Pedder C.J., 10 June 1824

We may add however, what in haste has been omitted, viz. that both Mr. Kermode and Dr. Hood disclaimed the slightest intention to molest Mr. Talbot; that they stated the sole object of the note, which he had construed as a challenge, was to procure his retraction of an avowal which they deemed him to have uttered without foundation; and that when Mr. Kermode objected to the terms of security proposed by the Attorney-General, as being, in his opinion, uncalled for, as well as excessive, Mr. Talbot most properly declined all personal interference, on a conviction, that the Court would do no more nor less in the affair than was necessary for the protection of his person, and the public peace.

Anthony Fenn Kemp, Esq. became surety for the parties.

Pedder C.J., 16 June 1824

Source: Hobart Town Gazette, 18 June 1824

The King v. WILLIAM KERMODE and SAMUEL HOOD Esquires, on the Prosecution of WILLIAM TALBOT, Esq. for sending and bearing a challenge.

The Attorney-General, in bringing this case under the consideration of the Jury, expressed his regret that the spirit of conciliation manifested by his client had not been met by a corresponding feeling on the other side; and as they who had violated the Law, manifested in this as in some other cases, a spirit that would not bend to any concession, he was under the painful necessity of appearing on the present occasion; and if, said the Learned Gentlemen, I only establish one-tenth part of the evidence I shall bring before you, I shall shew that a positive challenge has been given by the defendants, and that they have attempted to provoke my client, notwithstanding their honourable, asseverations to the contrary, to fight a duel.  My client is respectable, from his character, his situation in life, and his connections; so are the defendants.  I do not come here with any intention or desire to say any thing to the contrary.  The history of the transaction, which has led to this unpleasant enquiry, is as follows:-- On the 5th instant, my client met the defendant, Kermode, at a party at Mr. Gardiner's.  A conversation took place on the subject of the pending prosecution against the Committee for managing the petition for the independence of Van Diemen's Land, for a libel on Mr. Murray.  Mr. Talbot stated, that he had seen in the hands of Mr. Murray a paper, which he believed was in the hand-writing of the late Lieutenant Governor Sorell, expressing His Honor's objection to the terms of the requisition as dictatorial.  On the following Tuesday, Mr. Talbot met the defendants, when Mr. Kermode told Mr. Talbot that he had seen Colonel Sorell, and that he denied having written any paper upon the subject of the late requisition; he therefore insisted upon Mr. Talbot's retracting what he had asserted; and, in pressing for this retraction, he was joined by Dr. Hood.  Mr. Talbot replied, that the impression upon his mind when he saw the paper was, that the hand-writing was Colonel Sorell's, and that that impression still remained; he, therefore, could not retract that which was a mere matter of opinion.  Some further conversation took place between these Gentlemen - the defendants pressing for a recantation and Mr. Talbot still urging the impossibility of asserting that of which he was not convinced.  On parting, these Gentlemen told Mr. Tablot, that he must make up his mind, for he should hear further from them.  The next morning, Dr. Hood called at the house of the Rev. Mr. Conolly (where Mr. T. resided), who had been present at the preceding interview, requesting to see Mr. Talbot - Mr. Conolly told Dr. Hood, if peace was his object, he was welcome, but that he did not choose that his house should be the scene of such unbecoming behaviour as was manifested yesterday by himself and Mr. Kermode to Mr. Talbot.  After some conversation between these Gentlemen, Mr. Talbot, who at first had refused to see Dr. Hood, requiring every communication from him to be in writing, complied, and then Dr. Hood again pressed him to retract that the paper in question was in his belief in the handwriting of Colonel Sorell.  Mr. Talbot replied, that the paper might or might not be in the hand-writing of Colonel Sorell; but that he could not, nor would he for any man say contrary to the evidence of his senses.  Then said Dr. Hood, ``Mr. Kermode expects to meet you to-morrow morning, at 6 o'clock."  Mr. Talbot replied, I will not meet him - I have no idea of being made a scape-goat by going out with the bully of another man.  I have done nothing to the injury of Mr. Kermode or Dr. Hood; neither of you have any right to call me out; if any one can be aggrieved, it must be Colonel Sorell; but I will not go out with his bully.  Dr. Hood then expressed a desire that Mr. Conolly would keep secret this conversation, which Mr. Conolly refused, at the same time expressing his sense of the impropriety of duelling.  Dr. Hood then wished to speak with Mr. Talbot alone, or with some other friend than Mr. Conolly.  Mr. Talbot refused, saying he would have nothing to do either with him or Mr. Kermode.  Dr. Hood then retired, saying, that they, meaning himself and Mr. Kermode, would find some way of seeing him alone.  After some pertinent observations of the learned Attorney-General, on the greater criminality of seconds in these unhappy disputes than the principals, he directed the attention of the Jury to the Law upon this case, and concluded by saying ``such practises are not only condemned by the Laws under which we live, but by that God whom we all ought to fear, and by that Religion which we all profess."

The Rev. Mr. Conolly, was then examined, whose testimony established the whole of the case, as laid down by the Attorney-General. - Mr. Talbot was likewise examined, who also confirmed the preceding testimony. - The defendants declined calling any witnesses, resting their defence by declaring, upon their honour, they had no design of calling Mr. Talbot out, to fight a duel.

The Learned Judge, in a long address to the Jury, directed them principally to consider not what was the simple meaning of the words used on this occasion, but what to the plainest understanding must be understood to be their meaning coupled with all the preceding circumstances of the case.  No provocation, he observed, could justify a challenge; therefore, if they believed a challenge was sent by a written paper, or delivered by word of mouth, it made no difference, they would find their verdict accordingly: he wished the matter could be accommodated.  Here the Attorney-General, for Mr. Talbot, said, if the defendants would make oath that they did not mean either to deliver a challenge, or provoke Mr. Talbot to fight a duel, he would be satisfied.  This they refused to do.  The case then went to the Jury, who twice returned to the Court, saying they could not agree, nor were they likely to agree.  The Attorney-General then moved the Court that the Jury might be discharged, which not being agreed to by the defendants, the foreman retired, when, after a consultation of 4 hours, the Jury brought in a verdict of Not Guilty.

Pedder C.J., 23 June 1824

Source: Hobart Town Gazette, 25 June 1824

Rex, on the prosecution of W. Talbot, Esq. v. William Kermode, Esq. and Dr. Hood.

The Attorney-General moved for a  new trial, on the following grounds, viz. - That the verdict of not guilty which had been returned, was contrary to the evidence, and that the Jury had been misdirected.

The Learned Judge, after remarking the peculiar circumstances which alone, in his opinion, justified a nenewed [sic] risk to an accused party, after he had once been acquitted, was pleased to grant a Rule Nisi, returnable on the first day of next Term, for the Gentlemen who had been defendants in this case, or their Counsel, to shew cause why a new trial should not be granted.

``On Friday last, Mr. Joseph Dixon and Mr. John Grant, who are Gentlemen well known, and equally respected, were tried on an Information filed by His Majesty's Attorney-General, at the instance of Mr. Thomas Atkinson, for having striven to provoke him to fight a duel with the said Mr. Dixon.  The evidence was satisfactory, and notwithstanding a brilliant harangue from Mr. Solicitor Dawes, on behalf of Mr. Grant, the defendants were found - Guilty.

``We thus briefly report the above, not only because we find that the least said on such subjects is soonest mended, but also because they are in no way calculated either to please he immediate parties, or edify the Public."