[trespass to land - jury trial - Sheriff, discipline of - search without warrant - convict escape, harbouring - trespass and case, distinction between - civil procedure, formalities of documents - law reporting]

Tuckwell v. Scott, Turnbull and Rhind

Supreme Court of Van Diemen's Land

Pedder C.J., 9 May 1832

Source: Tasmanian, 12 May 1832[1]

This day the Court sat for the trial of causes. There were two for which Juries were summoned, Tuchwell v Scott and others, and Molloy v Sorell, (Administrator of Intestate Estates.) Upon the return of the venire facias by the Sheriff, it appeared that a considerable difference existed between the Jury Roll, as such was made out in compliance with the Act of Council, and the Jurors summoned, the Sheriff having omitted all Public Officers, Magistrates, and several other persons. The Counsel on both sides complained of this, and upon the fact being made apparent to the Chief Justice. His Honor ordered the return to be set aside, a venire de novo to issue as to Molloy v Sorell, for the 19th instant, and for the irregularity of the Sheriff, His Honor ordered that Officer to pay a fine of One Hundred Pounds to the King. In the case of Tuckwell v Scott, the Counsel on both sides agreed to by Assessors, rather than let the cause go off, and Messrs. Bell and Beamont were sworn accordingly.

Mr. Gellibrand stated the case for the plaintiff, in a long and impressive speech, of which the following is an outline. Dr. Scott had a female servant, named Janet Anderson; she eloped, and Dr. Scott sent Rhind, the constable, in search of her. This man having seen her on Wellington Bridge, instead of taking her into custody as I apprehend you will be of opinion it was his duty, watched her, in order to have recourse to the benevolent operation of the Harbouring Act. He saw her proceed in such a direction as induced him to suppose that she had gone to the house of the plaintiff. In a short time Dr. Scott, Dr. Turnbull, and Rhind came to Tuckwell’s and asked if the woman was there. Tuckwell told them she was not; they insisted upon entering. Tuckwell asked for their warrant or other authority. Dr. Scott replied that he was a Magistrate, and had authority within himself. Tuckwell said he would not permit him to enter without a warrant; nevertheless Dr. Scott, and Rhind, acting as I shall prove to you at the instigation of the other defendant Dr. Turnbull, forced their way into the house, went into the bed-room, pulled the bed about, searched it, and under it, every hold and corner, but the woman was not there. The fact was, that her person was not even known to Tuckwell, or any individual of his family, never having been upon his premises in her whole life. It is certainly not over pleasant to any of us to have our house searched over by lawful authority, but much less so when as in the present case, the act is utterly illegal, and in violation of the best rights of the subject. When a man makes a mistake I have to learn that there is any thing dishonourable in confessing it, and offering a manly concession for his error. Had Dr. Scott done so, even in the most trifling way, the plaintiff would have been satisfied. It is not to be expected of the unpaid Magistracy that they should have the law at their fingers’ ends, every allowance is to be made for their inadvertent acts, but at least, it is to be expected, that when they fall into such, they will not refuse to make the amende honorable. In order to give Dr. Scott an opportunity to do this, the regular notice required by the Act of Parliament was given to him, but he refused to avail himself of the proffered opportunity. I understand that some reference is to be made to the Act of Council of which I have spoken - the Harbouring Act. The 9th section of that law enacts, that it shall be lawful for Magistrates, upon information on oath, to issue a warrant to a constable, who armed with that authority, can enter - even break into any of our houses, by day, or by night, to search for runaway convicts. If Magistrates chose to act under this law the least which is to be expected from them is that they shall not exceed its extraordinary provisions. Dr. Scott, not doubt imagining that he was possessed of authority himself, to do what he could do by warrant, acted as I have stated; and although he must soon have been aware that he was altogether in error, he refuses to make that manly concession which is always the honorable course in all such cases, and drives my client into this Court, for redress, and I am satisfied that you, Gentlemen, will not fail to read him a lesson by your verdict, which will tend much to his edification. But the strangest part of his conduct is yet to come. No sooner was he served with the summons at the suit of the plaintiff, than away he goes to the Police-office, and charges the defendant with a breach of that beneficent law, the Harbouring Act, thus attempting to try this cause by a Police investigation. He failed however, as of course he could not but do. It is remarkable that, he omitted to have the testimony of the witness who alone could best prove the fact - the woman herself. He did not venture to call her, but I shall do so, and you shall hear from herself that she never saw the defendant until at the Police-office. If Magistrates will take upon themselves to carry the law into effect, they must be taught to take care that they do not exceed their authority. If they do not know what is the law, it is fitting they should be taught by, your verdict to read it, in order to make themselves acquainted at least with its ordinary provisions.

Mr. Gellibrand asked of Mr. Ross, the Counsel for defendants, Dr. Scott and Rhind, whether he would produce the notice of action served upon Dr. Scott, according to Act of Parliament. Mr. Ross refused to produce it. Mr. Gellibrand then asked if he would admit the notice to produce it, which Mr. Ross also refused. Mr. Gellibrand then called his first witness.

Mr. Rowlands. - I served a copy of this notice [produced] at the house of Dr. Scott, on the lst March 1832.

Cross-examined, by Mr. Ross. - I examined the copy, and believe it to be correct in every particular.

Mr. Stephen, (Clerk of the Court,) read the copy of the notice produced by Mr. Rowlands.

Mr. Ross objected to the notice as proved by the copy read, inasmuch as it was deficient in an important particular provided by the Act of Parliament, it not setting forth the form of action with sufficient prevision.

The Chief Justice. - The statute, only provides that the cause of action shall be set forth, not to state the form in which the action is to be brought.

Mr. Ross. - If the notice is sufficient to support an action on the case, but not sufficient to support an action of trespass, which this is, then I contend that my objection is valid. Mr. Ross referred to the cases 7th T. R. 631, Lovelace v Corry, and Strickland v Ward, which he read.

Chief Justice. - We have here but one description of process - writ of summons. The notice is expressly worded in reference to this. It says, an action will be brought by the said George Tuckwell, for the said trespass; so that even as respects the form of action, the defendants could not be misled.

Dr. Turnbull, who defended himself, addressed the Court in support of the objection, but was stopped by the Chief Justice, who stated he first wished to hear the Counsel for Dr. Scott close his argument.

Mr. Ross then repeated his former objections at some length; and having concluded, Dr. Turnbull was again about to address the Court, when he was interrupted by Mr. Gellibrand, as not being interested in the objection, which could only have reference to Dr. Scott, as being a Magistrate. The Chief Justice however, expressed his willingness to hear Dr. Turnbull, who urged various objections to the wording of the notice, which the Chief Justice over-ruled, stating that he should not preclude the defendants, should such be necessary, from taking whatever advantage they could here after derive therefrom.

Richard Hervey. - I am a coachmaker. On the 20th February, I was in the plaintiff’s yard. Dr. Scott, Dr. Turnbull, and Rhind, came to the door; plaintiff was standing there. Dr. Scott said, I understand that you have a female servant of mine concealed on your premises; plaintiff said no, sir, I have not. Dr. Scott said, I shall go and see; plaintiff said, shew me your authority - your warrant. Dr. Scott said, I am a Magistrate, I require no warrant; I am authority sufficient myself. Go in, said he to Rhind, and search the premises; Rhind went into the house, and Drs. Scott and Turnbull followed. Dr. Scott and Rhind went into the bed-room; Dr. Turnbull said to Dr. Scott, pooh, pooh, go in. (Witness here described the house.) The plaintiff said, Dr. Scott, I will thank you to walk off my premises; Dr Scott did not go; they remained for 20 or 30 minutes. There was a very great row, from 50 to 100 persons collected outside. Dr. Scott and the others found no one in the house. Dr. Scott came running in with Dr. Turnbull; he did not ask permission to search the house. I do not know Janet Anderson. (She was brought into Court.) I never saw her in my life to my knowledge, until I saw her at the Police-office, some time afterwards. She could not have gone into Mr. Tuckwell’s house without my seeing her, for I was all day at work in the yard - not more than five yards from the door. Dr. Scott was very abusive to the plaintiff outside the premises; he said he was a Magistrate, and would come at any time in the middle of the night, and search the house, if he thought proper. Jesse Morell, the blacksmith, was there at the time, also Mrs Collins. Dr. Turnbull staid there the whole of the time, and when Dr. Scott and Rhind went out, he went out with them.

Cross-examined by Mr. Ross. - It was about 6 o’clock in the afternoon. I lived at that time at Mr. Petit’s, the farrier, just above the barracks. I was absent when I went to get my dinner, about half an hour; I was not away at any time besides. She could not have come at any other time without my knowledge, till past 7 o’clock at night. I swear positively, she had not passed into Tuckwell’s house, as I have stated. Dr. Scott did not ask the plaintiff to allow him to go in; Rhind rushed past him. Mrs. Collins is Mr. Tuckwell’s housekeeper. There are but two rooms in the house; Morell lives in the next premises. The house stands about one or two feet above the ground, on logs of wood. There is no opening in the floor; I swear it. I know it because I have examined it particularly, since Dr. Scott was there; I cannot tell for what - for nothing particular. I saw no woman go out of his premises.

Cross-examined by Mr. Turnbull. - I heard all that passed outside the house; Dr. Scott seemed very determined; he did not hesitate a minute after he had asked whether the servant was there. You said, pooh, pooh, or some words to that effect, or similar words; the words, go in, came afterwards. You went into the sitting room. I saw you looking down between the crevices of the boards. I never said he has found her, or any thing like it. Had Dr. Scott, Mrs. Collins, and myself, been in conversation, I should have heard it. I did not hear you speak; I heard a talking, but I do not recollect what it was.

Re-examined. - I went to dinner, and returned an half past one. The boards are not wide enough to let a woman through.

By the Court. - I noticed Dr. Turnbull looking at a particular place in the floor, and I have often looked at the same place.

Janet Anderson. - I was lately servant to Dr. Scott. I was absent one day without liberty in February last; it was on a Monday. I have since seen a man named Rhind. I saw him that afternoon in company with James Dick. I did not know either Tuckwell, or Mrs. Collins by sight on the 20th February. I have since had a coachmaker’s shop pointed out to me in the Market place, as their residence. I never in my life was either in the house, the premises, or within side the gate; I never at that time, had spoken to that man in my life. My master, Dr. Scott, asked me whether I was at Tuckwell’;s some weeks afterwards; I was taken the same day; I returned to my master’s service the next morning.

Cross-examined by Mr. Ross. - I do not recollect what time of day it was when I passed Tuckwell’s house; I was not taken in the evening as I was returning home opposite Dr. Scott’s house; it was not dark; I was not in any house whatever after I passed Tuckwell’s; I just walked out; I was not far from Dr. Scott’s.

Re-examined. - I had been drinking in the morning.

Jesse Morell. - I saw Rhind, the constable, on the Jetty; I was standing at my shop door which joins Tuckwell’s premises; I am a blacksmith; I saw Dr. Scott, Dr. Turnbull and Rhind come to Tuckwell’s. I heard Dr. Scott say to him, you have my servant here; Dr. Scott said you have, and I shall look. - Tuckwell told him to shew his authority or his warrant; Dr. Scott said I am authority enough. Tuckwell told him something about not going into his house to overhaul it; Dr. Scott said I shall; Tuckwell said, you shan’t without you have got a warrant. Then Dr. Turnbull said, pooh! Pooh! Dr. Scott, go along; then they went in - Rhind first, then Dr. Scott, and Dr. Turnbull followed. They went in within two or three minutes of each other. Dr. Scott stopped and said something to Tuckwell; what it was I don’t know. He then went in, Tuckwell was unwilling that Dr. Scott should enter his house; he told him he should not without authority. I was within 20 feet of them, on Tuckwell’s premises - There was a mob assembled, 40 or 50 people - some in front of the house - some the other way. The plaintiff appeared to be angry; Dr. Scott hold him he was a Magistrate, and he would search his house whenever he liked; this was in the street, when the people were all about, after he had searched. I know Janet Anderson by sight; I had seen her pass the place about half an hour before; I was at my shop door looking up the market place. She came from Collins-street - she did not come into Tuckwell;’s premises; I never saw her on those premises in my life. I am sure Dr. Turnbull went into the house; I saw him go in and go out. I cannot exactly tell how long they were in - four or five minutes.

By the Court. - Janet Anderson, when I saw her, was passing along the brick wall between Tuckwell’s and the creek; their back was towards Bush’s; she was going towards Mr. Stockell’s. I think I saw her near his house.

Cross-examined by Mr. Ross. - I never was acquainted with Anderson, further than having seen her at Dr. Scott’s as I went by. I saw Hervey there when Dr. Scott came; I saw Mrs. Collins standing near the door, and Tuckwell. I am positive that Dr. Scott did not say it would save him the trouble of issuing a search warrant, if he would allow him to search the house. I have seen Mrs. Collins there every day, early and late. I am pretty well positive it is Tuckwell’s house; I have seen his lease from John Parker, of the ground it is on.

By Mr. Turnbull. - I know Hervey; he was half way between the door and the workshop when you and Dr. Scott arrived. I believe he took part in the conversation which followed; I don’t recollect what he said - it was about people coming there to search the premises. He kept on at his work; struck a blow or two, and then stopped. I think Hervey was talking to me the greater part of the time Dr. Scott was in the house. Hervey went once to the door; he might have gone three or four times more. I saw three or four people, perhaps a dozen, standing about; I did not count them - principally men. There are cracks between the boards of Tuckwell’s house.

Catherine Collins. - I live at Mr. Tuckwell’s. I have no interest whatever in the premises. I have seen Janet Anderson, but she never was in Tuckwell’s house or premises in her life. (Witness here described the arrival of Dr. Scott, Dr. Turnbull, and Rhind - that Dr Scott and Rhind went into the bed-room, and Rhind got under the bed and spoiled a silk gown, turned over a varnish case, and turned over the bed clothes.

Cross-examined by. Mr. Ross. - Dr. Scott ordered Rhind into the room, and when he came out he went in himself; he searched the little bed; Dr. Scott stood all the while at the door, and when I saw the indelicate things exposed, I looked behind me, and I saw Dr. Turnbull. I never saw Janet Anderson in my life, till I saw her at the Police-office.

Cross-examined by Dr. Turnbull. - You was in the house, but not in the bed room; and when I saw the things exposed, I was ashamed, and looked behind me, and I saw you, but you never troubled your head with any body.

By the Court. - Dr. Turnbull was in the sitting room all the time.

This was the plaintiff’s case.

Mr. Ross submitted that the plaintiff must be nonsuited - he has totally forgotten to prove a most essential point under the Act of Parliament, an endorsement must be inserted on the back of the notice, containing the name and place of abode of the plaintiff’s attorney; none such is on the back of the notice produced.

The Chief Justice. - This does not go to the merits of the case. The original notice was not been produced, but a notice to produce it has been proved, which I apprehend makes it incumbent on the defendant to produce it, to shew that it is not so endorsed.

Mr. Ross. - I submit that there is no such endorsement named in the notice to produce the notice.

The Chief Justice. - I can only say that it is exceedingly sharp practise to take such an objection as this.

Mr. Gellibrand - I wish your Honor to recall Mr. Rowlands, to ask whether the original notice, which has not been produced, was not so endorsed.

Mr. Ross objected, because the plaintiff’s case was closed.

The Chief Justice. - I shall certainly afford every latitude I can, consistently with my duty, where such technical objections as these are taken. It is constantly the practice for Judges, to ask Counsel whether they have not omitted to prove such and such points.

Mr. Ross. - There is an Act of Parliament of late date, for the protection of Excise offices, which carries the doctrine of my objection farther.t is material to the action, that this point should have been proved, and I trust your Honor will so consider it.

Mr. Gellibrand. - I am willing that, if your Honor will permit me to recall Mr. Rowlands, and I do not produce a case that warrants the recalling a witness in such a case as this, to consent to a nonsuit on the first day of next Term.

Chief Justice. - If I direct a verdict for the defendant, under the Act of Parliament, how will this affect the other defendants? I really think I ought to admit the evidence, and if I do wrong, you may move accordingly.

Mr. Rowlands, re-called. - The notice which I served on the defendant, was endorsed by me with my name and place of abode, as Attorney for the plaintiff, George Tuckwell, and was dated lst March, 1832.

Mr. Ross then produced a paper, which he stated was the notice to produce the notice, but which had not the lst March, 1832, as stated by Mr. Rowlands, and in other respects differed from Mr. Rowland’s copy.

Mr. Rowlands stated, that he prepared four copies, and two had been stolen from him during the enquiry at the Police-office; but he was perfectly confident that the one he served was endorsed as he had stated.

The Chief Justice. - If you do not produce the notice, they can give parole evidence of its contents. They have done so. Mr. Rowlands swears that it was properly endorsed; if it was not, produce the original.

Mr. Ross. - The notice served upon us does not contain a perfect copy of the notice we possess and therefore is no notice to produce it.

The Chief Justice. - They give you a notice to produce a notice; you have not done so. They then have a right to give parole evidence; they do so. If Mr. Rowlands has sworn wrong, produce it, and give it in evidence.

Mr. Rowlands was cross-examined by Mr. Ross, and adhered positively to his former statement, that he had prepared four copies, two of which were lost at the Police-office; but the one he delivered at Dr. Scott’s was a correct copy of the original draft which he held in his hand, and which was endorsed according to the Act of Parliament. He thought the notice he served on Dr. Scott was a whole sheet of paper; that which Mr. Ross had in his hand appeared to be half a sheet. Mr. Rowlands also pointed out other differences which convinced him that the paper Mr. Ross had was not the original one her served, but one of those stolen from the Police-office.

The Chief Justice after some deliberation decided upon proceeding on the trial.

Dr. Turnbull had to offer objections to the declaration, but they were over-ruled by the Chief Justice.

Mr. Ross then addressed the Court for the defendants, Dr. Scott and Rhind, at considerable length, of which the following is a summary. I have considered it my duty to take the objections which I have done, unconnected as such are with the merits of this action, solely because the plaintiff has driven me to that course, by shutting me out from any means of placing before you by evidence the real facts of the case. He has made all who were present defendants, so as to deprive me of any testimony on the part of Dr. Scott, who alone had any thing to do with the matter. Mr. Gellibrand opened his case with a much stronger representation than even his witnesses have borne him out in, and even admitting their statements to be true, the very contrary of which is the fact, what appears to your view? as frivolous and pitiful a case as ever was brought before a Court. Much has been said about Magistrate’s over-stepping their duty, and a verdict which should teach them how to perform it with accuracy. What are the real facts? Dr. Scott, in common with all, is subjected to the occasional desertion of his servants. I need not say one word upon the inconvenience which this produces - they abscond, and are received and harboured by individuals, to detect and punish whom is an ought to be a most desirable object. He sent a constable in pursuit of her, and the defendant Rhind goes and finds her, as he believes, going into the house of the plaintiff. He returns to Dr. Scott, and meeting him and Dr. Turnbull, they all three proceed, upon the spur of the moment, to Tuckwell’s. He need only have stopped to have signed and sealed a warrant, and no possible objection could have been made. He goes however himself, he asks for his servants Tuckwell tells him she is not there, but bids him go in and search. He did so safely, because he knew she was gone; and how do these facts appear, even by the evidence of the plaintiff himself. (Mr. Ross here went through the evidence, commenting upon such facts as appeared to require such, as he proceeded, dwelling upon the discrepancies between the statements of all the witnesses, particularly those of Hervey and Mrs. Collins.) And now, gentlemen, what does all this amount to? A great deal in sound, but nothing whatever in substance. What damage has been done? What injury has the plaintiff sustained that one farthing will not more than sufficiently compensate? Dr. Scott has been severely censured by Mr. Gellibrand for an illegal exercise of his Magisterial authority. I ask you, gentlemen, who is there, situated as Dr. Scott was, even if he was not a Magistrate, who would not have acted as he did. I lament that I am unable, owing to the proceedings of the plaintiff himself, from giving in evidence the real facts of the case; had not all the parties present been made defendants, obviously for the express purpose of shutting out their testimony, I could have proved to you that Tuckwell himself requested Dr. Scott to go in and search for his runaway servant; and as to Dr. Turnbull, you will learn from him, I have no doubt, that he was never in the house at all. But I repeat, that even if every word of the contradictory story told by the plaintiff’s witnesses was true, what would it amount to? I am confident that the very least sum will be sufficient to compensate for any possible injury that the plaintiff, even by the statement of is own witnesses, can have sustained. Mr. Ross again went over much of the evidence and concluded his address, by pressing upon the consideration of the Jury, that the plaintiff himself had prevented the real facts from being given in evidence, by the unwarrantable measure of making all the parties defendants.

Dr. Turnbull addressed the Court in his own defence, in a long and impressive speech, of which we can only give the leading features. It appears to me that I cannot better commence my defence than by giving a plain and simple account of the real circumstances which occurred. Dr. Scott and myself were proceeding down Campbell street, earnestly engaged in the consideration of a professional case of some importance, when we were met by Rhind, the constable; who stated that he had just seen the runaway servant go into Tuckwell’s. We were close to the spot, and Dr. Scott having suffered much inconvenience from the absconding of his servants, was exceedingly anxious to discover those who harboured them. I sympathised with him in this feeling, my family having been subjected to no small annoyance from the same cause. I accompanied him, but I solemnly assure you without the slightest intention of taking any part in whatever might occur. We went, to Mr. Tuckwell was at the door, as was Mrs. Collins. Dr. Scott demanded his servant; Mrs. Collins said that thief, pointing to Rhind, has been annoying us about her, but she is not here. Dr. Scott requested permission to go in and search for her, it being possible that she might have secreted herself in the house, unknown to the owners. Mrs. Collins said, show me your warrant. Tuckwell affected to be extremely indignant, at the idea of secreting a prisoner servant, but he said, go in. Dr. Scott went in with Rhind; I followed almost mechanically until within about five yards of the door, when it struck me that I had no right to interfere. What had I to do with it? I turned back again, and remained at the gateway until Dr. Scott returned. I then told him that I have heard some one in the yard call out, he has found us out now. I was anxious to depart, the time was arrived for my attending a patient, and I went away. I most solemnly declare that I never entered the house at all. How incredible is it, that I should do so, and that going only to the outer room, I should there remain while the search was proceeding in the next room for ten minutes, stuck fast like a post to one spot, with my eyes fixed, poring upon a crack in the floor? Is it creditable that a man, committing such a trespass, as forcibly entering a house, should when he had so done, stand stock still looking stedfastly at a hole in the floor? Refused entrance, as the plaintiff’s witnesses swear we were, is it probable, as if possible, that when I had forced my way in, I should do so without an object? Assuredly not, and I did not! (Dr. Turnbull then proceeded, to comment upon the whole of the evidence, and the palpable contradictions which appeared throughout.) It is asserted by one of the ablest writers, that where testimony is at variance with what is obviously the natural course of proceeding, to reject it. The true way to consider the whole of the evidence before you, is that it neutralises itself and goes for nothing. I most solemnly assert that I never entered the house; I am aware that I cannot prove this, because the plaintiff has deprived me of the only possible means of doing so; thus then, I have only to press all I can in the way of mitigation. The object was a legal one. It was to recover a runaway convict; an object which, in a Colony such as this, has been considered of such pressing importance, as to call for an especial legislative provision, in which the indulgence to all who act under it is given of enabling them to plead that Act to any action that may be brought.

The Chief Justice. - Dr. Turnbull, this is not an action for any thing done in apprehending a convict illegally at large.

Dr. Turnbull. - I hope, Sir, that it will be considered, that engaged as we were in an object of such importance to the public interests, that we shall be not only justified in all we did, but that we should have been so, had we gone farther, and as the Act contemplates broken open the doors. (Dr. Turnbull here read from various authorities, which lie argued bore out the course of proceeding complained of.) Chitty says, that if I go without permission into a house which is open, that such is a trespass, unless I do as for a justifiable purpose.

The Chief Justice. - But must you not have pleaded that justifiable purpose?

Dr. Turnbull. - No Sir. I submit that as I am sued conjointly with a Magistrate, I partake of all his privileges.

The Chief Justice. - But I really cannot discover how Dr. Scott has at all acted here Magisterially.

Dr. Turnbull. - The plaintiff himself makes him do so by this action.

The Chief Justice. - By his notice he does, but if the facts proved do not give him that protection, he is not to assume it.

Dr. Turnbull. - The Colonial Act gives the power to any individual to do much more than we are charged with doing in pursuit of runaway convicts.

The Chief Justice. - Yes; but you assume that Dr. Scott’s servant was in his plaintiff’s house, of which there is not only no proof, but the direct contrary is in evidence.

Dr. Turnbull. - I am aware that therein lies the difficulty, unless your Honor shall consider the contradictions to be so decisive as to disbelieve the evidence, and that thereby I am entitled to the benefit of the bona fide, with which I again repeat, my most solemn asseveration, that - .

Mr. Gellibrand. - I really must very unwillingly put a stop to this; I ought to have done so before, but cannot longer suffer such irregularity to continue.

Dr. Turnbull. - What! am I to be deprived not only of every witness who could declare the facts, but also of my own asseverations to the truth of my statements?

The Chief Justice. - Dr. Turnbull, I assure you I am sorry to stop you, but I must do so; you place us in a very painful situation. It is the constant practice of Counsel, never to state a single word, but as they are instructed they can support by evidence; upon the faith of which instructions they make their statements, and upon which the Court hears them, upon their responsibility that they will prove all they so state. You are making solemn asseverations, and we are placed in the painful situation of finding a verdict against the evidence, or against your solemn asseverations; such a course cannot be permitted.

Dr. Turnbull then sat down.

The defendants called no witnesses.

The Chief Justice commenced his summing up by explaining to the Assessors the nature and effect of the pleadings. I cannot see, said His Honor, upon what principle this is made a Magisterial Act. Dr. Scott went to the plaintiff to seek his assigned servant, but upon what pretence can his conduct there be connected with his Magisterial duties? How can it be assumed that Dr. Scott, because his servant elopes, acts as a Magistrate, when he goes in search or her? Why every other man whose servant elopes could do the same. Could Dr. Scott have issued his warrant in this case? Would any Magistrate have ventured to have done so? and can he then act himself personally in his own case, in which surely he should go to another Magistrate. I cannot see the shadow of pretence for his assuming this to be a Magisterial act, and therefore it appears to me, that I should throw all that part of the case out of consideration. The Chief Justice then went over the evidence, in which he stated that although there were some trifling contradictions, yet none so material as to give it the character which Dr. Turnbull cast upon it. It is by no means incredible, continued His Honor, that Dr. Turnbull should have looked upon the floor as is described; for if the house is so situated that there was a possibility of escape under the floor, as was stated by Dr. Scott’s Counsel, surely it is by no means an improbable supposition that a person in the outer room while the search was going on in the inner, would look where such means of escape might be apprehended. If you do not believe the evidence, then of course you will find for the defendants, otherwise you will assess damages in reference to your opinion of the degree of injury sustained by the plaintiff. There are no other points as to which it appears necessary for me to particularly call your attention. You will therefore consider of your verdict.

The Assessors withdrew for a short time, and upon their return, the Chief Justice declared the verdict for the plaintiff - Damages Sixpence.

In this case, we apprehend it will be for the Judge to certify, or not, as to costs, as he shall determine.

[The above Report will, no doubt, be recognized by our readers, as being from the pen of the late Editor of this Journal, to whom we thus willingly acknowledge our thanks for his attention. - Ed.][2]

Notes

[1] See also Hobart Town Courier, 12 May 1832.

[2] The late editor was R.L. Murray, see E.M. Miller, Pressmen and Governors: Australian Editors and Writers in Early Australia (Sydney, 1973), pp. 175-6.