[malicious prosecution - defamation - perjury - bill of exchange - Sheriff, personal litigation - debt recovery - warrant of attorney - trials, length of - law reporting]

Fereday v. O'Connor

Supreme Court of Van Diemen's Land

Pedder C.J., 13-16 December 1831

Source: Tasmanian, 17 December 1831[1]

Assessors

A. Moodie, and J. Beamont, Esqrs

The Court sat at a few minutes past 10. The Solicitor-General Stephen stated the plaintiff’s case in a speech occupying no less a period of time than from twenty minutes past ten to a quarter before two o’clock. It is impossible, therefore, for our limits to contain more than a mere outline of Mr. Stephen’s very able and energetic address. The leading points of it were to the following effect:-

This is an action brought by Dudley Fereday, Esq., Sheriff of this Colony, against Roderic O’Connor, Esq., Surveyor-General of Roads. Both these gentlemen are so well known, that it is unnecessary to make any references thereupon. The declaration contains twelve counts. The first seven are for malicious prosecution, each varying from the other in necessary particulars. There are then four for verbal slander, and one for libel. The latter, however, I shall be compelled to abandon, in consequence of an order of this Court, that the proceedings at the Police office shall only be produced in reference to the malicious prosecution. To this declaration the defendant has pleaded first the general issue, not guilty generally, which, as to the counts for malicious prosecution, puts in issue all the facts of the charge. With respect to the slander, the plea merely goes to the effect that he did not speak as he is charged. But then, gentlemen, you will perceive that the defendant has thought proper to justify his charge of perjury against my client, detailing in his pleas in full, those parts of an affidavit made by my client some time back filed in this Court, in a cause Young v McShane. There are no less than nine different charges of perjury, or assignments as they are called, again made by these pleas against Mr. Fereday. [Here Mr. Stephen went through the pleas seriatim, as he had before done by the counts of his own declaration, commenting upon the effect of each as he proceeded, but the substance of the whole will be already sufficiently understood, to render repetition unnecessary.] Such is the outline of the case, as it appears upon the record. I shall now proceed to submit to you the whole circumstances in detail, and in so doing, I shall not only have occasion to occupy a very considerable portion of your time, but I must also crave your very earnest and particular attention; for there never was a case which came under the consideration of any Court, which had greater claims upon it than the present. In the month of October 1828, Mr. Fereday discounted a bill of exchange for a man named McShane. A few days before that bill became due, Mr. Fereday paid it away to Mr. Young. It appears that he did not receive any money from Mr. Young for this bill, but he did receive consideration for it. He took what is called an I.O.U. an instrument in daily use, as a very common method of transacting business. Mr. Young paid the bill into the Derwent Bank. It was dishonored when due; he proceeded upon it, and having obtained judgment, execution issued, and the property of the defendant was sold thereupon. On the morning of the sale, McShane waited upon the sheriff, and asked of him to postpone it. Mr. Fereday referred him to Mr. Young, the plaintiff in the case. Soon afterwards McShane returned to Mr. Fereday, bringing with him a Mr. Roberts, with whom he had concluded a sale of some sheep, to the amount of £100. But such not being delivered, it was agreed upon between them, that Mr. Roberts should accept a bill for that sum, which should accept a bill for that sum, which should be deposited in the hands of the sheriff, an arrangement to which the latter consented, having as you will understand, a contingent interest that the bill should be paid, which he imagined this proceeding would tend to effect. It was, however, clearly left with the sheriff solely as the depositary between the parties, because it was an express condition, that if the sheep for which it was given were not delivered by McShane, that the bill should be delivered up to Roberts. The parties then left the sheriff’s house, and there that part of the transaction ended. [Here Mr. Stephen detailed the precise circumstances of that part of the case, describing minutely every thing connected with it.] The sale of McShane property took place as advertised, and it fetched 170 guineas, a sum considerably more than was expected, or than McShane himself would gladly have before taken for it. At the sale there were several previous lots put up, which, when Mr. Hays the under sheriff who sold, had disposed of, he made a short stop, not knowing whether McShane’s sale was to go on. It was but momentary, and the result was as I have stated. Entries of all sales are regularly made in a book kept for that purpose in the Sheriff’s office. One of the lots was under an execution Murray v Wells. The property advertised in that case had been claimed, and the sheriff had decided upon not putting it up. Soon after the sale, a man named Carron, one of the sheriff’s bailiffs, told McShane the sum for which his property had been sold. McShane immediately returned to the office, demanded the difference between the amount of the execution at the suit of Mr. Young and the produce of the sale, and seemed highly pleased at the high price his property had fetched; "chuckling", to use the expression of one of the witnesses, as well he might, at his good fortune. Here this mighty matter ended, and here it would have slept the sleep of death, but for the malice of others who revived it to gratify their own base purposes. In May or June 1829, Mr. Fereday dismissed Mr. Hays from the office of under sheriff. It will be proved to you that this man vowed bitter revenge against Mr. Fereday for this, and the effect produced thereupon was exhibited, by McShane being induced by him to address a memorial to the Lieutenant Governor, which was in Hays’s hand-writing, complaining of the sheriff’s conduct in the sale of his property, under the circumstances I have detailed. Upon that memorial have arisen the whole subsequent proceedings - the application to this Court against Mr. Fereday and Mr. Young - the affidavits filed in that case - the prosecution by the defendant of the plaintiff for perjury - and this action for that prosecution. The ground of McShane’s complaint was, that the sheriff consented to take Roberts’s acceptance, deposited with him as I have stated, in part payment of the execution, and that in consideration thereof, he agreed to postpone the sale; instead of doing which, he nevertheless sold the property. To this statement Hays swore distinctly. Mr Fereday applied to Mr. Roberts and Mr. Young for their affidavits in reply. They made such, in which they directly contradicted the charges of McShane and Hays. The matter was decided, and there again it would have slept, and been no more thought of, but for the conduct of the defendant. It appears that in June 1830, McShane accidentally met Mr. O’Connor and gave a full report of his complaint against Mr. Fereday. Mr. O’Conner, however, thought nothing of it, for so long a period as from June 1830 to May 1831. For eleven months it reposed in Mr. O’Connor’s breast, and so it would for ever have continued to do, but for one of those little circumstances from which, very often so much results. It seems that Mr. O’Connor had cast his eye upon a piece of land adjoining his residence at Cottage Green, late the property of a Mr. Hammond, but which was about to be sold by his executors in discharge of an execution issued by a Mr. Gavin. Upon this spot Mr. O’Connor appearing to have set his heart, concluded an agreement for its purchase by private contract from the executors of Mr. Hammond, for the sum of £300, The Sheriff was applied to by Mr. O’Connor to sanction this private purchase. He refused however so to do. He certainly could have taken Mr. O’Connor’s offer, as the sum he had agreed with the executors of Hammond to give for it exceeded the amount of Gavin’s execution. But Mr. Fereday considered it necessary to the proper discharge of his official duty to sell it by public auction, and it was eventually sold for £430 to Mr. Hewitt, to the great disappointment of Mr. O’Connor. Hence that deadly enmity which vented itself as I am now about to come to. Up to this moment Mr. Fereday had never given Mr. O’Connor even the shadow of offence. And yet, gentlemen, you will hardly believe it possible, that Mr. Fereday having not considered it proper to go out of the line of his duty to oblige Mr. O’Connor, so very trifling an offence as this, drew upon him the dreadful consequence of an attempt to take away - nor his life - more than his life - for such is a criminal prosecution for perjury. The sale of Hammond’s land took place on the 5th April; and Mr. O’Connor will be found commencing operations against my unfortunate client, with hardly a moment’s delay. Within a few days he himself addresses a memorial to the Lieutenant Governor, in which he charges Mr. Fereday with selling Hammond’s land, for the purpose of gratifying private enmity against him, Mr. O’Connor, merely turning his office into a vehicle for so base a purpose as the gratifying private animosity. To this memorial Mr. Fereday was called upon to reply. He brought an action against Mr. O’Connor for the libel upon him it contained - and lo! The long forgotten complaint of McShane against Mr. Fereday is revived, and proceedings are commenced against him in the Supreme Court. I do not say that Mr. O’Connor instigated McShane to this, because the man is dead. He is gone to render his great account, and I cannot bring him here before you, to get from him, as I feel satisfied I could, under the test of a public examination - the fact which I believe, as much as that the sun now shines, that Mr. O’Connor did instigate him to these proceedings. McShane did not come alone to the attack upon Mr. Fereday. He is accompanied by another; by this Mr. Hays - this man, dismissed as I have told you by Mr. Fereday from his office. [Here Mr. Stephen commented with great severity upon Hays’s conduct.] Gentlemen look at all this. I assert that if such proceedings as those can go on no man’s life is safe - no man’s existence is worth preserving here. If such prosecution as these are to be set on foot - if such attempts at destruction as these are to be made with impunity, a state of things will exist too dreadful to contemplate! If such horrible attempts as those I have described, and are about to describe to you, are to go on unpunished, no man’s existence can be considered safe for a moment! Gentlemen, I will show you that Hays has half confessed the base motives which induced him to set McShane upon the sheriff - I will prove to you in evidence that he threatened to be revenged upon him, by the adoption of an expression, Colonial certainly, but well enough understood, expressive of the determination to gratify the basest purposes of the deadliest revenge. [Mr. Stephen here went through the whole of the affidavits filed in the Supreme Court, upon the application of McShane against Mr. Fereday, commenting upon them as he proceeded.]

The Chief Justice. - Is it a charge of perjury against Mr. Fereday, that he swore to the order in which the sales took place erroneously?

The Solicitor-General. - Yes, Sir! This very trifling circumstance, is charged as wilful and corrupt perjury. How would Mr. O’Connor himself like to have to answer here for every word which may have fallen from him - how will he hereafter like to have his every action, tried in such a balance as this? Can any thing more vindictive be imagined than conduct such as this. Mr. O’Connor finding that an action for libel was instituted against him, in respect to his memorial to the Lieutenant Governor, endeavours to meet that action by a prosecution for perjury. On the 19th May, Mr. O’Connor taking upon himself to be the protector of the morals of the Colony - to take upon himself the duties of Attorney-General - to become a public prosecutor - appears at the Police office to make his charge against Mr. Fereday - this awful charge, than which nothing more dreadful can be contemplated. He does not present that he is solely influenced by his regard for McShane, because if he had done so, why did he not proceed when McShane first complained to him so many months before he avows that he does so to injure Mr. Fereday’s character! Gentlemen, I leave you to form your own opinion of the man, of any man, who coolly and deliberately can go to the Police-office and there charge a fellow creature, with a dreadful crime, he himself not having a shadow of concern - not being in any possible way interested in the matter, but actuated solely by the basest passions of hatred and revenge - to seek the destruction of a man who had never injured him, and who if we[sic] had, it would have been the honest course to have met face to face and sought reparation, without seeking to destroy him, under the base pretence of public justice, under the circumstances I have just stated - totally unconnected with the whole matter; and after such a lapse of time, dead and buried to all intents and purposes, as was the whole affair, until Mr. O’Connor chose to rake it up for the gratification of his own base passions. And by what evidence does he seek to support his charge. [The Solicitor-General here drew a very vivid comparison between the claims to credibility of Mr. Fereday and Mr. Roberts on the one hand, and Mr McShane’s witnesses on the other; in the course of which he again commented with great severity upon Mr. O’Connor’s conduct, in having instituted the prosecution against Mr. Fereday, himself totally unconcerned in the matter.] Now, gentlemen, I wish to explain to you that to constitute perjury, the mind must be in fault, and it must be directed by some wicked and fraudulent design. If statements made under other circumstances were to constitute perjury, you and I gentlemen, (indeed who might not,) might in the course of our lives become placed in the power of any scoundrel, who unconnected and unconcerned, but solely to gratify his malicious purpose, might go to the Police-office and exhibit charges against us! Mr. O’Connor is a public officer - a very wealthy man - a great capitalist - a large land-owner - a great proprietor of stock - supported by very high talents; now, gentlemen, imagine such a man thus instituting a charge against you at the Police-office, affecting more than your life, what sum of money would induce you to pass the ordeal Mr. Fereday has undergone for several days, even for one little half hour! I will show you Mr. O’Connor hunting up for evidence against Mr. Fereday - I will shew him to you going to Mr. Gavin at the dead hour of the night and asking him to help him in his case, in reference to Mr. Fereday’s action for libel, using the remarkable expression, "I am ruined," and so well he might consider himself, if the loss in the estimation of every honorable man can effect such, as must be the certain consequence of his coolly and unfeelingly seeking to utterly destroy Mr. Fereday, for the gratification of his own vindictive feelings. [Mr. Stephen here read Mr. O’Connor’s cross-examination at the Police-office, which he commented upon with great severity.] Gentlemen, here you find Mr. O’Connor admitting that he was not instigated by the Attorney-General - that he had no interest whatever in the matter - yes! The interest of destroying Mr. Fereday’s character, in reference to the action against him for libel. [Here. Mr. Stephen read from Mr. Hays’s examination, and all the other evidence taken at the Police-office, contrasting the conflicting statements they contained.] Now, gentlemen, I will shew to you that so palpable was the motive in which the prosecution originated, so totally divested was it of all probable cause, that the magistrates dismissed it without one single witness being examined on the part of Mr. Fereday - without even McShane being cross-examined. The chief police magistrate thought it expedient to call in Mr. Hone to his assistance, and it was the united opinion of himself, the assistant police magistrate, Mr. Mason, and Mr. Hone, that the case should be dismissed without even calling upon Mr. Fereday for his defence; and this after twelve days proceedings with every witness that Mr. O’Connor could find, he having even examined his last, his own counsel, Mr. Gellibrand. I have stated that some stress is laid upon the term "paid away" used by Mr. Fereday in his affidavit, in respect to the manner in which McShane’s bill had been handed over to Mr. Young. Now in justice to Mr. Fereday, I have to state that the expression originally inserted in the affidavit, was "passed away", and when it came before me to be settled, considering that expression to be a Scotticism, I myself struck it out, and inserted the words "paid away", in its room. I did it, and here I am to answer for my offence. If Mr. Fereday swearing to this was perjury, I am guilty of subornation of perjury, and here I am ready to answer for my offence -

"Adsum qui feci, in me converlite ferrum" Gentlemen, again I say there is not the shadow even of probable cause for this most malicious prosecution, this attempt so hateful - so detestable - so execrable, instituted again and again. I say, without a shadow of interest possessed by the accuser; passed by for months, dead, and forgotten, until ripped up in this most unheard of manner! To this hour Mr. O’Connor’s revenge is unsatiated. This very day he has again dared by his pleas to repeat his original charge, failing as he has done at the Police-office. With this principal witness dead, he had dared again to repeat his charge, again to fail as I am satisfied he must do in supporting it, and I trust you will punish him! Why does he harass - torture the unhappy man whose utter ruin he thus seeks! Why like the savage Indian place him at a stake, to inflict upon him the severest tortures, severer than the savage Indian inflicts, for he gives a final blow and strikes his victim dead! Mr. O’Connor’s hatred and vindictiveness seems interminable. Good God! Can any thing more horrible than this be imagined - can any punishment for such be adequate to the injury sustained? When I ask you for pecuniary damages, do you suppose any such can compensate Mr. Fereday for such treatment as he has been exposed to! Why do I ask such ? Because it is the only method of your shewing your sense of his atrocity! of shewing him, that he shall not torture human feeling in the manner he has done by a detestable prosecution, instituted in so unheard of a manner, and by his vindictive perseverance in seeking Mr. Fereday’s ruin! I wish he was here to hear me, that he might feel as he must do. It would be something like retribution. All then I can do, is to ask from you to prevent by your verdict, the peace and comfort of the community from being disturbed by such malicious proceedings as these - to protect others from being subjected to such base and cruel attacks.

[We set out with stating that we could only give an outline of the Solicitor-General’s very able address, of near four hours continuance. It is impossible to do justice to the energy and effect with which he delivered it.]

The Chief Justice. - I should be obliged to you Mr. Solicitor-General, to state as shortly as possible, the different assignments of perjury made at the Police-office.

The Solicitor-General. - I have here, Sir, an office copy made of the whole proceedings, which I shall put in, in order that your Honor may have every thing which took place fully before you.

The Clerk of the Court then read the whole proceedings in the case brought before the Supreme Court in May last, upon the rule applied for by Mr. Gellibrand, to compel Mr. Fereday and others to pay over certain monies claimed by Mr. Hugh McShane.

Mr. Mulgrave. - I have received a subpoena, duces tecum; I have here the papers to which it refers; I here produce them; I know the parties in this case; the defendant appeared before me at the Police-office on the 19th May, to lay a charge of perjury against Mr. Fereday; I believe, Mr. Boyd, the chief clerk, Mr. Mason, the Assistant Police Magistrate, and Mr. Gellibrand, were present. I understood a day or two afterwards, that Mr. Boyd had made a note of what was said; I cannot recollect the exact words Mr. O’Connor had made use of; they were to the effect that he believed Mr. Fereday had committed perjury, and that if certain witnesses were examined, they could prove it. I understood Mr. O’Connor to say that he did so not only for the purpose of justice - not only to prove the perjury, but also to shew something deteriorating Mr. Fereday;’s character, as he had brought an action for damages against him; I understood him to say that if he could prove Mr. Fereday had been guilty of perjury, it would lessen the damages which Mr. Fereday could obtain against him. I saw the memorandum made by Mr. Boyd, but I did not take much notice of it; I mention this to correct a report which has reached me, that the memorandum was made by my order; it was not so made, nor did I know it was in existence till a day or two afterwards; this writing (the information) was taken before the foregoing observation was made by Mr. O'Connor; it is on oath, founding the charge. The first witness examined was Hugh McShane; I have his evidence. [Mr. Mulgrave then gave it in, as also the examinations of Mr. Adey, Mr. Young, Mr. Collins, Bernard Carron, Mr. Hays, Mr. Crouch, Mr. Patsons, Mr. Sorell, Mr McShane, Mr. Smith, a second of Mr. Hayes, Mr. Roberts, Mr. Butler, Mr. Risely, Mr. Bilton, Mr. Gellibrand, further information of Mr. O’Connor, also certain other letters and papers.] I cannot say whether these persons were summoned by my orders, or at Mr. O’Connor’s instance; I considered it as a preliminary enquiry; I considered from the tenor of Mr. O’Connor’s information, that the proceedings adopted were the preliminaries of an enquiry to see if a prosecution was necessary; Mr. O’Connor was the person who appeared generally as prosecutor, but on one occasion I examined a witness (Mr. Roberts) myself; I believe rather against the inclination of Mr. O’Connor’s counsel, I considered his evidence necessary; I do not recollect what passed at the close of these proceedings; I was very unwell during the whole of them, and knowing that I was to go through all the papers again, I did not pay much attention to them; I did not consider the proceedings terminated until the papers had undergone revision by another Magistrate, Mr. Hone, who had offered his services, and which had been accepted; Mr. Gellibrand assented to this. I believe every witness was examined that Mr. O’Connor or his agents wished; I gave Mr. Fereday notice of the proceedings on the 19th May; I told him that Mr. O’Connor had laid an information for perjury, and had requested that witnesses might be examined. I do not recollect what Mr. O’Connor said when he made his second charge on the 28th May, Mr. Gellibrand and himself went out of the room together; he said he wished to make an additional assignment of perjury, which was made, when Mr. Gellibrand and Mr. O’Connor returned. To the best of my recollection, the additional assignment was not made until after Mr. Bilton’s examination; I think so. Mr. Ross was present taking notes in short hand during the whole proceedings, noting every circumstance.

[Mr. Stephen here read a letter from Mr. Jennings to Mr. Mulgrave, put in by the latter, stating that it was not Mr. O’Connor’s desire to call upon the Magistrates for an adjudication, but that they should be sent to the Attorney-General.] I certainly understood from Mr. Gellibrand that the Magistrates had no right to adjudicate upon the examinations; the paper produced was agreed to by all parties on the 2d June; Mr. O’Connor was not present, I believe; he seldom attended - his counsel conducted the case; [the memorandum was to the effect that the Magistrates were to decide the case.] I do not recollect any application being made during the examination that the Magistrates should not adjudicate. I communicated the decision of Mr. Hone, Mr. Mason, and myself to Mr. Young; I cannot say on what day - I made no note of the dates. Our decision was that there was no occasion to take farther proceedings upon the evidence which had been adduced; we saw no necessity to proceed farther in the case. We did not consider it necessary to put Mr. Fereday upon his defence to the charge exhibited by Mr. O’Connor. In my mind, there is a wide difference between charge and prosecution; my time has been occupied for a length of time upon charges which I found were not so supported by evidence as to justify any Magistrate to act upon. I consider I have power under one of Mr. Peel’s Acts, to decide upon any charge, whether I shall entertain it or not; I consider that the prosecution commences only when the accused is put upon his defence. Perhaps I am not lawyer enough to decide whether there is a difference between preliminary enquiry and prosecution; I consider the case was dismissed for that time, but I consider that if any farther evidence is produced, the accused may be again put upon his defence. I know of no fresh charge against Mr. Fereday, made before myself or any other Magistrate. I did not think it necessary to transmit the papers to the Attorney-General, in consequence of the decision which Mr. Mason, Mr. Hone, and myself, had come to.

Cross-examined by Mr. Gellibrand. - No application was ever made to me to issue any summons or process against Mr. Fereday; Mr. O’Connor’s counsel objected to Mr. Fereday’s counsel being present; it was waived at the request of the Magistrates. All the witnesses except Hugh McShane were cross-examined by Mr. Fereday’s counsel, Mr. Stephen. I offered to him to have McShane in for cross-examination if he wished it; he declined it. Mr. Jennings examined the last witness. I received a letter from Mr. Jennings on the 10th, requesting me to transmit all the papers to the Attorney-General, as Grand Jury; I replied to it to the effect that I saw no necessity for farther proceedings; I have no doubt that Mr. Gellibrand applied to have the proceedings forwarded to the Attorney-General, but I have no recollection if he so applied to me. I know of no means that any person has of compelling the attendance of reluctant witnesses upon any prosecution, but by laying an information before a Magistrate. Mr. Young suggested the calling in of Mr. Hone; I thin the Solicitor-General spoke to Mr. Hone in an adjoining room.

Mr. Hone. - I am a Barrister and Master of the Court; I was consulted by Mr. Mulgrave and Mr. Mason, upon some charge instituted by Mr. O’Connor against Mr. Fereday, for perjury; it is 4 or 5 months ago, I recollect your speaking to me, as also Mr. Mulgrave, in reference to the case; I do not recollect when. I went into the case with Mr. Mulgrave and Mr. Mason; I think I read the whole of the examinations. I had no previous acquaintance with the merits of the case; our decision was unanimous; it was to the effect that the prosecutor had not then made out such a case as would render it necessary for the Justices to call upon the party charged for a defence; the case was dismissed; I considered it the commencement of a prosecution; I think it was before - nay, I now think it was after our decision. You are aware that I was not presiding at the Police-office, and therefore, I have no means of bringing dates to my memory. Allow me to state, I now cannot say even to belief whether it was before or after the decision that I saw the letter.

Cross-examined. - I cannot say when it was shown to me; I considered there was a prosecutor, and a party prosecuted, and I considered the prosecutor did not wish the decision of the Magistrates to be known, but that the case should go without such a decision, to the Attorney-General. Neither the prosecutor nor any person in the slightest degree connected with him ever spoke to me on the subject; I know of no means that any prosecutor has of getting evidence upon any charge before the Grand Jury, but by laying an information at the Police-office; and if the Magistrates refuse to do so, there is no remedy but by a mandamus; nor can that be applied for but in full Court in Term Time. There has been no term since the case was instituted but the present one; I should suppose paying away a bill of exchange to be handing it over with an endorsement; I consider that if a party hands over a bill of exchange, without endorsing it, and makes himself liable for its amount to another party, for the express purpose of suing upon it, that such is a paying away. [Mr. Hone was here examined for a considerable time as to his opinion upon of what amounted to the paying away of a bill of exchange. Mr. Hone was however conclusively of opinion that, if an I.O.U was given for a bill, and the giver became thereby liable for the amount, such was a paying away.] I think the paying away a bill of exchange, without an endorsement, is strong presumptive evidence of its being no payment but that if an I.O.U. was given, it would rebut the presumption.

J. Burnett, Esq. - I am Colonial Secretary; I have, generally speaking, the custody of all official papers of the Lieutenant Governor. I have a subpoena, duces tecum, to produce a memorial said to have been addressed by Mr. O’Connor to the Lieutenant Governor, but I have it not in my possession; I believe it is with His Excellency the Lieutenant Governor. I have received an application on the part of Mr. Fereday, that His Excellency would produce that letter; it has been laid before the Lieutenant Governor, but His Excellency has not furnished me with the memorial.

Cross-examined. – I think McShane sent the memorial to His Excellency the Lietuenant Governor in respect to this affair with the sheriff; I have a recollection that the answer was that if any complaint existed, the complaint must go to the Supreme Court.

Captain Montagu. - I am Clerk of the Council; I have received a subpoena duces tecum to produce a memorial from Mr. Fereday to Mr. O’Connor; it is with the Lieutenant Governor; I have it not to produce.

[Here the examinations at the Police-office, put in by Mr. Mulgrave, were read. It is impossible to give even an abridgement of them. The reading of them occupied the Clerk of the Court four hours and ten minutes. The principal points will be found in the charge of His Honor the Chief Justice to the Assessors.]

Mr. Parramore. - I am Private Secretary; I have received a subpoena duces tecum requiring me to produce a memorial from Mr. O’Connor to His Excellency the Lieutenant Governor; I have it not; it is in the possession of His Excellency.

Mr. Ross. - I was employed by Mr. Fereday as short hand writer upon the late police investigation; I was not present at Mr. O’Connor’s first examination, nor at Mr. Hugh McShane’s. After Mr. Gellibrand’s examination had closed, Mr. Stephen, who acted as Counsel for the defendant, asked the prosecutor’s Attorney, Mr. Jennings, if he had any more witnesses; Mr. Jennings replied he had not. Mr. Stephen said, "I put it to the justice of the prosecutor, whether he will not now consent to the case being dismissed;" Mr. Jennings made no reply; Mr. Mulgrave then said, "I have mentioned to you all, the course I mean to adopt; it being a new case, and instituted by a private prosecutor, I must have called for private professional assistance, or that of Mr. Hone, who is also a Barrister, and I shall consult him now" I think something was said by Mr. O’Connor’s agents at that time and at another time, about the Magistrates not adjudicating; I think Mr. Gellibrand expressed a wish that the papers should be sent forthwith to the Attorney-General. I never saw this memorandum before - [the memorandum before referred to by Mr. Stephen as to the Magistrates adjudicating.] I have seen this before. [Mr. Jenning’s letter to Mr. Mulgrave of the 6th of June, calling upon him to send the papers to the Attorney-Genera.] After Mr. Bilton’s examination was closed, Mr. Mulgrave said, I am now ready to receive any further evidence which may be tendered on the part of the prosecution; Mr. Jennings said it is six o’clock; Mr. Mulgrave said, I am ready to go on so long as there is any evidence. Mr. Gellibrand was then called; after Mr. Crouch’s examination was closed, Mr. Mulgrave asked will there be any examination tomorrow; Mr. Gellibrand said Mr. Riseley, but Mr. Jennings will state what witnesses he wants; I really cannot say who they are. Mr. Gellibrand left the office, and Mr. Jennings arrived soon after; Mr. Mulgrave then repeated his question; Mr. Jennings replied Mr. Riseley, and Mr. Gellibrand. On Saturday, the 28th of May, the proceedings began with the examination of Mr. Hays, Mr. Gellibrand said Mr. O’Connor wished to add another assignment; Mr. Mulgrave asked Mr. O’Connor had he any further information to give; do you wish any further information or not; Mr. Gellibrand said "he wishes to make another assignment of perjury against Mr. Fereday, contained in the affidavit before referred to, in the following words," and then the assignment was made. I remember Mr. Stephen cross-examining Mr. O’Connor as to the grounds upon which he made this fresh assignment; I have a note as to a fact as follows - Mr. O’Connor had never been out of the room with Mr. Gellibrand after the examination of Mr. Bilton; at an earlier time of the day Mr. O’Connor said something of another assignment he was about to make, and Mr. Gellibrand and himself then withdrew into another room, at the suggestion of Mr. Mulgrave.

Cross-examined. - I have had some experience in bills of exchange; I understand by the words paid away that a party has transferred his right in it to some other party for a consideration; if a bill of exchange was handed over by the holder to another party merely to sue on, and on I.O.U. given as the consideration, I should not consider it paid away; if a bill of exchange was delivered by a client to an attorney for the sole purpose of suing, I should certainly not consider that a paying away.

Re-examined by the Solicitor-General - If the I.O.U. was given, whereby I had the use of the bill as I chose, then I should consider it a paying away; I should consider it a paying away; I should hardly conceive any client would take my I.O.U. without allowing me to negotiate the bill, for I might be called upon to retire my obligation.

The Chief Justice. - We are quite in the dark as to the nature of the I.O.U., whether it was for a specific sum, or for the consideration of a bill, or for what.

Mr. Mason. - I am Assistant Police Magistrate; I was so when Mr. O’Connor’s informations were laid against Mr. Fereday; the decision of the Magistrates was that there was no ground for the charge, and that the complaint must be dismissed; I know of no farther proceedings having been taken in that affair.

Cross-examined. - I know that Mr. O’Connor called upon the Magistrates to send the papers to the Attorney-General; I rather think before they came to their decision; I certainly did not know of any protest of Mr. O’Connor’s against their adjudication; I rather think I was present when the proceedings closed; I recollect Mr. Gellibrand asking to have the papers sent to the Attorney-General; that was previous to our decision, but on what day I do not recollect; I think it was after all the examinations had been taken.

Ambrose Boyd. - I am Chief Clerk at the Police Office; this memorandum was made the afternoon of the day on which the fact it relates to took place; the memorandum was to the effect that Mr. O’Connor was cautioned by the Chief Police Magistrate as to the danger of making such a charge against Mr. Fereday, and upon asking him his motives he said, that he had had an action brought against him by Mr. Fereday, and his object was to reduce the damages; Mr. Mulgrave then said, he might have an action brought against him by Mr. Fereday, to which he replied, that he should then have two; he added, that he was also actuated by a sense of public duty McShane.

Cross-examined. - I remember, Mr. Gellibrand applying to have the papers transmitted to the Attorney-General, oftener than once; I have a recollection of having seen a letter (produced) from Mr. Jennings to Mr. Mulgrave, requiring him to transmit the papers to the Attorney-General; the impression upon my mind is, that almost upon the commencement of the case, the wish was expressed that the papers should be sent to the Attorney-General, and should not be determined at the Police-office; I have a faint recollection of something of the kind, that Mr. Mulgrave complained that he could not have the assistance of the Solicitor-General, he being concerned in the case for the defendant, and that Mr. Gellbrand objected to his consulting the Attorney-General, as he wished the papers to be transmitted to him as Grand Jury; I made the memorandum I have produced the day the words were spoken, and I have since shew it to the Chief Police Magistrate, to Mr. Fereday, and to Mr. Rowlands; but I did not shew it to Mr. Mason until to-day, nor have I shew it to Mr. Hone at all; I put it in my bed-room among some other papers.

Re-examined. - About three weeks ago Mr. Rowlands and Mr. Fereday called upon me together, and I shewed them the memorandum; I have mentioned it publicly in the Police-office; IO shewed it to the chief Police Magistrate three or four days after I made it.

Mr. Mulgrave re-called. - The impression upon my mind is, that the memorandum produced is a fair statement; I think the paper I have heard Mr. Boyd read, is the same I saw.

It being now eleven o’clock, the Court adjourned until ten o’clock the following day.

Wednesday, December 14

Mr. Cartwright, - I was Solicitor for Mr. Fereday in an action lately brought against Mr. O’Connor for libel; I think the summons issued on the 7th May; I received my instructions about a fortnight before; [summons put in] it was for libel upon a supposed memorial to the Lieut.-Governor sent in by Mr. O’Connor, complaining of Mr. Fereday’s conduct in his office; I know of no other action pending between the parties.

Cross-examined. - I understand paying away a bill of exchange to mean giving it to a man to whom I owed money; I should certainly not call the delivering over a bill of exchange to a party, taking an I.O.U. for it, a paying away; if I had sued upon such a bill, and had received the principal and interest, and paid it over to the person from whom I received it, I certainly should not consider such a paying away.

Re-examined. - If Mr. Fereday a few days before this bill [produced] became due, he having occasionally employed me, had brought me this bill and asked me if I had any objection to take it, and give my I.O.U. for it, if I did so, taking it as property, I should consider such a paying away to me.

By the Chief Justice. - Should you then Mr. Cartwright consider yourself liable upon your I.O.U., even although you never received one farthing for the bill? - I should; because I should have taken the bill at my own risk. An I.O.U. is almost a daily practice; I have perhaps fifty of them now unpaid. [The Clerk of the Court was here called upon to read the first count of the declaration in the former action. Mr. Gellibrand objected. It was then agreed that it should be admitted that a previous action had been brought by Mr. Fereday for libel upon a supposed memorial.]

Mr. Sorell, - The first action, Fereday v O’Connor, was on the 7th May; I do not know whether the writ Murray v Wells has been returned to me.

Mr. Rowlands. - I recollect the case Murray v Wells I was attorney for Mr. Murray; I recollect the sales at the sheriff’s office on the 28th October, 1828; I was there; the order advertised was Littleton v Risely; Young v McShane and same; Young v Read; the last is Murray v Wells; I sued out the fi. fa. in that cause; it was returned; I issued another writ’ a day or two before the sale a notice was given that the property did not belong to Wells; I was instructed by Mr. Murray that if the property was put up, I should buy Well’s interest; but they were not put up, to the best of my belief; I do not recollect sufficiently of the fact to speak positively, but I believe they were not put up, for if they had, I should have bought them, as I was instructed; I have no doubt upon the subject; [writ put in] I was attorney for Mr. Gavin in a judgment obtained against the executors of Hammond; I issued execution fi. fa.; a sale place; I was present; it was of an acre of ground near the Battery Point; it was sold at the Sheriff’s office; Mr. Hewitt was the purchaser, I think for £430; I recollect the Solicitor-General protested against the sale on the part of Mr. O‘Connor thereupon, and he wished me to give an authority to the sheriff to sell it by private contract to him, without putting it up to auction; I think he was to give £300; I refused; I gave Mr. O’Connor, to get rid of him, a letter to the sheriff, telling him to do as he pleased, but I declined giving any instructions; Mr. O’Connor was very angry, and said he would prosecute the sheriff if he did not sell him the land; I mentioned this to the sheriff; shortly after the sale I met Mr. O’Connor, and he was then very angry with the sheriff; he said if he (Mr. O’Connor) had been any body else, the sheriff would have sold him the land; he said again he would prosecute the sheriff and Mr. Hewitt; in consequence of those threats I retained Mr. Horne on the part of Mr. Hewitt. [The following dates were admitted by Mr. Gellibrand; sale 14th March, 18931, fi. fa. Issued in February] I was present at the sales in 1828, from before they began until some time afterwards; I did not see Mr. Hays in the office; I recollect the sale Young v McShane to Bilton; the sales all went on in the regular way; I stood close to the steps; I recollect no interruption during the sale; before the sale Hays was sitting behind the door, and he asked the sheriff if McShane’s property was to be sold; the sheriff replied to be sure, and seemed surprised at the questions; I saw Hugh McShane about half an hour or less after the sale at the sheriff’s; he seemed quite pleased at the price his property fetched; [The Solicitor General here put a question to Mr. Rowlands as to Hays’s expressed hostility to Mr. Fereday, upon which a long discussion follows as to the propriety of such a course. Mr. Hays not being called to impugn such evidence, the Solicitor-General stated, that if he was not permitted to impugn the character of witnesses, he would undertake to convict any man whatever, be he who he may, of any crime whatever; he instanced a case of an officer in the Sister Colony who was charged with murder, and upon the trial the only evidence he had was the infamous character of the wretches who gave evidence against him, and which he having proved, he was acquitted. The Chief Justice said that such was upon a trial, which was a very different proceeding, and he besides considered it contrary to every principle of justice to attack Mr. Hays’s character in his absence. The question was therefore rejected.]

Cross-examined. - When the sale of Hammond’s property took place, Mr. Solicitor-General attended as the legal representative of Mr. O’Connor; and he threatened proceedings against all parties; Mr. O’Connor was not present; I knew from Mr. Hewitt that he would purchase; he told me that he knew some other persons wanted the property, and he would go to any price rather than they should have it; I cannot tell how many days it was after the sale when I saw Mr. O’Connor, as I have before stated; nobody was present but myself; I made no memorandum of the conversation; whether it was one or fourteen days I cannot say, but, to the best of my recollection, it was very shortly after; I do not know what hour of the day it was when I saw McShane at the Sheriff’s Office, or the day of the sale; I cannot speak accurately to the day on which I retained Mr. Horne for Mr. Hewitt; I think the instructions for the retainer and the conveyance were given about the same time

[Mr. Rowlands underwent a long and severe cross-examination by Mr. Gellibrand, but nothing material was elicited.]

The Chief Justice. - I really cannot see how it is possible for the facts stated relative to the arrangement of the lots to be perjury. Supposing the statement of Mr. Fereday to be untrue, how could it be perjury. Surely this then is a waste of time.

Mr. Gellibrand. - I assure your Honor I have no wish to occupy the time of the Court unnecessarily.

The Chief Justice. - Nor do I wish to stop you in any thing that can be important.

The Solicitor-General. - I appear here to vindicate my client’s character; I will remain here until doomsday before I take a technical objection, although your Honor, and every lawyer knows, that the fact charged to be perjury cannot be such, because it is not material to the issue in any possible consideration; but it is due to my client’s character that I should not make even a shadow of technical objection.

The Chief Justice. - Yes; but there is also something due to the Court, and really I cannot see how this can affect the case. However go on, I will throw no difficulties in the way.

Mr. Gellibrand asked a few more questions of Mr Rowlands to the same effect as the preceding, and then sat down.

Mr. R. L. Murray. - I was the plaintiff in Murray v Wells, to which we have had reference; I have heard Mr. Rowland’s evidence relative to the execution and sale in that case; I recollect the instructions of which Mr. Rowlands spoke; they were exactly to that effect; I know such a sale (Gavin v Hammond) did take place; I had conversations with Mr. O’Connor about the time of that sale, relative to it, both before and after the sale; Mr. O’Connor expressed himself invariably dissatisfied; he considered himself to be very ill treated; I cannot recal his exact words; the substance was that he had purchased the estate of the representatives of the late Mr. Hammond, and that the Solicitor-General had attended the sale to stop it, notwithstanding which the sheriff had sold; Mr. O’Connor expressed himself in terms of anger respecting it; I have heard Mr. O’Connor express himself in terms of hostility against the sheriff, in reference to McShane, or where his conduct as to McShane was canvassed; I cannot recal to my memory the expressions used by him; I have heard him express an opinion as to Mr. Fereday’s conduct in reference to McShane;’ he has expressed himself warmly about it; I cannot recollect his particular expressions; he was present in Court when the motion was made in this Court in Young v McShane, and told me from what took place on that occasion, he thought the sheriff had mistaken the matter; that the sheriff was wrong in his statements; he expressed himself very strong on the occasion, but I cannot recollect any sentence in which he stated that Mr. Fereday was perjured; he believed, from what he had heard, the statements of Mr. Fereday were untrue; that was his impression; I really cannot speak to the exact words; he believed that Mr. Fereday’s statements were not true, from what he had heard in and out of Court; I cannot state any sentence or part of a sentence in which he used the term perjured; I had many conversations with him pending the prosecution, but not so many as since; prior to the efforts for an amicable adjustment of the matter, I have heard Mr. O’Connor so express himself, as well as during those efforts; I cannot say I considered myself as the agent of Mr. O’Connor, frequently during those efforts I have heard him express himself in this way.

Cross-examined. - Mr. O’Connor certainly has made use of the word "perjury" as expressive of his opinion, and that only; I was in Court when judgment was given in Young v McShane; I took notes of the whole judgment, and reported it in my newspaper; I have a part of my notes here which I have transcribed and brought; the notes in my hand contain that part of your Honor’s judgment which relates to Mr. Young’s receipt of the bill from Mr. Fereday, and they were copied from the original immediately after they were made - constructed from the original I should say, not copied; this contains what, coupled with my notes, fell from the Court. [Here a long discussion took place as to whether the portion of the notes could be read, but the examination continued.] The printed report is a very compressed report of the judgment; this is a full report of the part which related to Mr. Young. [Here again the discussion was renewed as to the production of the notes, but upon the Chief Justice stating that he should charge the Assessors to a particular effect, the production was not pressed.] I have heard all that has fallen from the lawyers as to paying away the bill, and I begin to think I do not understand it at all. [A case was here put by Mr. Gellibrand.] I should not call that a paying away. [Mr. Gellibrand then put Mr. Fereday’s case.] If I was liable to pay my I.O.U. I should consider it a paying away; If I gave any security, I should consider it a paying away, if not, I should not; it would certainly not be payment if I paid the money back again.

Re-examined. - I think [shewn Fereday’s bill and the exact case stated] he might with propriety call that paid away.

Mr. Hewitt. - I purchased an allotment at the Battery Point, at the sheriff’s sale; I gave £430 for it; I had some conversation with Mr. O’Connor sometime after the sale, six weeks or two months, on the subject, the general tenor of which was that he considered the sheriff had not behaved well to him in selling the land’ he was very angry indeed with the sheriff, but he said he considered he had bought it; I do not recollect that he used any expressions of hostility against the sheriff; an I.O.U. is an acknowledgment of a debt; it is very common in London; I have not seen much of it here; I am managing director of the Old Bank; I have seen instances of I.O.U’s instead of checks as acknowledgement of debt in case of death; I should decidedly consider a bill paid away to me if it was handed over to me merely to sue upon, although even no money passed; even if not endorsed by the person.

Cross-examined. - The Security I should have for so doing in the event of the bill not being paid would depend entirely upon the understanding at the time.

Mr. Crouch. - I am Sheriff’s Clerk; I have been so nearly seven years. [Hobart Town Gazette produced.] I had advertised for sale herein Littleton v Riseley, Young v McShane, Murray v Wells; there is the name Bilton written thereon, in Mr. Hay’s hand writing; the entries on the 25h October are Littleton v. Riseley, 6 lots, and Young v McShane; there is no entry of Murray v Wells. [The witness underwent a long examination as to the books of the sheriff’s office, which it is impossible to describe, and seems to have been of no material consequence.] I saw McShane soon after the sale; I cannot say the precise time, only it was before three o’clock; he asked for the proceeds of the balance of the sale; he made no complaint or remonstrance to the best of my recollection.

Cross-examined. - On the morning of the sale I recollect Mr. Roberts and McShane coming to the office, it was between ten and twelve; it was before the sale; I made an affidavit in the case before the Court; if I then swore it was a short time before the sale, it was so; perhaps half an hour; I will swear they were there within an hour of the sale; it is three years ago, and I really cannot state particulars; it is impossible for any man to remember such so long; I cannot recollect that any conversation took place between them at the sheriff’s office; they went into the parlour; the sheriff came out in a short time and told me to draw a bill for - I forget what sum; I think it was for three months; it may have been £100 at two months; I really do not recollect the date or amount; I think I saw the bill at the police office, some six months ago. [Mr. Gellibrand here called for the sheriff’s bill book. Mr. Stephen refused, upon the ground that this was not the proper time, he would produce it when Mr. Gellibrand came to the defence.] I drew a bill; I do not recollect the date or the amount; I took it into the parlour to Mr. Fereday, and what became of it I do not know; Roberts and McShane came out in a few minutes, and went away; I will not swear that it was not signed in the office; I will not swear that Hays was not in the office when it was drawn; Carron and Collins were present; I do not recollect any body else; I do not recollect seeing Mr. Rowlands there before the sale; I do not know whether I ever stated at the police office that McShane had been at the sheriff’s office before Mr. Roberts, but I now think he was; it does not appear, from the sheriff’s office books that any part of the money for which McShane’s property was sold was paid to any body, except £4 16s balance over the levy to McShane.

The Solicitor-General. - Mr. Gellibrand called for the Sheriff’s bill book; I now produce it. Mr. Gellibrand has called for it, and it is now evidence for me; I have only to say that McShane’s bill is entered in it but Roberts’s is not, which it would have been had it ever been his property.

Mr. Gellibrand looked over the bill book, and then said, I am very glad it is produced.

Mr. Young. - I am a Solicitor; I attended at Mr. Stephen’s office in May last, to settle the affidavits upon the motion in McShane’s case. I attended one night late at Mr. Stephen’s office, the night before shewing cause, Mr. Fereday’s and my own affidavit, also Mr. Crouch’s were laid before Mr. Stephen to be settled; the others were settled I think in the forenoon of that day’ there were present, Mr. Stephen, Mr. Pitcairn, Mr. Fereday, and myself. [The draft affidavits produced.] In the original affidavit of Mr. Fereday, the following words were originally inserted, the bill was "passed" to the plaintiff. Upon the above consultation, the word "passed" was altered to "paid away." I do not know by whom the alteration was made, as I had left before it was done; it was sent to me at one o’clock in the morning, and I had it copied for the motion The alterations for "passed" to "paid away" are, I think, in Mr. Pitcairn’s hand writing; I believe them to be so.

Cross-examined. - This bill (McShane) is in my hand writing; I drew it out by the request of McShane. I had received instructions from Mr. Fereday to make known to McShane that Mr. Fereday at the request of another person, was disposed to accommodate him with the loan of £150, provided he could get another person to join him in a bill. I have since learnt from Mr. Fereday that the person at whose instance he accommodated McShane, was his bailiff, Barnard Carron. I prepared a warrant of attorney from McShane to Mr. Fereday, to secure payment of the bill; I delivered it when executed to Mr. Fereday; Mr. Fereday deducted from the £150 bill, £18 15s. discount, and the whole which I received was two guineas for the warrant of attorney. Mr. Fereday had also deposited with him, as farther security, some title deeds of landed property. Mr. Fereday had the bill - the warrant of attorney - and the title deeds of an estate at Glenarchy, as security. Mr. Thomas Wright was the drawer of the bill; before it became due he left the Colony; McShane gave Wright a warrant of attorney also, to secure him from loss. A short time before the bill became due, I received it from Mr. Fereday; I think it had ten days to run. Mr. Fereday did not endorse the bill to me’ I did not borrow it from him - he asked me to take it; I gave him no money for it; I gave him my obligation for the amount - it is destroyed; it was destroyed at the time I paid it; it was an I.O.U. for £150, addressed to Mr. Fereday. I did not receive from Mr. Fereday the security he held to secure payment of it; Mr. Fereday asked me to take the bill, and to give him my obligation for the amount; I consented to do so, gave him that just mentioned, stipulating at the time, that if I did not recover the money from the parties to the bill, Mr. Fereday should stand to me in the same relation as an endorser, with notice; that stipulation was not in writing; no one was privy to it. Mr. Fereday had full power to issue execution, and sell the property of which he held the title deeds the moment the bill was dishonored. I was to recover the money from the parties to the bill, McShane or Wright. When I took the bill, I fully expected that Wright’s agent, Mr. Kerr, would have paid the bill, and then I was in a situation to do what Wright required of me to recover the amount of the bill by means of the warrant of attorney which he had from McShane. These were my instructions from Wright; I think I got Mr. Fereday to present this bill for payment; I have an indistinct recollection that I did so in this instance, as I did on many others. The bill was dishonoured; had it been paid, I would certainly have relived myself from the obligation I gave Mr. Fereday, by paying the money over to him. I considered Mr. Fereday in the situation to me of an indorser; I know that the endorser of a bill is discharged if he has not notice; I have my letter-book here; I gave notice of its dishonor on the 29th July, 1830, to Mr. John Kerr; I did not write to the Sheriff to give him such notice; I did not sue Mr. Wright - I sued McShane, in my own name. When I took the note from Mr. Fereday, the condition was as I have already stated, that he should be liable to relieve me from my obligation, if I failed to recover the amount from the parties to the bill. I did not return the bill to Mr Fereday, and reclaim my I.O.U, because the condition was, that Mr. Fereday was to relieve me from it, if I did not recover the amount from the parties to the bill. There was an understood condition that I was to sue for the amount of the bill, either myself or by some other individual other than Mr. Fereday; if I had used the proper means to recover it, and failed to recover all, Mr. Fereday was to relieve me from the difference. I issued an execution; it was satisfied by sale of the very property, the title deeds of which were lodged with the Sheriff as before stated. Had McShane’s property not realized enough to pay the amount, I should have undoubtedly looked to him for the difference. Had Mr. Fereday been in the ordinary situation of an endorser, he would not have been liable to me for the costs incurred by this proceeding. On the 6th November, I signed a receipt in the Sheriff’s office for the levy; before I left the house I received my I.O.U. I went from the office to the parlour, and there got it; the lapse of time was not more than half an hour perhaps. I received no benefit, interest, or advantage whatever from that bill beyond the mere amount of my costs. Mr. Fereday received the amount of interest accruing between the time of the bill being dishonored and the execution, amounting to £1 5s. My I.O.U. did not carry interest; I paid to Mr. Fereday the whole sum levied, £151 5s. I did not enter the transaction in any way in my book, excepting the entry of the costs of the action; it never formed an item in any account current between me and the Sheriff. I have heard Mr. Fereday speak of Roberts’s bill; the first time I ever heard of it was when a memorial was sent in by McShane against the Sheriff, on the 17th June, 1829. I never saw the bill, but I have heard the particulars of it since from him; I understood that it was drawn and endorsed, and from the way in which I have heard it since mentioned by the Sheriff, I have no doubt it was; I have heard from him that he has since received a part of it as the depository; the holder under conditions.

Re-examined. - I have called the I.O.U. an obligation; I was undoubtedly liable to pay the amount of the I.O.U.; I certainly so considered it myself; I do not consider that I should have done wrong had I made use of the bill myself, but then I should have lost my recourse against Mr. Fereday, so also, had I lost or neglected to give notice, or any otherwise neglected the best means of recovering it; Mr. Fereday’s obligation was upon honor; I undoubtedly considered I had acquired a property in the bill; an I.O.U. is an every day mode of doing business; I gave it of my own free will; had Mr. Fereday died I felt very fidgetty about it.

Mr. O’Ferral. - I know Mr. O’Connor; I have spoken with him repeatedly about Mr. Fereday’s business; I had only that conversation on the subject which would take place between two gentlemen; I am not aware that I never heard Mr. O’Connor speak as to a particular affidavit in McShane’s business; I cannot say that I have heard Mr. O'Connor express himself in terms of hostility to Mr. Fereday; I have not heard him speak of Mr. Fereday’s conduct as to McShane.

Mr. Gavin. - I know the parties; Mr. O’Connor had some conversation with me on three different days in May; the last was on the 26th; I think all within a week; I do not know whether the Police-office business was going on; Mr. O’Connor came to my place between 10 and 11 o’clock in the evening; the business which brought him there was to know if I could not be of any assistance to him in the business between him and the sheriff; I told him I knew nothing about his business; he called to know whether Mr. Fereday did not have the bills accepted by Mr. J. Lord, of Mr. Hammond’s from me; I told him he had no bills of the kind from me; it was Mr. O’Ferral that had them; he asked me if I had not a judgment upon some land at Cottage Green, which had been sold to Mr. Hammond, and whether the land was not sold to pay the debt due to me from Hammond; I said I understood it was; he asked me if I was paid the debt due to me; I said £51 9s. 1d. was due to me; Mr. O’Connor told me the debt due to me was £238, and the land sold for £430; he told me that I must be cheated out of that money, or that the layer must have pocketed it to pay his own expenses; Mr. O’Connor told me if I would assist him in his affair with the sheriff, he would assist me to get my money; I told him I could not assist him; he said it was their intention to ruin him if they possibly could.

Mr. Hugh Percy Forster. - I am Paymaster of the 63d Regt.; I have known Mr. Fereday ever since I have been in the Colony; I have been very well acquainted with him; I knew of the prosecution for perjury which was going on at the Police-office; I saw Mr. Fereday nearly every day at that time, about 12 days, until the case was dismissed; Mr. Fereday suffered very much indeed at such a charge being preferred against him; I consider principally in mind; if it had continued he would have suffered very much in bodily health; I know he was extremely affected.

Mr. Gregson. - I know the parties; I have known Mr. Fereday seven or eight years, I knew of certain proceedings at the Police-office for wilful and corrupt perjury; they lasted many days; I saw Mr. Fereday very often during those days; I never witnessed greater distress of mind in any person in my life; I am quite satisfied also in health, and had the proceedings been protracted for a few weeks, he must have sunk under them; those proceedings were generally spoken of in Hobart Town; I met no person but who spoke of it.

Cross-examined. - I attended almost every day near the Police-office during the investigation, myself and Mr. Conolly, and every now and then the sheriff coming from the office and talking to us about it.

Mr. Grant. - I am not aware of the extent of Mr. O’Connor’s property, Mr. O’Connor said to me cursorily, that he had from 6 to 7000 acres of land, and I understood him that he had from 4 to 5000 sheep; Mr. O’Connor has expressed himself in terms of great dissatisfaction with Mr. Fereday, and I think with great reason. [Mr. Gellibrand here objected, that as Mr. Grant can hear nothing, and all which Mr. O’Connor communicated must have been in writing, that such communications might have been libel, and the papers of course should be produced. The Solicitor-General admitted the objection, and Mr. Grant withdrew.]

Mr. Frankland. - I am Surveyor-General; I know Mr. O’Connor, he is Inspector of Roads; I know hoe much land he has received from the Crown; 5,200 acres since 1825, and also 200 acres in payment for a waggon; he has purchased from the Crown estimated at 1,200 acres, but nearly 3,000 on being surveyed; this has not been confirmed.

Cross-examined. - I presume that the land purchased from the Crown is not paid for, except the moity, and I have no doubt it is not paid for.

Rev. Mr. Conolly. - I am the Roman Catholic Clergyman; I know the parties; I saw Mr. Fereday frequently during the progress of proceedings at the Police-office; they were matter of notoriety and surprize; they evidently gave him great concern; it was marked in his countenance; Mr. O’Connor told me himself once, that he had 15,000 acres of land, and public report says he has 15,000 more; he gave me to understand that the profits of his sheep on that land would give him £1,000 a year; I knew Hugh McShane, he was a catholic; I knew his character; I ought to know it.

[The Solicitor-General here put the following question to Mr. Conolly; - Would you have believed him on his oath? Mr. Gellibrand objected, that the man being dead, not having been examined before the Court, not having any depositions before the Court but which were taken at the Police-office, that was the place, and then was the time to impeach him, and not now, when he was no longer here to support himself; it would be most unjust to have his memory reviled by evidence after his death, which he had not the power to rebut. The Solicitor-General replied, that he had no case to produce in support of his question, but he urged its propriety upon every principle of common sense; and again repeated his argument of the case with which any person could be convicted of any crime, by evidence always ready to obtain here; and unless he could shew the real character of the wretches who accused him, he had no means of defence; he again referred to the case in the Sister Colony, and supposed others which might occur, of accusation made, and supported by half a dozen witnesses, every fact sworn to by whom, it might be impossible to contradict; the only course then would be, to shew by double the number of witnesses, that the testimony of the accusers was too infamous to be credited. And is there then to be no remedy against the prosecutor who grounds his accusation upon evidence such as this, asked the Solicitor-General. He argued in support of this position at considerable length, force, and ingenuity.]

Chief Justice. - The pleas to your declaration are to the effect, that certain persons went to the Police-office, and swore to such and such points. You say they were not credible witnesses. I should like to hear the pleas read.

Mr. Gellibrand again urged that the cases cited by, and supposed by the Solicitor-General were not applicable to the present. He replied to the Solicitor-General, very ably supporting his objection with great effect.

The Chief Justice was of opinion that the evidence proposed, could not be received. His Honor went at much length into the nature and effect of it. His Honor observed, that 4even although it was shewn that the witnesses were the monsters described, non constat, that Mr. O’Connor did not know such to be the case. If the testimony was to be admitted, the Solicitor-General must go a step farther, and connect Mr. O’Connor with it. But such was here not even suggested; and His Honor therefore considering that it would be a very dangerous precedent, for that thereby the character of the most upright man in the island might be impeached, he decided upon rejecting the proposed evidence.

The Solicitor-General then stated that he had closed the case for the plaintiff.

Mr. Gellibrand stated to the Chief Justice that he was now utterly exhausted. He had been for two successive days unassisted, occupied incessantly in this case, and he had not physical strength to proceed farther. It was now near 8 o’clock, and he thought it was not too much to solicit of His Honor to grant him the favor of adjourning to the following day.

The Solicitor-General acquiesced in this application in the handsomest manner. He said his client’s case was of a nature which induced him to give the very utmost latitude to every thing which could be urged on the other side. But he added that in doing this, he considered it but fair to require to know whether it was, as he had heard, the intention of Mr. Gellibrand to take any legal objections to further proceedings in the case; because, if so, while Mr. Gellbrand would, by the adjournment, have the whole night to prepare his argument and fortify himself with authorities, he (Mr. Stephen) would be required to reply at the moment, without any time for preparation.

Mr. Gellibrand acceded to the Solicitor-General’s request, stating that the points he should submit to the Crown were two - First, that as there was no evidence to go to the Jury upon the counts, for slander, (the libel count had been already abandoned) the plaintiff must be nonsuited. Secondly - That there is no evidence that the prosecution is yet ended and determined, neither that there was not probable cause for its being instituted. Mr. Gellibrand added that of course he should not be precluded from having any other legal points reserved which he might find necessary to his case.

Adjourned till to-morrow.

CONTINUED

Notes

[1] See also Colonial Times, 14 and 21 December 1831. After this case, Governor Arthur instructed Fereday to cease his money-lending activities, see Anon., 'Dudley Fereday (1789?-1849)', Australian Dictionary of Biography, vol. 2, p. 372. See also Hobart Town Courier, 17 December 1831, noting that at four days this was one of the longest trials on record in the Van Diemen's Land Supreme Court, the longest being Lord v. Rowcroft in 1825, which lasted a fortnight.

For further litigation between the parties, see Tasmanian, 7 April 1832.