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Colonial Cases

Lochheed v. French and Grant, 1813


Lochheed v. French and Grant

Source: The Times, 4 October, 1813

  Mr. Keane stated the case. He said this was an action brought against the defendants by his client, for forcibly turning him out of his dwelling-house. The defendants had put no declaration on the record, but pleaded the general issue. The facts were these:- The plaintiff was called from Trinidad, by the late Dr. Anderson, to take the charge of His Majesty's Botanic Garden in St. Vincent's. and recommended by him as his successor. Having twice come over for that purpose, as long as his duty in Trinidad allowed him, and no appointment having during that time arrived from the War-Office, he was under the necessity of returning to that colony. His warrant having at last arrived, he came to St. Vincent to his charge, which he found occupied by Mr. Grant, one of the defendants, by the appointment of the President, and the approbation of the Governor. As his Excellency Sir Charles Brisbane had, in a letter to the plaintiff, before his leaving Trinidad, declared, that he considered him as the fittest person for such a charge, and as it was public duty of some consequence, he certainly expected that countenance and support which had most invariably been shewn by all former Governors, and by Sir Charles himself, to the establishment and its Superintendent. He was disappointed: his reception was cold and repulsive, and the few attempts which he considered it his duty to make, to oblige or to conciliate, were so received, that he ceased to repeat them, and confined himself entirely to the duty in the garden; but even in this retirement party intrigue overtook him.
  He had allowed the manager of a neighbouring plantation to take away for the copper-holes of the stills, some of the superfluous and useless wood, which he wished the garden clear of, and a domestic to sell some Malacca apples, which were falling from the trees and rotting on the ground. Would it be believed that such ridiculous trifles were carefully stowed in the Vice-royal mind, to be brought forward in dread array against the defendant? The quarrel began by deferring and a refusal to sign the garden accounts, which had been attested as usual; this brought on correspondence, which he should now read to the Court. (Here the Counsel read several notes and letters which had passed on the occasion.)
  "Now, Gentlemen," said he, "you will see the reasons, why this quarrel ripened into such irreconcilable enmity, and was followed up by such unprecedented proceedings. The plaintiff had unfortunately hinted at the depredations made in the garden by cattle, said to belong to his Excellency, whose ranges he had thought it his duty to contract, and had accordingly commenced his labours, by repairing or renewing the fence to the exclusion of such intruders. This was a heinous offence; but there was another still greater.  In a letter to the Secretary at War, he had moreover thought himself bound to mention the old Barrack-ground, its present state, the variety of claims made to it by the Governor, the colony, and others, and the propriety of its being one day at least united to the Botanic-garden. This was a morsel which had, in the mind's eye, been already appropriated to a different purpose, and it was therefore a sort of vice-treason to have made any mention of that ground. What was the consequence? The very first or second day after these communications were made, his Excellency was pleased to call an inspection of the Garden: What the object of that inspection was, may be easily guessed; next day, a meeting of the Privy Council was called, and immediately on it breaking up, it was announced to the plaintiff, that his Excellency had been pleased to suspend him from his office as Superintendent."
  The Learned Counsel was convinced, that this suspension had not the sanction of the Privy Council, any more than the appointment of Mr. Grant to the Garden.  These gentlemen knew too well the extent of power granted by His Majesty's instructions as to the suspension of civilians in the service of Government. A patentee, for instance, can only be mulcted thereby of half his pay. They knew, also, that in the army such proceedings as these against his client could never take place. An officer under arrest loses neither pay, quarters, nor rations, before he is tried by a Court-Martial.
  Here the Learned Counsel thought it necessary to enter into a statement to defend himself from a charge of illiberality. He remarked, as a proof of his moderation, that he had not brought it on for trial when the public indignation was at its zenith, and when any quantum of damages would not have been considered as exorbitant or equivalent. He had allowed time for the burst of surprise and indignation to pass away, and waited till it had settled in the cool composure of sober reason and reflection. With this he might contrast the conduct of the adverse party, their cabals, intrigue, menaces, and epithets of different kinds, applied both to his client and to himself, personally and professionally. These he treated with contempt and derision, and all this "brutun fulmen" had fallen impotent to the earth; and for that, (said the learned Counsel) all this sudden and inexpressionable anger against me? For doing that duty which the oath of my profession binds me to do, - for supporting   liberty, even when the arm of power is raised against her, - for the heinous crime of daring to defend a friendless stranger. But to crown the climax of absurdity and arrogance, this is to be distinguished by the high sounding name of a Government cause - a Government cause indeed! Magni nominis  xiubra! - But the drift of this is palpable enough; it is equally mean and absurd; it is intended to give a grand and awful effect, and, as it were, to throw the robes of royalty over the defence, and at the same time to mark the plaintiff and his counsel as disaffected subjects, to brand them with sedition and rebellion, and what not?  It certainly cannot be the British Government; for the attributes of that are power with wisdom, and justice with mercy.
  Plaintiff was turned out on the 20th. This day happened to be Saturday, and he received orders to have the house empty for Mr. Grant's reception on Monday morning.
  The Lord's day was graciously given him, wherein to remove his family, furniture, books, &c. That day which belongs even to slaves - that day which is to be kept sacred to God, and no works but those of necessity and mercy - had certainly been made a day of necessity to the plaintiff; but his pursuers allowed it as a day of mercy on their part, well might it be said of them, that their tender mercies, like those of the wicked, were cruel. They had provided no retreat for the homeless stranger, but as far as the mandate of "a little brief authority" would go, they might have been obliged to seek such shelter as nature gives to the wild beasts of the field. But it was not so; to the eternal honour of the Inhabitants of St. Vincent, almost every house was opened to them, and every assistance rendered which generous hospitality could bestow.
  The Learned Counsel said, "that once more he took the opportunity of advising Mr. French to take care to get himself indemnified, for that he, for his part, should not suffer the plaintiff to want the benefit of the laws of his country." And, he added, "if there be integrity, honour, delicacy, propriety, justice, or equity, left in those who persuaded the defendant to act as he had done, I hope, I trust, and I am confident, they will feel themselves bound to indemnify him."
  Evidence was then called to prove the act of expulsion. This was done by Constable, whom Mr. French took with him for that purpose, and by Mr. Barber, the assistant in the Garden, who was present at the time it took place. The Manager of the estate adjoining the Garden was also called upon, and gave evidence, that for some firewood which Mr. Lochhead had permitted him to take from the Garden, for the use of said estate, Mr. Lochhead never received or expected, any personal benefit, and that it was jerked up, and carried away by the negroes and cattle of the estate.
   The Counsel then stated, that there he should close his case, unless the Court meant (as he had heard) to insist upon it to the Jury, that the defendant, Mr. French, was acting in his judicial capacity as Magistrate. Of which he now demanded the opinion of the Court.
  The Chief Justice said, "Certainly he should charge the Jury, for then, the action was not against either of the defendants as Magistrate. Nor had either of them justified as such, Mr. French might, under the general issue, from the evidence produced by the plaintiff, choose, and had a right to justify as a Magistrate acting under the authority of Sir Charles Brisbane."
  Then, said the Counsel for the plaintiff, "under this declaration of the Judge, I give in evidence, the notice served on Mr. French as "cautionary," had he chosen to plead his commission as a Justice of the Peace, though I will not hold myself bound by the Record, to consider him bound in any other capacity than that of a private Gentleman."  The notice was as follows:=
  In the Kings Bench and Common Pleas.
  Sir, - Please to take notice, that in one Calendar Month from this date, I shall file a declaration in trespass against you, at the suit of William Lochhead, Esq., for having forcibly turned him out of his dwelling-house, appointed for his residence, as Superintendent of His Majesty's Botanic Gardens of this Island.
H. P. Keane, Counsel and Attorney for Plaintiff.
The Hon. James French, Esq.
March, 1813.

  On the part of the defendants, the Attorney-General rested his defence as to Mr. French, solely, on the informality of the notice. That it was not agreeable to the 24th of George II, requiring, that the name of the plaintiff's attorney should be indorsed thereon, with his place of abode, and the specific cause of action contained therein. He therefore moved a non-suit. As to Mr. Grant, that there was no evidence, but only that of his being present at the expulsion of the plaintiff.
  The Counsel for the plaintiff insisted, that no notice was necessary, in the case, nor any evidence of such notice to the Jury, because the defendant, J. French, had not thought proper to plead a justification as Magistrate, so as to put in on the record, and as he had not been sued in that capacity. He had rested his case solely on the merits and issue, and must therefore be regarded as a private gentleman.
But supposing that notice was necessary, and could be called for in Court as on the record, he shewed from authority "that provided the notice were sufficient to have enabled the defendant to make a tender under the Statute, it was good to every purpose;" and this has been proved to be the case. As to the indorsement, the writing either upon the face, or upon the back of the paper, is equally an endorsement, and the folding of the paper can make no difference.  With respect to the name of the place of abode which the words of the Statute required, a literal compliance with that was proper and necessary in a metropolis such as London, and in any other large city or town; but in other places, where there was no name or designation of the person's residence, it was impossible, and, therefore, the meaning of the statute could never require it. Such was exactly his (the Counsel's) office. It had no name, like many hundreds of others in the West Indies; it was not in any street; it was not even in a town. He was the only person of his name on the Island, and the defendant knew and met with him every day. In every respect, therefore, as far as it possibly could be made applicable, the statute had been fully complied with.
  Only one observation on the intrinsic merits of the case, on the part of the defendants, was brought forward by Mr. Windsor, one of their Counsel. This was that the Botanic Garden, belonging to His Majesty, the Governor, or the King's Representative, had a right to dispossess the plaintiff; and, therefore, in that point of view, Mr. French did nothing improper, in obeying the orders of his Excellency. The plea was, however, overruled.
  The Chief Judge, in his charge to the Jury, stated, that the informality of the notice, and its not being literally conformable to the Act of Geo. II, above mentioned, was a matter not to be gotten over.  He added, "the Act of Parliament is exact and peremptory; and you, Gentlemen of the Jury, cannot but find for the defendants. You must do so. When I make use of the word must, I hope you will understand the sense in which I use it - not that you are under an uncontrollable necessity; but only I cannot see how you can do otherwise than find for the defendants.
  The Jury retired about two hours; and then, to the great satisfaction of a crowded Court, returned a verdict for the plaintiff - Damages, Seven Hundred and Fifty Pounds.
  At the instance of the defendants' Counsel, the Judges have since granted a new trial.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School