Drum v Price, 1843

[assault – false imprisonment – magistrate, action against – damages, exemplary]

Mr. Macdowell, and Mr. Montagu, appeared for the plaintiff; attorney, Mr. Dobson. For the defendant, the Attorney and Solicitor Generals; attorney, Mr. Perry.

Mr. Montagu opened the pleadings. The declaration stated that this was an action to recover compensation, for assault, and false imprisonment, on the 25th May 1843.

Mr. Macdowell said, he had the honor of appearing, with his learned friend, who had correctly stated the nature of the action, as counsel for Mr. Hugh Drum, who now sought to recover damages for an assault, false imprisonment, and consequent injury to his character and reputation, which he had sustained by the acts of the defendant. Mr. Price, as they all knew, was a Police Magistrate, and, after they had heard the evidence which it would be his duty to lay before them, it would be for them to say whether any excuse could be offered for his conduct, even in that capacity. If his instructions were correct, and, (having seen all the parties concerned), he could entertain no doubt on the subject, it would be for them to say whether the conduct of the defendant had not been oppressive; and, if satisfied of that, he would call upon them to visit such conduct with exemplary, and even vindictive damages; and, certain he was, that nothing less than the amount stated in the declaration would satisfy the justice of the case. In this colony, for wise purposes, the law had armed magistrates, as regarded one portion of the population, with extreme powers: but it was not to be endured that the practice into which they might fall in the administration of those laws to one class of individuals, should induce them to lose sight of what was due, in the administration of justice, to free subjects of the Queen. In all such cases, when fully proved (as in the present action he believed it would be), the duty of jurors to society, was to mark the sense of the arbitrary exercise of power in the strongest possible manner. It would appear that, about five years ago, Mr. Hugh Drum, the plaintiff in this action, had the misfortune to become the tenant of Mr. Thomas George Gregson, on a certain portion of that gentleman’s estate at a yearly rental of 100l per annum. Previous to the expiring of the tenancy, Mr. Gregson drew a bill on Hugh Drum, the plaintiff, which was accepted by him; and honored by the plaintiff. The learned counsel then read and commented upon several letters which had been addressed by Mr. Gregson to the plaintiff; in one of which he said, “to neither of my letters have you paid any attention; and as I see that you have been busy in removing your property; that you was at work preparing to desert the premises all the day on Sunday, I am disposed to think you do not intend to act honestly. You undertook to leave five hundred bushels of wheat, on my account, at Mr. Woodward’s, until all matters in dispute are settled; which you have failed in doing. You may easily avoid all inconvenience by naming an arbitrator.” The learned gentleman contended that, as the rent had been paid, and the plaintiff having been allowed time to remove his crops, the idea of appointing an arbitrator to settle differences, which appeared to have had no existence, was somewhat novel. This notice was followed up by another, threatening the impounding of the plaintiff’s cattle, which was subsequently carried into effect. The learned Counsel then related the facts, as they will be found in the following evidence of the Drums (remaining contumacious), having been turned off the premises by Mr. Gregson’s servants; of their returning in the dead of the night, with four men expressly engaged for the occasion, breaking open the hut, firing off a gun, and binding with cords one of Mr. Gregson’s men, who was left in possession; of the Drums being detained from about three o’clock in the morning until eight, when Mr. Price arrived, and the Drums were given in custody on a charge of felony, and on their immediate liberation by Mr. Price, on receiving information that the charge of felony was withdrawn.

Mr. Hillyard, clerk to Mr. Dobson, proved the service of notice of action on the defendant; and also several bills drawn upon the plaintiff, and receipts for payment of rent, in Mr. Gregson’s hand writing.

Peter Drum was then sworn. - He said, I am brother of Hugh Drum, the plaintiff in the present action. He has been a farmer at Risdon, under Mr. Gregson, for several years.

The Solicitor General submitted that any transactions between the plaintiff and Mr. Gregson was entirely irrelevant to the issue between the plaintiff and Mr. Price. The simple question was, had the man been assaulted and wrongfully taken into custody by Mr. Price.

The Chief Justice thought the evidence might be gone into, to prove the situation of Drum at the time of the arrest.

Examination resumed. - My brother had no lease of the farm from Mr. Gregson; but there was a tenancy. I was not present when any agreement was made; I do not know whether the rent was to be paid half-yearly or yearly. I remember my brother having received a note from Mr. Gregson on the 15th March, in which was inclosed a bill made out for rent, drawn by Mr. Gregson on my brother. I paid the bill on the 18th May. My brother had occupied the farm from May 1838, to May 1843. On the 23d May, Mr. Gregson came with Mr. Wittenhall, a Magistrate, accompanied by a number of his assigned servants and free men. We were not in readiness to leave the premises, until we had our wheat thrashed and cleared; Mr. Gregson had given us permission to stay two or three months until we were ready. When Mr. Gregson told the men not to allow us to remove the cattle and property, I asked him where was his authority, as the rent was paid; he made no answer. Two men came and took me by the collar, and dragged me into the road, and said if I came back there I should receive some serious injury. Alexander Barr and Abel Dicker were the two men who came and dragged me out of the house; I do not know the other men by name, but I know they were servants of Mr. Gregson. Myself and brother, and four other men returned again in the night, to take possession of the property. When we reached the hut, we broke open the door, and found Dicker in bed, with a gun standing by the wall. Mr. brother brought the gun to the door, fired it off, and returned it to the place he took it from. We told Dicker not to be alarmed, for he should receive no injury. We tied his hands, left him sitting on the bed, and left a man in charge of the hut. My brother and I proceeded to the barn to remove the wheat, and found that the men we had brought with us had gone away. We then removed a few bags of wheat to the dray, close by the road. Soon after some of Mr. Gregson’s men came up the road, running very fast. One of the men said, “Take them prisoners;” they seized us, knocked my brother down and ill-used him. They dragged us away to a hut of Mr. Gregson’s, at nearly 3 o’clock in the morning; we were detained there by Mr. Gregson’s men, until the arrival of Mr. Price, between seven and eight o’clock in the morning. At that time we were outside the hut; Mr. Price was accompanied by two constables. Mr. Price addressed Abel Dicker, and asked “What charge have you against these men?” Abel Dicker paused for a moment, and Mr. Price said, “If you do not charge them with felony, I cannot take them prisoners.” Dicker said, “I do charge them with felony.” Mr. Price then said to the constables, “take them in charge; take them into custody.” I asked Mr. Price to wait a short time until we could get our hats and coats, as a man had gone for them. Mr. Price then said, “constables do your duty;” and said to my brother and myself “If you don’t come along I’ll hand-cuff you.” Both the constables had guns, and one of them pushed us forward. They marched us on towards Mr. Price’s own house, through the bush-road. I said “it’s a hard case a man cannot protect his property, without being charged with felony.” Mr. Price said, “don’t you owe some rent?” I said “No” the rent was paid. He asked if the cattle was not impounded; I said “yes,” but there was no cause for that to my knowledge. We were overtaken by a man of the name of Robert Rodgers on horse back. He had a conversation with Mr. Price which I did not hear. Rodgers was a servant of Mr. Gregson’s. Mr. Price turned round, and said to my brother and myself, “Mr. Gregson has sent word that you shall be liberated,” and added “you may think yourselves devilish lucky fellows;” and ordered us to go home. We were well known to Mr. Price, who lived near our barn.

By the Attorney-General. - I lived in Hobart Town when my brother first made an agreement with Mr. Gregson; my brother was Mr. Gregson’s overseer; I was joint tenant with my brother. There was a recent action in this Court, to recover the value of the wheat and other property from Mr. Gregson. There is another action against the defendant at my own suit for the same transaction. Mr brother and myself drew a dissolution of partnership some time ago, which was not published in the newspapers; I have no interest in the action, not the least; a lease of tenancy had been prepared, but never executed; I never knew that there was a verbal agreement, that me and my brother was to grub up a certain portion of land yearly, clear off the stumps, and the brash; there was no certain portion of acres mentioned; we were joint tenants and paid the rent to Mr. Gregson jointly; myself £50 a-year, and my brother £50 a-year; at the expiration of the lease, some months before the 23rd of May, we got permission from Mr. Gregson to remain two or three months, after the expiring of the tenancy. Mr. Gregson did not give us permission to remain when he came with another gentleman on the 23rd May; I did not give up possession of the hut on Mr. Gregson’s ground to Abel Dicker on the 23rd May; I did not, to my knowledge, say to Mr. Gregson’s servants “Now, my men, there’s the hut for you;” I remained quiet until the evening of the 24th, when I came to Hobart Town; between half-past one and half-past two in the morning, we went there with four men, ourselves made six; the four men eloped when the door was broken open; I had no arms with me, except the arms I have now; my brother had a rope, which I bought for the purpose of tying the man; one of the men had with him a stick, a “Tipperary twig,” it might have been used with both hands; there was a great “hurrabooloo” that night;’ a great number of ravenous men; I do not know whether the gun my brother fired off gave an alarm; when Mr. Price came, with the two constables, in the morning, Abel Dicker was on the ground, but I do not know whether he came with him; Mr. Price said, through derision, when you get to my place I’ll give you a jacket; he did not touch either of us; he told the constables to do their duty, and one of them put his gun to my back to trust me forward. When I heard a man charge us with having committed a felony, I did not then say “it was a hard case a man could not protect his own property.” Mr. Price let us go almost immediately after the man came up on horseback. We were in custody seven or eight minutes after I told Mr. Price it was hard we could not protect our own property. We were in custody altogether about 25 minutes. Neither the constables or Mr. Price seized, beat, bruised, or ill-used us; it was not them who beat us; they used no personal violence. I am certain Mr. Price told Abel Dicker ;If you do not charge them with a felony, I cannot take them into custody.” Oldfield, and another man, were as near Mr. Price as myself; they were near enough to hear every word that passed. After my brother fired off the gun, he replaced it in the hut. I do not know that the gun was ever placed underneath some straw on the outside the hut.

Re-examined by Mr. Macdowell. - When we broke into the hut, one man was left with a candle, in charge of Abel Dicker in the hut. Three other men were outside with myself and brother, making five in all. The reason why I did not mention to the defendant that this dispute was about rent, when first charged with felony was, because, from the manner in which he came, I thought he was in possession of the facts. The gun was discharged immediately on our going to the hut.

The Attorney-General, after the evidence of this witness, and a misunderstanding rather warmly expressed between himself and the Chief Justice, abruptly left the court, informing his Honor that he had received a note, desiring his attendance at Government House.

[A press of advertisements compel us to defer the remainder of this case to our next.]

Several immaterial points in the evidence of Peter Drum, were confirmed by two other witnesses.

The Attorney General, who, in the outset of the case, had placed on the table of the court, and in front of his brief-bag, (in imitation of the learned counsel on the other side), a formidable array of law books, being still absent, the duty of addressing the jury for the defence, (rather unexpectedly as we surmise), devolved upon the Solicitor General. The learned gentleman deprecated the extensive introduction of extraneous matter into this case; and contended that evidence as to a lease drawn up, but never executed; a verbal agreement as to tenancy; the receipts for the payments of rent of the Messrs. Drum to Mr. Gregson, and the subsequent disputes between the parties, owing to the Drums not having fulfilled their part of the contract as to the clearing of land, had nothing whatever to do with regard to the question now at issue between the plaintiff in this action and the defendant. That question, and the only question was, whether the defendant had, under the circumstances, assaulted, and falsely imprisoned the plaintiff. The jury had heard that the Drums were ejected by the owner of the property, after due notice in writing and the expiry of the tenancy. A promise of the landlord that they might remain to gather in their crops, had been mentioned, but of that there was no sufficient evidence. At all events, there was evidence to shew that they had been warned to quit the premises, after failing in their engagement to leave a certain quantity of wheat with Mr. Woodward, until all disputes were settled. The witness, Peter Drum had said, that by the terms of the tenancy, the number of acres to be cleared, stumped, &c., was not stipulated; but where was the proof that they had cleared any land at all? That was one of the breaches of contract of which their landlord, when he took possession, had to complain? He made a written offer to submit all matters in dispute to arbitration, which the Drums treated with silent contempt. What was he to do? Palpably to take the course which he followed. But all this, he would again repeat, had no connexion whatever with the present case. Mr. Price, a Police Magistrate, lived in the immediate neighbourhood, where, in the dead of night, a house had been violently entered, a gun discharged, and (according to the evidence of Drum himself), a “hurrabaloo” raised, alarming everybody in the neighbourhood. Well; what does Mr. Price do? At eight o’clock in the morning, (or somewhere thereabouts), he goes with two constables to ascertain the cause of all this extraordinary excitement, created at an unseasonable hour of the night. The two Drums had been detained, and were charged by one of the persons present with having committed a felony. The constables were then told to do their duty; but no violence was used. If there had been any, it was committed before by other parties, and for which Mr. Price was not at all responsible. The Drums were in Mr. Price’s custody but a very few minutes; they suffered no damage; and were released immediately on Mr. Price receiving a message that the charge of felony was withdrawn. If they had been inconvenienced, it arose from their own negligence, or not informing Mr. Price, when charged with felony, that it was merely a dispute about rent. If they were entitled to any damages whatever, it would be measured by the smallest possible coin of the realm; but, he submitted, the defendant was fully entitled to a verdict in his favor.

The Attorney General entered at the moment his learned colleague had concluded his address, and cited one or two cases in proof that the defendant had sufficient authority to act.

The Chief Justice summed up, and the jury returned a verdict for the plaintiff, damages 50l.

On the Chief Justice entering the Court this morning, he suggested to the learned Counsel on both sides, that it was unusual to try two cases at the same sittings, where the actions arose from the same transaction. A report was read, where the late Lord Chief Justice Tenterden had so laid it down. The defendant’s Counsel expressed their anxiety to proceed, as the newspapers reports of the previous trial might lead to an impression of the defendant having acted harshly or tyranically. The Chief Justice did not think a report of the proceedings could have any such effect. A suggestion of the Attorney General, that the second action might be abandoned, was refused compliance with by Mr. Macdowell, who said the case must go to a jury. Eventually his Honor postponed the trial to the next sittings. This concluded the business of the Court.

This was an action for false imprisonment against Mr. Price, the Police Magistrate of Hobart Town.

Mr. Macdowell in behalf of the plaintiff, stated that he had recommended a nominal verdict of 40s., with costs, as between attorney and client. The counsel observed that, he had recommended this course, as he considered that Mr. Price, from his over zeal, had exceeded his authority.

[1] See also Hobart Town Courier, 22 September 1843. Price was a severe and interventionist magistrate, who later became commandant of Norfolk Island and Inspector-General of Penal Establishments in Victoria, see J.V. Barry, The life and death of John Price: a study of the exercise of naked power (Melbourne, 1964) and S. Petrow, 'After Arthur: Policing in Van Diemen's Land 1837-1846' in M. Enders and B. Dupont (eds.), Policing the Lucky Country, (Sydney, 2001), pp 176-98.

[2] See also Hobart Town Courier, 22 December 1843.