[New Zealand, purchase of – assault – jury, special]

Green v. Jones

Supreme Court of New South Wales

Stephen J., 30 October 1840

Source: Sydney Herald, 31 October 1840[1]

            Before Mr. Justice Stephen, and a Special Jury.

            Green v. Jones. – This was an action brought to recover damages for an assault, alledged to have been committed on the plaintiff by the defendant, on the 28th June, in the counting room of the former.  To this the defendant pleaded first not guilty of the assault; secondly, that the plaintiff had previously committed an assault on the defendant, who in self defence had committed the assault complained of.  The circumstances of this case were these– The plaintiff is a boat-builder, residing in the vicinity of Sydney, and the defendant Mr. John Jones, an extensive shipowner, and one of the three persons who had purchased the whole of the southern Island of New Zealand from the aborigines.  It appeared that some time before the day on which the alledged assault occurred, the plaintiff had gone to New Zealand, and returned from it in one of the defendant’s vessels called the ‘Magnet,’ Captain Bruce, with whom the plaintiff had quarrelled on the voyage, and on the day in question, while at the defendant’s counting-room, getting an account for some ballast settled, Bruce’s name was mentioned, when the defendant said that he understood the plaintiff had been the cause of all the disturbance on board the vessel, which the plaintiff denied.  The defendant afterwards accused the plaintiff of having while at New Zealand been guilty of purchasing some of his (the defendant’s) land, on which the plaintiff called the defendant “a liar,” the defendant immediately left his seat telling the plaintiff he was an impudent scoundrel to call him a liar in his own counting room.  A scuffle ensued in which the defendant got his lip cut and his eye blackened, after which they had a regular set to, when the defendant threw the plaintiff on the floor and when he got up he ran him into a corner, on which the plaintiff let his arms fall, telling the defendant he would not strike him, on which the defendant said “what impudence to say you wont strike me, look at my lip and my eye, you have struck me enough already.”  Water was provided when they washed their wounds and wiped them with the same towel, after which Green said he would take no more notice of the matter, provided the defendant would go out to the green with him and have a bellyful as he (Green) was the little boy that could do it now, as he had done it seven years ago.  The defendant refused, alleging that he was no fighting man, but he would not be insulted in his own house after which the defendant heard no more of the matter till the present action had been brought.  The Attorney-General who appeared for the plaintiff, was sorry that the gentlemen of the Special Jury had been called on to try such a case as the present, which might have been as well tried by a common Jury: but the defendant had applied for it, and had probably done so, being one of the three lords of the soil who claimed the whole of the southern island of New Zealand; but although he was one of the Princes of New Zealand, he trusted that the Jury would teach him to be a little less active with his hands than he had been.  The only witness the plaintiff had to produce was the defendant’s clerk, who did not see the first blow struck; but who had been told by defendant that the plaintiff struck first, he also heard the plaintiff call defendant “a liar,” and heard the challenge given to fight for a bellyful, and also saw them have several rounds.

            Mr. a’Beckett, for the defendant, submitted that there was no evidence that the assault had been committed; but, on the contrary, that the plaintiff had in a most impudent and unwarrantable manner insulted, and afterwards when about to be turned out of doors, he had sued his fists on the defendant’s face.

            His Honor, in putting the case to the Jury, instructed them to frame their verdict so as to distinguish between the pleas filed by the defendant, as it would affect the question of costs, for if the defendant had put the first plea unnecessarily on the record, then he was the proper party to be saddled with the costs of that plea, even if they should find for him on the second plea, on which issue had been joined.  The Jury returned a verdict for the defendant, it not being proved to them that any assault had been committed.

            Mr. a’Beckett, for the defendant, applied to his Honor to certify for a Special Jury, but he refused to do so, alledging that the case might as well have been tried by the Police Bench or the Assessors, as by twelve Special Jurors; he was sorry to see that the Special Jurors had been so inconvenienced during the present term by the greater part of the business being thrown upon their hands, and in such cases as the present he would never certify, but leave the parties who applied for them to pay the costs.

            Counsel for plaintiff the Attorney-General and Mr. Darvall; Attorney, Mr. G. R. Nichols.—Counsel for defendant, Messrs. A’Beckett, Foster and Windeyer; Attorney, Mr. C. D. O’Reilly.