[cattle - magistrate, action against]

Owen and Lord v. Schaw

Supreme Court of Van Diemen's Land

Pedder C.J., 11 July 1835

Source: Tasmanian, 17 July 1835[1]

Saturday, July 11

Messrs. Gellibrand and Horne for plaintiffs; the Attorney General for defendant. This was an action for damages sustained by plaintiffs, in consequence of the defendant, Major Schaw, of the 21st regiment. Police Magistrate at Bothwell, having imprisoned two men, named Lindsay and Oliver, servants of the plaintiffs, employed in driving down thirty-three head of cattle from the Government land at the Lakes, to the estate of plaintiffs, at Lawrenny. It appeared in evidence, that upwards of half these cattle were without any brand, and the others were branded with the brands of the plaintiffs - those they use separately and jointly - that the man who had them in charge had been repeatedly charged with cattle-stealing; and that having halted at night at Bothwell, having started again the next morning, the inspector of cattle, Mr. Willis, having sent constables for him to turn back with the cattle, and suffer the cattle to be inspected he refused. Major Schaw then issued a warrant, upon which the men were apprehended, and the cattle driven into the pound, but afterwards put into Major Schaw’s paddock of ten acres. The men were discharged in one hour and a half, but the cattle were detained for four days, until Mr. Goldie, plaintiffs agent, sent for them, when they were returned, in a considerably deteriorated condition. In the meantime, Mr. Goldie had written to Major Schaw, requesting to know the cause of the detention of the cattle, and the imprisonment of the men, promising to punish them had they behaved improperly; to which letter Major Schaw did not return any answer, although it appeared he had sent a verbal communication, express, by a constable, to Lawrenny, which he delivered to Thompson, the overseer; but which, Mr. Goldie, being at Arielton, did not receive. It appeared that the stockmen were free men, and were paid for collecting these cattle at the rate of one in five of all they delivered at Lawrenny. This arrangement the Attorney General considered a partnership, and submitted that the plaintiffs must be thereon nonsuited. The Court overruled the objection, and sent the case to the Jury, making, however, a reserved note of it. Verdict for plaintiff. Damages, 40s.

Notes

[1] See also Courier, 17 July 1835, with a slant in favour of the Attorney General, describing his performance as "most masterly". Schaw often quarrelled with his neighbours and his decisions as a magistrate were influenced by his previous relations with parties bringing cases before him, J. Carington Smith, ‘Charles Schaw (1785-1874)’, ADB, vol. 2, p. 421.