[criminal conversation – adultery – malicious compensation]

Tolman v. Kelly

Sherrott v. Kelly

Supreme Court of Van Diemen’s Land

Pedder C.J., 16-17 September 1839

Source: Tasmanian, 20 September 1839[1]

Tolman v. Kelly

            This was an action brought for criminal conversation, - the damages being laid at £1000. Messrs. McDowell, Ross, and Rowlands conducted the plaintiff’s case, and Messrs. Horne and Wynne, that of the defendant. The trial occupied the Court, till 9 o’clock at night, - and, the Jury, having retired for about twenty minutes, returned a verdict of £300.

We possess a full report of this trial; but, as the publication of the evidence, in such a case, could be productive of no good, we suppress it - contenting ourselves with merely giving the result.

Tuesday, September 17

Tolman v. Kelly

            This was an action brought to recover a compensation in damages, for a malicious prosecution. The damages were paid at £500.

Mr. Ross opened the pleading, stating that the declaration contained two counts. - lst - That the defendant, without reasonable and probable cause, caused a warrant to be issued against the plaintiff, as he suspected, or had cause to suspect, that a hat, which had been stolen from him, was in the house of the plaintiff. The 2nd count charged, that the defendant afterwards, accused the plaintiff of assaulting him, and caused a warrant to be issued, upon which he was apprehended, and imprisoned for some time; thereby injuring him, and putting him to considerable expense, &c.

Mr. McDowell addressed the Jury, laying before them the circumstances of the case, which arose out of the previous one; but, for the reasons, already stated, we refrain from publishing the particulars.

The trial occupied a considerable time, and the Jury, after a short absence, returned a verdict of £70 damages for the plaintiff.

Pedder C.J., 16 September 1839

Source: Tasmanian, 27 September 1839

Before Sir John Lewis Pedder, Knt., and a Special Jury

Sherrott v. Kelly

            This was an action brought to recover a compensation in damages for a malicious prosecution. The circumstances of this case arose out of the case Tolman v. Kelly. The Jury returned a verdict for plaintiff. - Damages £25.

Sherrott v. Kelly

            This actin was brought to recover damages for an assault.  The circumstancess were similar to the foregoing case.  Verdict for the plaintiff, Messers. Horne and Wynne for the defendant.

In banco, Pedder C.J. and Montagu J.,  8 November 1839

Source: Hobart Town Advertiser, 15 November 1839

Sittings in Banco

Before His Honor the Chief Justice and Mr. Justice Montagu

Exparte Kelly

Mr. Horne on behalf of Mr. Kelly, moved for rule to show cause why the verdict obtained at the last sittings against his client by Mr. Tolman, for malicious prosecution, should not be set aside at judgment entered as in case of a nonsuit.

Their Honors were of opinion that Mr. Horne could not move for a nonsuit without consent; a motion for a new trial might be entertained, and on such a motion a rule nisi would be granted.

Mr. Horne intended to move for new trials in Sherrott’s cases on the same grounds.

Their Honors said they would look into the point.