[assault - trespass to land, self defence - self defence - land title - Hobart, change of name - nominal damages - costs, legal]

Marsh v. Walford

Supreme Court of Van Diemen's Land

Pedder C.J., 17, 20 December 1831

Source: Tasmanian, 24 December 1831[1]

Assessors - E. Abbott, Esq,. and J. Bell, Esq.

Marsh v Walford

Mr. Solicitor-General. - I am for the plaintiff. This is an action (damages £100) in which D. Marsh is plaintiff, and B. Walford and another are defendants, for an assault. Defendants have pleaded separately - Benjamin Walford not guilty, and Bernard Walford[2] has so also pleaded, but he also pleaded specially that he was lawfully possessed of the piece of group upon which the alleged assault was committed; and that the plaintiff would have forcibly entered thereon, and damaged certain boards thereon, had he not prevented him as he by law could do. There are other special pleas to that or similar effect. The plaintiff replied to these pleas, that the land in question was the property of the Rev. W. Bedford, whose servant the plaintiff was, and acted by his command. The defendant rejoins to this, denying it; the points then principally are now whether the land was Mr. Bedford’s or not. Mr. Bedford’s house is the property of the Government; there is a drain from thence which runs through the locus in quo into Liverpool-street. This land has been granted to Mr. Bedford, in trust for the Chaplains of Hobart Town, resident at the parsonage. On the day in question there was a shower of rain, and the defendant stopped up the drain, piled a quantity of bricks, stones and boards over the drain. Mr. Bedford applied to me to know what he was to do; I went with Mr. Bedford to the spot; I saw Benjamin Walford there at work; I remonstrated with him, but he said he would break Mr. Bedford’s head, or any other man’s who came upon his property. I told him the question of property was not then agitated; I asked as a favour, waving the question of title, that the drain might be opened; I told him it would be very unneighbourly to refuse to comply with such request; I then wrote to Mr. Walford to the above effect; and advised that two workmen should be employed to open the drain. The plaintiff was one of them; they went in the most peaceable manner, when both the Walfords rushed on them, struck them violently, and turned them out, for which this action was brought. I do not ask for heavy damages - but I do wish that such unneighbourly conduct shall not be permitted to pass unnoticed. I will read what is said in the books on this subject. [Mr. Stephen here read several authorities in support of this statement.]

Mr. Stephen. - At the request of Mr. Bedford, on Saturday the 15th October, I went to an allotment which lies at the bottom of a garden; I saw there Mr. Benjamin Walford; I told him that the drain which I understood had been stopped up by him, or his brother, would most assuredly overflow, and do much mischief to Mr. Bedford, unless he allowed it to be reopened, it having rained heavily; he refused to allow it to be opened; for that Mr. Bedford had thought proper to get a grant of his brother’s property, and he would teach him to meddle with such matters; I asked him to go to his brother; he said it was quite unnecessary, for that they were quite determined to break any man’s head who came there without permission; I told him the opening of the drain was matter of necessity; I asked it as a favor; he was very civil to me, but he said if you, or any man come on my ground I will certainly give him a good beating; he was piling up boards triangularly; I remarked upon this; he laughed and said, I should like to see any man touch my boards; I then wrote the letter. [Produced, to the effect is before stated.] I gave it to be delivered to Mr. Walford, either to Mr. Capon, chief constable, or Swift, a constable; in about a quarter of an hour I desired Mr. Walford to let the workmen proceed on the ground; the plaintiff Marsh was one of the men. He is Mr. Bedford’s servant.

Cross-examined by Mr. Gellibrand. - I was on the parsonage ground. Walford was on the close in question, near the drain; there is a considerable quantity of stone, which I understood was for the purpose of building, it has been there for near a twelvemonth; also a quantity of boards and timber joists, &c; I went there as a lawyer; I went also as Mr. Bedford’s friend; in all the previous notices and correspondence I have acted as Crown Solicitor; I did not explain to the Walfords that I asked as Crown Solicitor; I think I said nothing of my being Crown Solicitor, either one way or the other.

Mr. Bedford. - I reside in what is commonly called the parsonage, in Liverpool-street; it is the property of the Crown; it is my official residence; there is an allotment between my garden and Liverpool-street; it is bounded on one side by part of my garden, on the other side by an entrance from Liverpool-street to my garden, on another side by the premises of Mr. Walford, and on the fourth side by Liverpool-street; I recollect the day on which the assault took place; Mr. Stephen came about five o’clock in the afternoon, or rather later; there is a drain which passes through our house, through the allotment in question, joins a drain on premises occupied by Mr. Cleburne, then joins another drain at the back of Mr. Wood’s premises, before it comes into Liverpool-street; that drain was stopped up on Friday, the 14th October; I ordered my servant to open it; he did so; it was again stopped up, just at its mouth, in one corner of the allotment in question; on Saturday morning it was again stopped up, and I sent my servant to open it; Mr. Walford said if he came there again he would beat him; I sent for Mr. Stephen to know what I should do; I did not send my servant on the ground; I was present at a conversation between Mr. Stephen and Mr. Benjamin Walford that afternoon; during the whole of the day Mr. Walford, and other persons assisting him, were employed in making up an embankment of stones and dirt at the mouth of the drain; when Mr. Stephen came there they were piling boards over against it; those boards were over the course of the drain; the workmen could not have opened the mouth of the drain without removing those boards; it threatened rain when Mr. Stephen came, and rained heavily that night; the drain was there when I cam to live in those premises; I commenced to live there in April 1823; there has been no alteration since; I am the person indicated in the grant [produced] as the Rev. William Bedford, Clerk in Holy Orders; I saw you mark the letter (produced) in my study, and deliver it to one of the constables; I gave orders to Marsh, and the men who assisted him, as near as possible in these words.

Mr. Gellibrand. - I object to this, the issue is whether the plaintiff was a trespasser

The Solicitor-General. - It is necessary in order to estimate the amount of damages.

Mr. Gellibrand. - It would be letting in improper evidence. What can it have to do with the real question - the question of command by Mr. Bedford does not arise out of the replication, and it is not legitimate to give in evidence any thing which took place between the plaintiff and a third person, unless in presence of the defendant.

Mr. Solicitor-General. - I contend it is essential to the question of damages. If he went to insult Mr. Walford you would give him perhaps only a shilling - if he went in a mild peaceable manner he is entitled to more.

Mr. Gellibrand. - I contend it is the most dangerous possible attempt at evidence - what if murder had ensued? Could evidence be admitted to -

[Mr. Bedford, the witness, here attempted to whisper to the Solicitor-General, by whom he stood. Mr. Gellibrand stopped - a pause ensued, but nothing was said.]

The Chief-Justice. - If it is objected to, I do not think the evidence can be admitted.

The Solicitor-General continued to examine Mr. Bedford. I gave certain instructions to Marsh, and another man named Jones, relative to that drain; they went on the land in question almost immediately afterwards; it was light enough to see what passed. - Marsh and Jones went towards the board at the mouth of the drain - they entered from Liverpool-street. There was then no enclosure from the street to which it was opened; Marsh got upon the top of the boards, they were about eight feet high. The men took spades with them to open the drain with. Marsh’s manner was not noisy nor violent - his manner was quite peaceable. Immediately afterwards, the two defendants rushed into the ground, and some other persons followed them; they came to the place using very vulgar language; they caught hold of Marsh, one of them on each side. Mr. Bernard Walford struck him a violent blow. I saw no blow struck by Benjamin Walford; he had hold of Marsh by the collar or the after part of his coat or arm; they were pulling him with great violence; Marsh did not strike in return; Jones left off almost immediately. Mr. Capon, the Chief Constable, then went in, and the men came away. I could not speak to more than one blow. The defendant, Bernard Walford said, if I was there he would serve me in the same manner. Marsh’s mouth was cut and bleeding; the drain was not opened and never has been to this day.

Cross-examined. - The drain did run through the allotment of land, and Mr. Cleburne’s premises, and I believe also through Mr. Wood’s, and that drain was in existence before I occupied the parsonage. It is a drain from the parsonage only, and no other place; the soil from my privy did not go into that drain at all; there is a cess pool on my premises, there is a privy over it - the soil goes into it. The cess pool is in the line of the drain, so that if there is heavy rain, the soil is necessarily carried through it into Mr. Walford’s premises. The cess pool is emptied as well as I can recollect once in two years, I should think it had been emptied within twelve months of the time in question. The overflowing of the cess pool passes into the drain. [A long discussion here took place as to whether all the evidence as to the drain was not irrelevant to the issue, which was simply as to an assault. It was finally decided by His Honor that the evidence should not be given.] The Solicitor-General stated that he should then object to every thing which was offered in evidence which was not strictly legal.

Mr. Gellibrand, - Now, Mr. Bedford, I ask you do you not consider yourself liable for the plaintiff’s costs in this action.

Mr. Bedford. - I do not.

The Solicitor-General. - I now object to this evidence; it should have been given at starting upon the voir dire.

Mr. Gellibrand. - I deny it - I assert the direction contrary, go on and argue your objection.

The Chief Justice read from the books that Mr. Gellibrand’s statement was correct, that the question could be asked at any part of the trial.

Mr. Bedford - I have furnished the plaintiff with no funds to carry on this action; if the plaintiff should fail, I do not consider myself in honor bound to pay the costs, nor do I intend to pay them. I do not intend to pay them, nor do I expect to be called upon to pay them. I have not known that Mr. Walford even was in possession of the land in question.

Have you not seen him on the land? - I have.

Has he not told you he claimed the land? - He has.

Did you see Mr. Walford on the premises when the stone now there was brought? - Very frequently.

So also as to timber? - Yes.

Did you not endeavour to purchase this piece of land? - I was employed by the Government to purchase the land.

Of whom? - Of Ballinger.

When? - Five or six years ago, I proposed to Ballinger to purchase this land.

Is not the spot where the drain is stopped up part of the very land? It is.

What did you offer for it? - Ballinger made two propositions; one was that if he could find as good an allotment, one which he considered as good as that, and the Government erect buildings, as good as were his then standing, and give it to him; he would relinquish it. The second was, if he could not find one equally good, he would take another allotment which might not be quite so good, and remove every thing off the land, and receive one hundred pounds in money he would relinquish it. These were acceded to by me on the part of the Crown, but he went off his bargain; I am the person indicated in the grant. Ballinger has never received any thing in compensation for his land; I now claim this very identical piece of land, without the Crown having given any consideration for it, so far as I know.

Mr. Gellibrand. - In putting to you the following question, I mean nothing personably offensive, but my duty to my client compels me to make it.

Are you a clerk in holy orders? - I am.

Only in the Colonies? - I should be a clerk in holy orders in England.

But only as respects the Colonies?

The Solicitor-General. - I object to this question; it is really extremely offensive - it does not apply to the issue. Does Mr. Gellibrand mean to object to the grant because Mr. Bedford is there described as a clerk in holy orders.

Mr. Gellibrand. - I do.

The Solicitor-General. - Then I object to the question, because whether Mr. Bedford is not a clerk in holy orders as described in the grant, depends upon the letters of ordination, which no man carries about with him, and which I have had no notice to produce.

Mr. Gellibrand. - I stand here to ask a question which may and will perhaps create a legal discussion. I never would lend myself to any client to ask a question for the purpose of hurting any man’s feelings, but the question is of great importance.

The Solicitor-General. - Then the same objections would arise as respects every man who writes himself Esquire; we are all Esquires from Mount Wellington to Benlomond.

The Chief Justice. - Would it not be enough for him to answer, I am generally reputed to be clerk in holy orders.

[Mr. Bedford here stated to the Solicitor General apart, that he hade officiated in four, may be might say a dozen churches in England.]

Mr. Gellibrand. - We will pass on then. Now, Sir, I understand you say you sent the plaintiff on the land on the Friday before? - He went there by my commands; he removed a quantity of stones which were lying on one part of the property to another; on the next day the defendant erected an embankment; I understand from both defendants that Mr. Bernard Walford claimed possession of the land; he was at that time exercising the ownership; Mr. Benjamin Walford told me before I sent Mash there that he could not permit him to go on; I had the assistance of constables at the time, by Mr. Stephen’s directions, to prevent a breach of the peace; there would not have been a breach of the peace had not my servants gone on the premises; when Marsh went on to the premises no person was there; he and Jones went, and there were constables stationed alongside when they went; they had spades and commenced moving the boards; one or two were removed; Bernard Walford called out that he would break their necks, and their backs, and so forth, if they did not come down; Marsh at that time was on the timber; he was in the very act of throwing it down; I did not hear Mr. Walford tell him to come off the timber any otherwise than I have mentioned; I was at this time 90 or 100 fee6t from the spot; Jones desisted, Marsh did not desist; and then defendant caught hold of him; Marsh was on the boards; the defendant got part up; I cannot be prepared to swear on which side the triangle the defendants went up; I have told you over and over again, Mr. Gellibrand, that I am not prepared to swear which side of the triangles they went up, nor that they did go up, but that I saw both the defendants have hold of the plaintiff, on each side of him; I cannot say on which side of the triangle this took place; Bernard Walford’s face was towards me; I saw the blow struck by Mr. Bernard Walford; I told the men then to go home to their work.

Re-examined. - The constables went in immediately; they were stationed there for that purpose entirely; with the express instructions that they were to prevent bloodshed. [Here a plea of the locus in quo was shewn to the witness, to describe where, the affair took place.]

The Chief-Justice. Then the defendants did caution them not to go up.

Mr. Bedford. - They came up and rushed on.

The Chief Justice. - Yes; but they did tell them not to go up before the assault; if such there was.

Mr. Bedford. - They called out they would break their necks before the assault; when I negotiated with Mr. Ballinger I was directed solely to ensure who had, in fact, possession of the piece of land, and finding that Ballinger had, I sent for him, and the negociation took place, and -

The Chief Justice. - Really, Mr. Bedford, it would be extremely convenient if you would simply confine yourself to the question put to you.

Mr. Bedford. - I understand it was his land; my negociation with Mr. Ballinger was prior to this letter. [Produced, dated 1825.]

[It is impossible here to give a correct report of this witness’s examination, because we never witnessed in the course of all we have seen of judicial examinations, such difficulty experienced in getting direct answers.]

Mr. Burnett. - I am Colonial Secretary; the grant produced is under the great seal of the Colony, and the hand writing of the Lieutenant Governor; the grantee indicated, is, as I understand, the last witness, Mr. Bedford.

Cross-examined. - It is grant No. 1; it is stated the Rev. Mr. Bedford, Hobarton; I conceive it means Mr. Bedford, the Colonial Chaplain, of Hobart Town. It may be a clerical error; I believe the word Hobarton to be intended for the town in which we reside.

Re-examined. - I have seen Hobart Town written, and heard it called Hobarton.

Chief Justice. - It is a most absurd and foolish thing, and I shall say so here, the changing names in this way; this is done, I suppose, by some public authority to the King may change the name if he pleases.

Mr. Burnett, - I never did write it so in any official document.

Chief Justice. - The remark I have made, is because it does not appear that any authority exists for such change; and it gives rise to the legal difficulties which Mr. Gellibrand has suggested.

Mr. Sorell. - The grant deed produced has been enrolled in this Court; this is the enrolment of it.

Cross-examined. - I have not adopted the change of words; it is enrolled here Hobart Town.

Mr. Gellibrand. - Then I say the grant produced has not been enrolled.

The Solicitor-General. - But I say the enrolment is the grant itself, and therefore the difficulty is corrected.

Chief Justice. - I do not understand that the enrolment is more than the transfer on the rolls of the Court of the grant; it is only evidence, until the grant itself is lost; the grant is not complete without it, but it is of itself not the original grant.

The Solicitor-General - I think I can show your Honor, that the enrolment of a grant, is the grant itself. [He here read a passage from Phillips in reference thereto.]

Chief Justice. - Very good; but this only proves that the instrument has been enrolled. If the instrument itself is produced, it is surely of superior authority.

The Solicitor-General. - Mr. Frankland has gone for the book in which the parish in which Hobart Town is situated, is called Hobarton.

Chief Justice. - Have we parishes here?

The Solicitor-General. - This is the King’s grant, and surely the King may change the name of his town if he pleases.

Chief Justice. - Yes! But it must be by some Royal commission. I apprehend the change of Plymouth Dock to Devonport, was not effected by a mere clerk’s writing.

Mr. Sorell. - The enrolment and the grant differ; in one it is Hobarton, in the other it is Hobart Town; two letters are omitted, and there is also a difference between two words, and one word; there is no other grant yet enrolled with me; there is no other difference between the two, but the spelling.

The Solicitor-General. - I now put in the grant.

Mr. Gellibrand. – I object to it. There is no proof of its being enrolled, and it is therefore incomplete.

Chief Justice. – I shall note the objection.

Mr. Gellibrand. - It is fortunate that this objection has been made, only this one grant having been issued. (We understood Mr. Gellibrand to raise two points. One, that in the grant itself the description was Hobarton, there being no such place. Secondly the discrepancy between the grant and the enrolment, the former Hobarton, the latter Hobart Town.)

Edward Jones. - I am servant to Mr. Bedford; I assisted Marsh to open a drain to Mr. Walford’s allotment; we began to pull off two or three boards before the drain, to open it; it was on a Saturday; the two Walfords came, in about five minutes; they came in, and desired me to put those boards down, which I accordingly did; I had a board in my hand, which Marsh was handing to me off the stack, when the Walfords came in; Mr. Walford said to Mr. Bedford’s man, "do you come off there," he said, "I must do as my master orders me," both the Walfords jumped upon the stack, and began to pull him off; one held him, and the other hit him; one was holding him fast so that he could not get away from him; I went by Mr. Bedford’s orders; the only words Marsh spoke, were, he was to do as his master ordered; they pushed him off the stack; Mr. Capon, the chief constable, came up, and said it was enough, and then both of us went off the ground; the Walfords walked on the ground;’ Mr. Stephen stood on the outside, in Liverpool-street.

Cross-examined. - Marsh was told to come down the moment Walford came on the allotment; they did no more; but one held him, and the other beat him.

Mr. Frankland. - I am Surveyor-General; except the spelling, there is no difference that I know of, between Hobarton and Hobart Town, in the locality; it is one and the same place; the intended parish is proposed to be called Hobart; the Police Districts take the name of their Head-Quarters; strangers direct letters Hobarts Town; that is in consequence of the barbarity of calling it Hobart Town. [Mr. Frankland here described on a piece of paper, the land described in this grant. (produced.)] I know of but one Liverpool-street in Van Diemen’s Land.

Cross-examined. - There are some paper towns, existing only on paper; I do not know who christened this place Hobarton; it was called Hobart, Hobart Town and Hobarton, and I have adopted the latter, as most to my taste; I am not certain whether I have ever seen a grant in which the word Hobarton is used; but all the location orders are so called, by my authority, [Two grants of Mr. Gellibrands produced, the description in one Hobart Town, in the other Hobart.]

Mr. Capon. - I was present on the occasion in question; Bernard Walford went to the allotment when the men were removing the boards, and as he went I requested of him not to use any violence; he was not in any state of excitement; I heard Bernard Walford say, come off the ground, for if you do not, I will break your head; Bernard Walford was pulling the man from the boards, and Benjamin Walford was endeavouring to loose his hold of the boards to which he was clinging. Mr. Bernard Walford hit him in the face with the back of his open hand; his mouth bled; the conduct of the men was peaceable; I do not know the man’s name, one of them is the grave digger, Bernard Walford said, in answer to Mr. Bedford, I would serve any man so who come upon my premises in such a manner; when the men were ordered off by Mr. Walford. Mr. Bedford said, why do you not go on men, or, why do you not go on as I order you, or words to that effect; before the thing began, I asked Mr. Stephen what he required of the constables, he said Mr. Bedford had been annoyed by having his drain stoped, and he has sent to open it; Mr. Stephen was in Liverpool street when the Walfords went to the boards; the Walfords tried to pull him off before Bernard struck him; [the grant and the enrolment was now read]; Mr. Stephen wished me to prevent any breach of the peace. His Honor then continued to the following effect. - Mr. Bedford admits that possession of the premises in question has been for a length of time in the defendants, Walford. A drain from Mr. Bedfords house passed through it, which the defendant having stoped up, Mr. Bedford sent the plaintiff to open it. Different accounts of what ensued are given by the witnesses. His Honor here read the whole of the evidence.

This was the plaintiff’s case.

Mr. Gellibrand. - This case may be easily seen to be not that of the plaintiff, but a pet child of the Solicitor-General’s. I am alw ays desirous of laying the real merits of every case in which I am concerned, fully before you. The land in question, for some reason I cannot comprehend, has been granted to Mr. Bedford, and he is desirous to get possession of it. The legitimate method of doing so, is not by sending his servants with shovels and spades, to take it by force of arms, but by the regular process of the law. Mr. Walford had been beset with letters, and applications, and notices of all sorts, from the Solicitor-General, and although you, gentlemen, and I, would have no hesitation in trusting to the Solicitor-General’s word, the defendant thinking that possession is nine points of the law, considered that the digging of the soil by Mr. Bedford’s servants, might place his possession in jeopardy. Does not this Rev. Gentleman, knowing that he had notice that any attempt to take forcible possession would be resisted, send them, notwithstanding, to do so, and provides the police to be in readiness to act, should bloodshed ensue. What is not such conduct as this? These men are sent with spades to commit a trespass, and destroy the property of the possessor - the peaceable, and quiet, and long established possessor of the property in question. Mr. Walford says, I am in possession of this allotment. The plaintiff comes with the strong hand to dispossess me - I find him trespassing upon my property - he does not go, as I request him, and therefore I put him out, as I have a right to do. [Mr. Gellibrand here went through the evidence, commenting as he proceeded.] I might, if I chose, make some observations upon the spirit of some of the evidence which has been given; but I refrain from doing so, from motives which I think you well understand, and appreciate. I can, with safety, leave it in your hands. Mr. Benjamin Walford may have an assault proved against him, and One Farthing damages will abundantly compensate him. As respects Mr. Bernard Walford, he is entitled to your verdict, for the trespass upon his property is clearly proved, and he was entitled to put out the trespassers; and the only point then arising would be, whether he had used greater force than was necessary. But this question is not raised by the pleadings in this case, and unless it had been so raised, you cannot enter upon it. Mr. Bedford’s grant having been put in, the soil would be proved to be in him, was it not that the length of time of possession, and other circumstances presume a grant to my client, and when the proper time comes, I shall be able to shew that grant No. 1, is utterly worthless.

The Solicitor-General claimed one observation in reply. It is, that you cannot assess damages against one defendant, you assess jointly against both.

The Chief Justice commenced his charge to the Assessors with explaining the effect of the pleadings, and went through the whole of the evidence, commenting, as he proceeded, upon the most material points. After a very lucid explanation of the law as applicable to the case, the Assessors retired, and upon their return, the following verdict was delivered - For Plaintiff, on all the issues Damages ONE SHILLING!

Subject to the points of justification pleaded, and the points of law reserved.

The effect of this, as to costs, is singular. As against Mr. Bernard Walford, he having pleaded special pleas of justification, any, the smallest sum, would carry costs; but, as against Mr. Benjamin Walford, who pleaded only Not Guilty, less than 40s. damages would, under ordinary circumstances, not carry costs. The Chief Justice’s certificate, however, in this, as in ordinary cases, would give the Plaintiff costs. But it would seem that, in this particular case, it is of very little consequence whether the Chief Justice’s certificate be given or not. For as, according to the lawyers, there can "against joint trespassers" be but one remedy, it will sufficiently answer the Plaintiff’s purpose to levy his costs against the one defendant, who confessedly is liable to them. But then, he has still a chance of succeeding eventually on the point of law, raised as to the enrolment of the Crown Grant. In that case, who will pay the Piper? Truly the law is a magnificent science; as sublime in conception as beautiful in detail. The only objection to the thing is, that people cannot understand it. But, what is that to the Lawyers? That is not their fault.

Tuesday, December 20, 1831

Mr. Gellibrand drew the attention of the Chief Justice to the circumstance, that he apprehended it had fallen from His Honor that he was bound to certify in such a case of that of Marsh v Walford, where, in fact, it was invariably left to the discretion of the Judge to certify or not as he might please. Mr. Gellibrand added, that in twenty two years experience, he had never yet met with a case in which a Judge had certified in any case where such small damages had been given. Mr. Gellibrand read from the books some authorities in the favor of his position.

The Chief Justice. - I think you have quite mistaken what fell from me; it was the first case which has occurred. I did not certify on Saturday, but I certainly did signify that I should certify, should I be called upon so to do, considering tat case one in which I ought to certify. However, I have not made up my mind on the subject.

Mr. Gellibrand. - I think I can shew your Honor, with great submission, that there is much to be said on the opposite.

The Chief Justice. - I shall be happy to hear you.

Mr. Gellibrand. - In this case, Mr. Bernard Walford committed the battery, and Mr. Benjamin Walford did not. It is hard therefore that he should be saddled with costs, he not having committed battery, although by the verdict being against both, he is found guilty also.

The Chief Justice. - Yes, but if one man holds another while the third strikes him, both are equally guilty of battery.

The Solicitor-General confirmed this by reference to some authorities, and the matter dropped.

Pedder C.J., 3 April 1832

Source: Tasmanian, 7 April 1832[3]

Marsh v Walford. - Mr. Gellibrand moved for a new trial, or that a verdict as in case of a non-suit, be entered for defendant; Mr. Gellibrand went through the whole case, and argued that the assault originated with Mr. Bedford, who by having a posse of constables on the spot, his men armed with spades and pick-axes, and by other demonstrations proved his expectation that his illegal attempt to take forcible possession of the close in question would be, as it was, resisted, Mr. Gellibrand argued that the attempt to remove the boards, as by Mr. Bedford’s own evidence appeared to have been made at the time when Mr. Walford interfered, was a justification for that interference. Mr. Gellibrand commented upon the manner in which GRANT № ONE to Mr. Bedford of the close in question had been made, which he described as a "feeler," put forth to discover how this resumption attempt would be received. A long discussion here ensued as to what is the real legal name of the town we live in, whether Hobart Town, Hobarton, or Hobart. The only evidence to this, was Mr. Frankland’s, which left the matter where it was. Mr. Gellibrand insisted, that the close being described in the Grant as in Hobarton, being enrolled as in Hobart Town, was in fact and in law no enrolment at all. Then followed a long and very dry discussion as to the description in a deed necessary to convey property, and the result was that Mr. Gellibrand obtained a rule to shew cause on Friday, to which day the Court adjourned.

Notes

[1] See also Colonial Times, 21 December 1831; and see Hobart Town Courier, 24 December 1831, noting the following:

"Mr. Frankland, the Surveyor General, was then examined. Except the spelling there is no difference that I know between Hobart town and Hobarton. The intended parish is proposed to be called Hobarton. The police district takes the name of head quarters. Strangers direct letters Hobart's town. (By Mr. Stephen), that is in consequence of the barbarity of calling it Hobart town. Here Mr. Frankland described the position of the allotment on paper.

"Cross-examined - There are some paper towns existing only on paper. I do not know who christened this place Hobarton. It was called Hobart, Hobart-town and Hobarton, and I have adopted the latter as the most to my taste. All the location orders are so called by my authority."

[2] Bernard Walford had been a convict, see M. Fels, 'Culture Contact in the County of Buckinghamshire, Van Diemen's land, 1803-11', Tasmanian Historical Research Association Papers and Proceedings, vol. 29, 1982, p. 73.

[3] The action was back in court on 6 April, when it was adjourned: Tasmanian, 7 April 1832. The same happened on 10 April 1832: Tasmanian, 14 April 1832; and on 17 April 1832: Tasmanian, 21 April 1832 .