-office.

The Attorney General contended, that as Mr. Hepburne's name was not on the warrant, the plaintiff must be nonsuited as the notice given was that of a joint action. Objection overruled.

George Massey's examination continued. - Captain Hepburne was present when witness received the warrant; Major Lord told him to take it, and bring Mr. Meredith to the Point; witness apprehended the plaintiff in consequence; it was about 12 at noon; he was in a field shooting, accompanied by two of his sons; plaintiff looked at the warrant and said to witness, "you must do your duty;" a constable, named Williams, accompanied witness; he was sent by defendant; plaintiff was a short mile from the Police office, when arrested, witness brought him before Major Lord and Captain Hepburne, who were both at the Police-office; they passed Ferguson's public house on their way; plaintiff left his gun and dog there; there were a number of people in the house at the time; amongst whom was one of plaintiff's servants, who saw his master in custody; when plaintiff was brought to the Police-office, defendants desired him to be "shewn in;" he remained in the office about a quarter of an hour; witness was called in during the time by Captain Hepburne, who ordered him "to shew plaintiff the door;" he had been speaking rather high; witness "ushered him in," and "ushered him out."

Williams Williams, examined by Mr. Gellibrand. - Was a Field Policeman in January last, and stationed at Waterloo Point; defendant and Captain Hepburne were present when witness received the warrant; witness was about ten minutes in the office before the warrant was filled up; defendant told witness to severe the warrant on plaintiff; understood from defendant that he was to arrest the plaintiff, and bring him to the Police-office; Massey had the warrant in his possession when he was arrested; Massey went up to plaintiff, and told him, that he had a warrant to apprehend him, and to take him to Waterloo Point; plaintiff looked at the warrant, and then accompanied witness and Massey to the Police office; he offered no resistance whatever; Captain Hepburne was sitting beside defendant, in the place where the Magistrates usually sit, when the warrant was issued; he was sitting in the same place when plaintiff was brought in custody; plaintiff appeared to be in a passion, and exclaimed against "the illegality of the Court;" Mr. Hepburne called in a constable, and ordered him to put plaintiff out of the office; witness, in consequence, took hold of plaintiff's arm "and showed him out" - He had previously "shewn him in;" plaintiff asked who orders me out! On which Mr. Hepburne nodded his head; witness understood the meaning of the "nod," to be that he Mr. Hepburne had done so.

John Ferguson, examined by Mr. Gellibrand - Keeps a public-house at Waterloo Point; knows the plaintiff and defendants in this action; understood that plaintiff was in custody on the day mentioned; there were two constables with plaintiff, but they kept at a respectful distance; plaintiff asked witness if he would take charge of his dogs and gun, as he was going to the Police-office as prisoner; plaintiff appeared ruffled, and his apprehension was the subject of conversation amongst the various persons who were then drinking in witness's house.

William Hogarth, examined by Mr. Gellibrand. - Was Police Clerk at Waterloo Point in January last; recollected the capture of the bushrangers at that period. (A note was here handed to witness by Counsel) Recollected that note, it was in witness's hand-writing, and read as follows:-

"June 16, 1833

"The Police Magistrate requests the attendance of George Meredith, Esq., at the Police-office, to-morrow morning, at 10 o'clock, upon urgent business."

Witness saw a letter from plaintiff to defendant, dated 17th January, 1833, at the Police-office; saw it in defendant's possession; could not recollect the purpose thereof; but the impression on witness's mind was, that it was of negative nature, declining to comply with the summons.

Mr. Gellibrand, applied to the defendants Counsel, to produce the Police-book - this, the defendants declined doing.

Hogarth continued - The warrant was in his hand writing, he was present when it was signed. Major Lord and Hepburne were present when the warrant was filled in. It was so filled, in consequence of a consultation between them, and which was held in witness's presence; Captain Hepburne was present at the signing and delivery of the warranty; the constable that was called in was ordered to get another, and proceed and take Mr. Meredith into custody; witness saw plaintiff in custody of the gaoler and another constable; he was a good deal excited and protested against the illegality of the proceedings; he was detained about half an hour; witness was present when the constables were called in, to shew plaintiff the door.

This closed the case for the prosecution.

The Attorney General, submitted that the plaintiff must be nonsuited, on the ground that the action was improperly brought against the defendants conjointly, and not separately (objection overruled). He commented on the modesty of the amount of damages, sought to be recovered, and the Learned Gentleman evinced his usual piquant touches of sarcasm, in his alluding to the plaintiff being arrested in the midst of his field sports, accompanied by two of his sons and three dogs. The Attorney General contended, that the Magistrates could not act in any other manner, than in the way they did; they took the only method which occurred to them, to bring the plaintiff before them. They had first politely written, to beg Mr. Meredith's attendance at the Police-office which he declined - they then issued the warrant, and although it might have been unwise, yet it was the easiest mode for them to adopt; as to the unkind feeling which existed, and on which the Counsel for the plaintiff, had laid such strong emphasis, and which it was attempted to be shewn was engendered on the part of the defendants only; it was quite the contrary. If ill-feeling there was, it was solely on the part of the plaintiff, who considered that he had been overlooked by the Government - that he, the plaintiff, had considered others had been unjustly placed over his head; that he had claims to the Police Magistracy, which had been unheeded by the Authorities. The Learned Gentleman then sarcastically proceeded, commenting on the plaintiff's qualification for that office, and contrasting the gentlemanly conduct of the defendants, who had so frequently rendered such important services to the community. In concluding, he admitted the illegality of the warrant, but under all circumstances, he trusted the Jury would not allow his clients to be fleeced, and that one shilling damages would be quite sufficient compensation for the sustained injury.

His Honor, during his address to the jury, observed that if a constable went up to a person, and told him that he had a warrant to apprehend him, and that individual chose to accompany him voluntary, that could not be called imprisonment, it was a voluntary act. The jury could give no damages, on account of the plaintiff being turned out of the police office. Whatever damages were given, must be for the time he was in custody.

The jury retired, and in about twenty minutes, the foreman came into the court, requesting the jury might be furnished with Mr. Meredith's answer to the note sent by the police magistrate.

His Honor said, that as defendants, Counsel declined producing the letter, it was for the opposite party to give evidence of its contents.

Some little time elapsed, when His Honor directed the jury to be called out, when reading a portion of the evidence to them, they, after a short consultation, returned a verdict for the plaintiff, damages £100.

Pedder C.J. and Montagu J., 12 November 1833

Source: Colonist, 19 November 1833

 

 

Meredith v. Lord and Hepburne

On the first day of Term, the Attorney General moved for a nonsuit in this case, on the following points:- First, the insufficiency of the indorsement on the notice of action, because Messrs. Cartwright and Allport were not thereon described as Attorneys for the plaintiff; and secondly, that the warrant, under which the plaintiff was apprehended, being signed by Major Lord only, the action would not be against the other defendant, Hepburne, although he was present, and authorized its being issued. These points were both over-ruled by the Court; when the Chief Justice stated from the Bench; that he had entirely misdirected the Jury, and, without any motion from defendants' Counsel, suggested that a new trial ought to be granted on that account. Judge Montague suggested that defendants' Counsel should embrace in the rule permission to record a nonsuit. After some discussion, a rule to shew cause why a new trial should not be granted, or a nonsuit entered, was admitted by the Court, and this day the arguments were heard, when a new trial was granted, on the grounds of misdirection from His Honor the Chief Justice.

Mr. Gellibrand cited the case of Wickes v. Clutterbuck, from Bingham's Reports, vol. 2 p 483, and which to our understanding was not only conclusive in favor of the principle contended for by him, but also completely analogous to the case then before the Court, in all its bearings. It is unnecessary for us to go into the particulars of the case referred to; but we cannot omit extracting some few of the observations of the Judges who presided on that occasion:-

Chief Justice Best: - We have been told by the Counsel for the Defendant, that gentlemen will not act under the commission of the peace, if they are held liable to actions for defects in their warrants. I have too high an opinion of the wisdom and public spirit of that most valuable body of men, the magistracy of England, to apprehend any such consequences.

Important as the duties of a magistrate are, a man of ordinary sound understanding and singleness of heart will have no difficulty in discharging them satisfactorily to himself and the country, and will find that he has all the protection from the law that he can desire. He is not called on to answer criminally, unless it can be clearly proved that he was actuated by corrupt motives. Considering the thousands that there are in this kingdom, devoting their gratuitous services to the country, as magistrates it is most honorable to the magistracy, and most fortunate for the community, that an instance seldom occurs of one of them being found to have actedintentionally wrong.

If, by the mistake of a magistrate, any man is injured, he cannot maintain any action for his injury, against the magistrate, without giving him notice of his intention to bring the action one month before it is brought; during that time the magistrate may ascertain the extent of the injury, and protect himself against the action by the tender of sufficient amends. No honorable man will consider that he degrades himself, or the body to which he belongs, by such a tender. When a man has injured another, even through inadvertence, he will be disposed, not only for the sake of justice, but that he may keep his place in the estimation of the public promptly to offer redress.

Another point has been made; namely, that the officer executing the warrant, who is not to blame, is liable to an action; but not the Magistrates, who is. In trespass all are principals; and if an order be unlawful, he who gives it is as much responsible as he who executes it.

Judge Burrough:- I agree with the learned Counsel for the defendant, but on grounds different from those suggested by him, that this is a case of great importance to Magistrates. It is important to point out to them, that in the exercise of a summary jurisdiction, they ought not to undertake matters to which they are not equal; that they cannot be too careful in seeing that their proceedings are correct; and that if they err, they are liable to the consequences of their error. In pursuing the powers entrusted to them by statutes such as that under which the Defendant has acted, they ought to be narrowly and strictly watched. Their proceedings are summary, the party charged before them has not the benefit of a jury to consider his case; and if the conduct of the magistrates were not open to investigation, he might be subjected to great oppression.

Pedder C.J., 10 December 1833

Source: Tasmanian, 13 December 1833 [2]

Before His Honor, the Chief Justice, and a Jury

 

 

The following Gentlemen were sworn as Jurymen:- James Makepeace, Elizabeth-street; Laughlin Morrisson, Elizabeth-street; Peter Monro, Macquarie-street; John Martin, Argyle-street; William Lear, Elizabeth-street; William Maycock, Argyle-street; William Lewis, Bathurst-street; Thomas Hooper, Collins street; John Meager, Argyle-street; William Lawrence, Elizabeth-street; John Miller, Patrick-street; David Lord, Macquarie-street.

Mr. Gellibrand was Counsel for the plaintiff, and the Solicitor General for the defendants.

Mr. Allport opened the case, by reading the indictment, which contained four counts. The first count charged the defendants with, on the 23rd January, assaulting the plaintiff, and legally detaining him for the space of one hour, to his serious loss and injury.

The second count set forth the same charge, with some little variation as to the wording.

The third count charged the defendants with causing, on the same day, an assault to be made upon the plaintiff, and with causing the said plaintiff to be illegally detained for the space of one hour.

The fourth count was nearly the same as the others, all of them setting forth the charge of illegal imprisonment on the 23rd January.

The damages were laid at £500; defendants pleaded the general issue.

Mr. Gellibrand addressed the Jury for the plaintiff. The plaintiff, said the learned gentleman is, no doubt, well known to every one of the Jury, and the defendants equally so. His client, who resided in the district of Great Swan Port, had been, by the defendants, illegally arrested, and confined for the space of time mentioned in the indictment; and he knew of no amount of damages which could compensate, not for the imprisonment alone, but for the manner in which it was accomplished. He wished to lay every circumstance fully before the Jury, and should, therefore, furnish them with all the information to be derived from the documents in his possession; and he trusted the Counsel for the defendants would pursue an equally liberal course. In the month of January last, five bushrangers passed over to Great Swan Port; one had been a fellow servant to a man named Nicholson, at that time in plaintiff's employ. This man went to Nicholson and advised him of their intention of attacking either Mr. Meredith's house, or Mr. Ferguson's, at Waterloo Point. Nicholson seemed to agree to the plan, but only that he might acquaint his master therewith, which he did shortly afterwards. The men wished Nicholson to let them have his master's boat, for the purpose of proceeding to the attack on Ferguson's house - Nicholson having previously warned them against attacking his master's; it was, therefore, arranged between Nicholson and Mr. Meredith, that they should have the boat, and that, if possible, they should all be captured at Waterloo Point. Mr. Meredith apprised Major Lord of his proceedings, and in the evening the men went in the boat to Ferguson's, in whose house soldiers were stationed to receive them; and he, Mr. Gellibrand, might here remark that the Attorney General had already admitted Mr. Meredith's conduct on the occasion to have been highly praiseworthy. Major Lord, after the men had been captured, though proper to charge them with felony, in stealing Mr. Meredith's boat, &c., which, under all the circumstances, was decidedly improper; for if it was not wrong, Mr. Meredith might, with equal justice, be viewed as an accomplice. The Luminaries of Swan Port, however, thought the men in taking the boat under such circumstances, had committed felony - Mr. Meredith was, consequently, brought to the Police-office and examined; but I shall shew you, Gentlemen, said Mr. Gellibrand, that instead of taking down the whole of Mr. Meredith's statement, such statement was only partially committed to writing. The man Nicholson, who had acted, so well, was detained from his master, confined, and debarred all communication with any one but such as Major Lord chose to admit - even his master was denied admission to him. He was kept confined upwards of three months - the boat, of which he had the charge, remaining all this while upon the beach, exposed to injury, and the risk of being stolen. The whole of this extraordinary conduct, Gentlemen, must evidently have arisen from malevolent feelings on the part of the magistrates towards Mr. Meredith. On the 23rd January, while shooting with his sons, Mr. Meredith was apprehended by a warrant from Major Lord and Mr. Hepburne, magistrates. "Magistrates in this Colony," said the learned gentleman, "are well known to be invested with powers unknown in any other part of the world; and, therefore, although they should unquestionably be protected in the proper discharge of their duty, a careful eye should be kept upon them, in order that the strict bounds of their duty might not be overstepped." Although in this Colony we are deprived of some portion of our birth-right, still he hoped he should never see the day when Englishmen may be unjustly treated, without being certain of obtaining redress. The document upon which his client was apprehended did not state why he was so, or for what purpose, which, he contended, it ought to have done.

[Mr. Gellibrand here read the warrant which was directed to William Williams, a convict constable.]

These expounders of the law do not appear to have considered it necessary to inform Mr. Meredith upon the warrant for what he was apprehended - they did not consider it just, expedient, or lawful to do so. Let me, Gentlemen, give you an illustration - Major Lord, I dare say, is not always at his post. Suppose him, therefore, to have been absent soon after the warrant was issued, and the constable was obliged to have taken Mr. Meredith before another magistrate, how could he have known with what offence Mr. Meredith was charged? The impolicy, the danger, I go further and say, the cruelty of magistrates issuing such documents as this, is beyond endurance. It will be said, that latitude should be given to magistrates in the discharge of their duties, and I grant it; but before a gentleman of Mr. Meredith's standing in society, is disgraced before his neighbours by such proceedings, it is certainly the duty of the magistrates to be certain that the documents they issue are legal. I am satisfied, Gentlemen, when you hear the evidence I shall offer, you will consider my client to have been exceedingly ill-treated - and I am, also, certain that you will inflict exemplary damages. The law is very tender as respects the protection of magistrates, for things done in the execution of their duty, and all actions against them for the improper discharge thereof, must be brought within six months from the occurrence of the cause of action. The law also allows a magistrate to offer compensation; but in the present case, none such was offered - not even an apology.

Mr. Gellibrand read several extracts from Hawkins, Mr. Justice Best, and Mr. Justice Park, in order to prove the necessity of stating the cause of arrest upon the face of the warrant, and then proceeded to call his witness.

John Dunbar examined. - Lives at Great Swan Port; knows Mr. Hepburne, remembers serving him with a notice on the part of Mr. Meredith; (notice produced); knows from his own examination that the notice produced, is a true copy of the one he served on Mr. Hepburne; served a copy both upon Mr. Hepburne and Major Lord; made the memorandum upon the back, to the best of his recollection at the time he served it; served the notices on the 18th of May last.

Cross-examined by the Solicitor General - Made the memorandum on the back, the same day, or day following; served one on Major Lord, a day or two before or a day or two after. Notice produced, is the one served by witness on Mr. Hepburne.

By His Honor. - Examined the notices, by reading them over; cannot say he compared them word for word.

Examination continued. - The notices served by witness, were in the same hand-writing.

Joseph Allport, examined by Mr. Gellibrand - Is one of the Attornies in this case; drew out a notice to be served upon Mr. Hepburne; transmitted four copies to Mr. Meredith; does not recollect on what day; the notice produced is one of those sent to Mr. Meredith; sent them through the post-office; thinks he sent them in the latter end of April, or beginning of May; compared them with his clerk before they were sent. The notices are in the hand-writing of one of witness's clerks. The notices sent were not all alike; there was on one of them, an omission of the word solicitor. The copy, which appeared to witness to have been served upon Mr. Hepburne, is the one in which the word solicitor is omitted; thinks it one of those he sent.

Mr. William Henry Corbett, examined by Mr. Gellibrand. - Is clerk to Messrs. Cartwright and Allport; was so in April last; notice produced is his hand-writing; has some recollection of comparing the notices with Mr. Allport, but cannot swear he did so.

The Solicitor General, here took an objection to the course of examination pursued, which was over-ruled by the Court.

Examination continued. - Cannot say whether, at the examination of the notices, he held the original or the copies.

His Honor said, he did not consider it necessary to carry this evidence further, with which Mr. Gellibrand concurred.

The Solicitor General, submitted that a verdict must pass for Mr. Hepburne, as Mr. Gellibrand had failed altogether, to prove the service of the notice upon him.

Mr. Gellibrand, submitted that there was evidence.

His Honor, said there was no proof of the paper served upon Mr. Hepburne, being one of those sent by Mr. Allport to Mr. Meredith.

Mr. Gellibrand, called Mr. Ross, to which the Solicitor General objected, on the ground that as Mr. Ross was engaged for the defendants, it would be compelling him to be guilty of a breach of confidence.

His Honor decided, that Mr. Ross should not be called.

Mr. Gellibrand not offering any other evidence of the service of the notice, upon Mr. Hepburne, a verdict was accordingly given for the defendant, Mr. Hepburne.

George Massey, examined by Mr. Gellibrand. - Is gaoler at Waterloo Point; knows Mr. Meredith and Major Lord. Apprehended Mr. Meredith on the 21st of January last. Plaintiff was about a mile from his house, shooting; one of his sons was near him. William Williams, went with witness; they had no fire arms; told plaintiff he had a warrant against him; plaintiff looked at it and said "You must do your duty, but God help those who are doing more than their duty." Mr. Meredith called his son, and desired him not to tell his mother, where he (Mr. Meredith was gone; this was about noon; witness received the warrants, about 11 o'clock in the morning. Took plaintiff straight to the Police-office; he was a good deal excited; he had to pass Ferguson's on his way to the Police-office. Reported his arrival with plaintiff, to Major Lord, who desired him to shew plaintiff in. Mr. Meredith remained in the Police-office, about a quarter of an hour; was not in the Police-office while plaintiff was there, but remained in the lobby; plaintiff's being in custody occasioned much talk in the neighbourhood. Plaintiff spoke rather high while in the Office. After some time, Mr. Hepburn[sic] desired witness to shew plaintiff our; witness put his hand upon plaintiff's shoulder, who said, "This is you Captain Hepburn[sic], that orders me to be turned out." Cannot say, Major Lord said any thing respecting Mr. Meredith's being turned out; he was in custody about an hour and a quarter; received the warrants to apprehend, from Major Lord.

Cross-examined by the Solicitor-General - The Bushrangers were in charge at this time; does not remember Mr. Meredith's being a witness respecting Ferguson's robbery. Did not serve any previous summonses; witness never saw Mr. Meredith before he served the warrant; had Mr. Meredith about an hour and a quarter in custody. Witness walked a few yards before Mr. Meredith on the road to the Police-office.

William Hogarth examined. - Was in January last clerk to the magistrates at Great Swan Port; warrant produced is in witness's hand-writing, and signed by Messrs. Lord and Hepburne. The warrant was first given to Con-Williams, but he being a prisoner, Massey was directed to take the service upon himself, and to be accompanied by Williams; saw Mr. Meredith afterwards in the custody of Constables Williams and Massey; he appeared much excited. Mr. Meredith remained in the Police Office about half an hour; he left the Court because he was not wanted any longer. The constables were directed to put him out; they did so. Both the magistrates, to the best of witness's recollection, ordered Mr. Meredith to be turned out; Mr. Meredith expostulated with the magistrates, they then said, turn that man out of Court. Recollects bushrangers being taken; recollects Mr. Meredith being examined as to the loss of his boat; that examination was taken two or three days before Mr. Meredith's apprehension. Knows a man named Nicholson; he was an assigned servant to Mr. Meredith; he had also been examined about the boat.

The Solicitor-general objected to Mr. Gellibrand's mode of examination.

Mr. Gellibrand said, he wished to shew the feeling which existed on the part of Major Lord towards his client; therein, he contended, was the gist of the present action, and he submitted he should be allowed to proceed in his examination. - Objection overruled.

Examination continued. - After Nicholson's examination he was ordered into custody; he was detained by Major Lord's direction; he was in the custody of the military serjeant. Believes, Nicholson was in custody when Mr. Meredith was apprehended, he was in custody several weeks; knows Mr. Meredith; wished Nicholson to be returned to his service. Does not recollect plaintiff's protesting against the whole of his examination not being taken down; knows that the third part of it was not taken down. Witness wrote down the examination; he wrote as much as Major Lord directed. There was not a very kindly feeling existing between Major Lord and Mr. Meredith at the time; witness heard from general report, that plaintiff had placed the boat ready for the Bushrangers on purpose. Letter produced is in witness's hand-writing; it is dated, January 16th, 1833. [The letter was read; it requested plaintiff to attend at the Police-office.]

Examination continued. - Plaintiff attended the Police-office on the following morning; to the best of his recollection, witness saw a letter sent from Mr. Meredith in Major Lord's possession, dated 17th January; is positive there was a letter of that date received by Major Lord from Mr. Meredith; does not know the purport of it; there was also a letter on the subject of Nicholson's detention, but does not recollect the date. Does not recollect Mr. Meredith's explaining to the Court the share he had in placing the boat ready for the Bushrangers. Mr. Meredith did not protest on his examination that the proceedings were illegal, but he did so on his apprehension, and desired me to take a note of his protest, as he should call upon me at a future day. The portion of Mr. Meredith's evidence not taken down had reference to the stealing of the boat.

By His Honor. - The desultory conversation between Mr. Meredith and the magistrates was not taken down, because of its desultory nature. The portion of Mr. Meredith's examination not taken down, was that portion which he was not sworn to.

Cross-examined by Solicitor-general. - Did not hear until the 23rd of January from Mr. Meredith of the circumstances under which his (Mr. Meredith's) boat was taken away. Mr. Meredith received another summons after the 19th of January, for the purpose of obtaining additional evidence; Mr. Meredith did not attend. There were five men in custody at the time the warrant was issued for Mr. Meredith's apprehension, on charge of breaking into the house of Mr. Ferguson. Mr. Meredith, when apprehended upon the warrant, strongly urged the illegality of the whole proceedings. He refused to enter into recognizance to prosecute the Bushrangers, on the ground that no felony had been committed by them upon his property.

By Mr. Gellibrand. - Does not know, from reading the letter produced, that the detention of Nicholson had been the subject of a correspondence before Mr. Meredith's apprehension; can only say, that the letter now produced, is dated prior to Mr. Meredith's arrest.

John Nicholson examined. - Is servant to Mr. Meredith; was so in January last. Recollects Bushrangers coming to his hut; they told witness of their intention to rob Mr. Meredith's house or Mr. Ferguson's. Witness advised them not to attack Mr. Meredith's, because of the dogs. Gave notice of the Bushrangers' intention shortly afterwards, who arranged with witness the plan of allowing them to take the boat, in order to have them captured at Ferguson's. The Bushrangers were taken; was kept in custody for three months, after the capture of the Bushrangers; Major Lord knew he was in custody; asked Major Lord to be allowed to see his master, but was told he could not. Did not speak to his master from the time of his arrest, up to the time of his (the witness) return to his service. Was not allowed to take back his master's boat, which had been in his charge at the time the Bushrangers were brought to the Point.

By the Solicitor-General. - Was examined on the trial of the bushrangers; Mr. Meredith did not tell witness where the sails of the boat were to be found; found them in the house; saw Mr. Meredith only once on the day the bushrangers come to him; did not suggest that the bushrangers should go to Ferguson's instead of his master's; never said he did; informed the serjeant at the Barracks of the intended attack upon Ferguson; gave information about ten o'clock in the morning; told the serjeant, because there was no magistrate at the Point; was detained in custody for his own protection; considers his life to have been in danger, had he not been protected.

By Mr. Gellibrand. - Was not allowed to see my master, although I wished to do so.

Serjeant Smith examined by Mr. Gellibrand. - Was at Waterloo Point in January last; knows a man named Nicholson; he was under the protection of the military; remembers Mr. Meredith applying to speak to Nicholson; witness's orders were to refuse every one; told Major Lord Mr. Meredith had applied; Major Lord said he could not allow it.

By the Solicitor General. - Remembers the attack on Ferguson's by the bushrangers; received information of that attack from Nicholson.

By Mr Gellibrand. - Told Lieutenant Aubin of the intended attack; Major Lord was with Lieutenant Aubin, when witness made the report.

This closed the case for the prosecution.

The Solicitor General address the Jury for the defendants, nearly as follows: "Gentlemen - You are this day called upon to try that which is, in itself, very simple - indeed, I do not doubt, but you are yourselves in some wonder that so much trouble should be given about a matter, in itself, so trifling. After the evidence you have this day heard, conflicting and loose in the extreme as it is, there cannot be a doubt remaining upon your minds, that my clients is entitled to a verdict. Mr. Gellibrand has endeavoured to shew, that my clients detained the man Nicholson, whom I admit had acted in a most praiseworthy manner throughout, from his master's service; but, Gentlemen, what are the facts which have been adduced in evidence this day? - not that my clients detained him against his will and for the purpose of annoying his master, as the Counsel for the plaintiff has endeavoured to shew, but, in reality, at his own request and for his own protection. A man, Gentlemen, acting as Nicholson has acted, is naturally fearful, surrounded as he was by men of desperate characters, of evil consequences to himself. You, perhaps, Gentlemen, are not acquainted with the plaintiff in this action - if so, I advise you by all means to take care that you remain unacquainted with him as long as possible; that you do not, any of you, reside in his immediate vicinity, I sincerely congratulate you. Look at the very neighbourly action which he is guilty of towards Ferguson. - he has no objection to the bushrangers going to his house, but he takes especial care that they should not come to his own. Mr. Gellibrand has to-day, Gentlemen, repeated to you the usual arguments about the liberty of the subject, and the necessity of watching the magistracy, which have been quite common for the last 100 years. If, Gentlemen, it had been proved that my clients had acted from vindictive motives, I should myself say, that no amount of damages would be too large; but throughout the trial, I contend, the contrary had been shewn. My clients were perfectly right in having Mr. Meredith arrested for his contempt. The plaintiff says, first, his boat, &c., has been stolen, and then he refused to prosecute, on the ground that no felony has been committed." He, the Solicitor General, contended, that Major Lord should have gone farther and committed him to gaol. A felony had clearly been committed, although it was a work of supererogation, he considered, for the Attorney General to have filed a bill against the men for stealing the boar, after they had been found guilty of the more heinous offence at Mr. Ferguson's. A case, he remembered, in Birmingham, merely similar to the present in which the doors of the house had been purposely left open, the men were tried and all convicted. As respects the warrants, he contended, they were perfectly legal; he would, however, leave that point for after consideration. A magistrate must be protected in the exercise of his duty; the Jury would, therefore, see, that in this case, even if they thought any damages at all were called for, the very smallest amount would be sufficient. "Mr. Gellibrand," added he, "told you, that the plaintiff was dragged away from his family, (he told you he meant so only figuratively) and a great deal more in the same strain; but when all this is translated into plain English, what does it mean? Why, that Mr. Meredith was treated much more mildly than, had I been in Major Lord's place, he would have been."

No witnesses were called for the defence - but two letters were read, which allowed plaintiff's Counsel the benefit of a reply, and which was made by Mr. Gellibrand in an animated speech.

His Honor then carefully recapitulated the whole of the evidence to the Jury, pointing out all the most material portions, and told them, that it was decidedly his opinion that the warrants were illegal; but he did not believe the evidence went to show a malicious intention on the part of the defendants, to annoy and insult the plaintiff.

The Jury returned a verdict for the plaintiff - damages £50.

Notes

[1] D. Hodgson, 'George Meredith (1777-1856)', Australian Dictionary of Biography, vol. 2, pp. 224-6; J.R. Morris, 'Thomas Daunt Lord (1783-1865)', Australian Dictionary of Biography, vol. 2, pp. 131-2.

[2] See also Colonist, 17 December 1833.

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