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Decisions of the Superior Courts of New South Wales, 1788-1899

Minor Port Phillip Cases, 1841

Supreme Court of New South Wales, Port Phillip

Willis J.

The Port Phillip Herald, 16 April 1841

SUPREME COURT -CRIMINAL SIDE.

Monday.

Henry Watson, was indicted for an assault with intent, &c., upon the person of a child of the age of seven years, named Liardet, daughter of Mr. Liardet, of the Beach.

There can be little doubt, but for the tender age of the child, who could not understand the nature of the offence brought forward, that the charge would have been brought home to the miscreant, and that an exemplary punishment would have followed. His Honor himself, felt morally certain of the fellow's guilt. We cannot pollute our columns with details so disgusting. The prisoner was acquitted and discharged.

WEDNESDAY.

His Honor Judge Willis having taken his seat, James Brown, Jeremiah Murphy, John Drumgold, and William Wayland, convicted during the present sitting of the Court, were brought to the bar, when His Honor, previous to passing sentence, addressed them as follows:-

"You have respectively been convicted of larceny or theft. You, James Brown, of theft from your masters, which greatly aggravates your offence. Before I pronounce that sentence upon you, which the law authorises me to award, I shall state, (or rather repeat, for I have mentioned it already elsewhere,) the view which I take respecting crime and punishment. In the infliction of punishment, true humanity requires all that is useless or unnecessarily severe, to be avoided. I say, true humanity, because there unfortunately exists a spurious humanity, a weak tenderness, which manifests in undeserved sympathy for the guilty, and which is as practically noxious as the former is beneficial. The same action may be at once a sin before God, and a crime against society; it may at once be an act of moral turpitude and an act calling for legal punishment, on the ground of political expediency. But in a moral point of view, these temptations to commit an offence, is rather an extenuation of the sin of the offender; yet the rule on which ever wise legislature acts, (as the case of you, James Brown, of stealing the property of your masters, necessarily exposed to you, and in fact confided to your care,) the rule I say is, that the stronger the temptation, the greater must be the punishment in order to counterbalance the temptation. But even the temptation to commit an offence does not add intrinsically to its heinousness. I may notice here, what all will admit in theory to be erroneous, but which, nevertheless, not unfrequently influences the mind of the unthinking; namely (that retribution, or the infliction of vengeance on the guilty is clearly out of man's province-vengeance belongs not to us. The end or final cause of human punishment, is not to exact atonement, or expiation for the crime committed, (for that must be left to the Supreme Being) but as a precaution against, and prevention of future offences of the same kind; or in other words, punishment is not for the sake of Retribution, but for the sake of Prevention-we punish a transgressor, not because he has transgressed, but that others by his example may be deterred from disturbing society. We punish a " wilful and malicious offender, " not on account of his offence being more detrimental, than that of one, who offends accidentally, but because wilful acts are the only ones that can be prevented by the fear of punishment. In short, we punish a criminal on the very same principle that we extinguish a conflagration, (namely,) to prevent its spreading, or as we destroy a mad-dog, that his bite may not communicate infection. We seek to check the example of crime, by exhibiting an example of terror. The sense of insecurity produced by every crime that is committed, is its worst result, because, uneasiness or distress of mind, from perpetual apprehension, though a less evil to the party suffering, than the actual occurrence, is an evil which extends to many thousands. Therefore, there is more humanity in the protection of the unoffending by preventing crime, so far as it can be done by the denunciation and infliction of punishment, than by lavishing sympathy on the violators of the law. This protection cannot be accomplished by mere denunciation; it must be accomplished by the certainty, and terror of punishment. Wherefore, to protect masters from the treachery of servants, and to defend society from the frequency at least of theft, if not to eradicate it altogether, by the example of punishment, I feel it my duty to sentence you, James Brown, found guilty of stealing the property of your masters, to be transported according to law, for the term of fourteen years, and that you Jeremiah Murphy, John Drumgold, and William Wayland respectively, found guilty of simple larceny, be each of you, transported according to law for the term of seven years. "And I hope," added His Honor, "the punishment you will receive will have a salutary effect on others, and society not be plagued with such pests in future."

The Criminal Court, for the trial of the Geelong cases was then adjourned until Monday, 26th inst.

CIVIL SIDE.

Thursday, 15th April, 1841

This being the first day of Term, His Honor Judge Willis took his seat, to entertain motions and hear issues that might have been set down for trial. The result was motions- nil -causes- nil. His Honor remarked, that it would be useless to come down to the Court from day to day for the purpose of adjournment; and it requiring four days before undefended causes could be set down for trial, the Court would stand adjourned until Tuesday next, when he would come down, and if there was then no business the Court would stand further adjourned. An application in Equity would of course be entertained at any time, the Court of Chancery being always open for the obtaining Injunction, &c. The Court was then adjourned until Tuesday next, at Ten o'clock. Upon the rising of the Court, His Honor remarked, that he was glad to see the inhabitants of the District so well disposed towards each other. (The Bar looked grim at His Honor's remark)-Reporter.

 

Port Phillip Herald 27 April 1841

SUPREME COURT - CIVIL SIDE

Yesterday was the day to which the civil sittings were adjourned. Not a single case was set down for trial, nor any motions to be made to the Court. The adjournment was until Thursday, the day set apart for Jury cases, but no Jury has been applied for. There are a few undefended causes set down for Thursday, respecting which his Honor remarked, that the 29th was the day for hearing causes in equity, but supposing that had been forgotten in this early formation of the Court, he would take the cases as set down.

SUPREME COURT - CRIMINAL SIDE.

MONDAY, 26th 1844

Online as R. v. Maxwell, 1841

Online as R. v. Gemmell, 1841

Patrick Kraton was discharged, the Crown Prosecutor not being able to substantiate the case.

William Alexander Whallen, was indicted for assaulting Elizabeth Garman at Geelong, on the 1 st March.

Prosecutrix was sitting upon a bank, waiting the return of her mother, who had gone to visit another married daughter, when prisoner came up and made her some infamous proposals, which were resisted, on which prisoner pulled out a pistol, subsequently found to be loaded, and threatened to blow out her brains, but she could not swear that he pointed it at her. The prisoner was found guilty and sentenced to be imprisoned in her Magesty's Gaol at Melbourne for twelve months, and kept to hard labour. Mr. Barry defended the prisoner.

John M Carty, alias John Kiddy, alias John Davis, was indicted for stealing a mare, the property of Joseph Gardner Mack at Melbourne, on the 19th April.

Prisoner was found riding the mare in question, which had been stolen from the Government Paddock, and upon being called on to account for possession, he stated that the mare was his property, and had been stolen from him two years before at the Murrumbidgie, the following morning however he called on Mr Wright the chief constable and said he was a foolish fellow to be led into it by others. Guilty, to be transported for 15 years:

Online as R. v. Agnew, 1841

William Riley was indicted for stealing a gold watch and two gold seals, the property of Henry Munro, at Melbourne, on the 10th March. The prisoner was ostler to Mr Liardet, on the bench (or is it beach?), from which house the property was stolen. It was found upon him, when he said he found it upon the bench (or is it beach?). Guilty. To be transported for seven years.

Alexander Wilson was indicted for forging a cheque upon the Union Bank of Australia for £20, with intent to defraud William Highett and others, at Melbourne, on the 20th February. The second count charged him with uttering, with intent to defraud William Highett. There were two other counts for larceny.

Prisoner went to the Union Bank of Australia, accompanied by Mr Lake, and upon the counter of that establishment he drew the cheque for the prisoner who put his mark to it in the name of Daniel Dudley and the money was paid to him, by Mr Griesly the cashier. The Jury found the prisoner guilty of the second count, after a long consultation. Death Recorded, and his honor would recommend it to be mitigated to transportation for life.

Online as R. v. Hogan, 1841

 

PORT PHILLIP PATRIOT

AND MELBOURNE ADVERTISER.

MONDAY, APRIL 18, 1841.

SUPREME COURT.---CRIMINAL SIDE.

Online as Address to Jury, 1841

 

PORT PHILLIP PATRIOT

AND MELBOURNE ADVERTISER.

APRIL 18, 1841.

SUPREME COURT.---CRIMINAL SIDE.

BEFORE HIS HONOR, THE RESIDENT JUDGE.

JAMES HALL was indicted for stealing a silver watch, value £ 1, the property of Henry George Harrington, at Melbourne, on the 20th of September last. The prisoner pleaded not guilty.

From the evidence of the prosecutor it appeared that the prisoner had been living with him for about six weeks from the 24th June until the 29th August, when he requested the prisoner to take his (prosecutor's) watch to the Flag-staff to get it regulated. The prisoner returned and put the watch in its usual place on the mantel-shelf. On the following Tuesday the prisoner left the prosecutor's house, and immediately after the watch was missed. Mr. Bunce deposed that he saw the prisoner with the watch in his possession; he stated that the prosecutor had given him the watch to get it regulated, and that he had given him permission to wear it. The prisoner took the watch to Messrs. Henley and Blair, the auctioneers, and stated that he was hard up and wanted a few shillings. Mr. Blair lent the prisoner fifteen shillings, who left the watch as security, stating that he would call and pay the amount on the following Monday. The prisoner never returned to the house of the prosecutor, who obtained a warrant for his apprehension.

The prisoner in his defence asserted that the prosecutor had requested him to wear the watch as it was keeping very bad time, declaring his innocence of taking it with a felonious intent. Mr. Wright, the ex-chief constable, spoke favorably of the prisoner's character.

His Honor, in charging the Jury, observed that in order to constitute the offence of larceny, there must be a felonious taking and conveying away, and the question for them under all the circumstances of the case was to say whether the prisoner feloniously took the watch from the prosecutor's house.

The Jury, without retiring, pronounced a verdict of not guilty. Discharged.

 

PORT PHILLIP PATRIOT

AND MELBOURNE ADVERTISER.

APRIL 18, 1841.

SUPREME COURT.---CRIMINAL SIDE.

BEFORE HIS HONOR, THE RESIDENT JUDGE.

WILLIAM MACDONALD, was indicted for stealing one bottle of rose water, seven razor strops, two razors, two hundred segars, &c., the property of Henry Seymour Milbourne, at Melbourne, on the 10th instant. The prisoner pleaded guilty, and was immediately called up for judgment.

His Honor, in passing sentence said, it was quite necessary a stop should be put to such proceedings, and he hoped that the severe sentence he was about to pass upon the prisoner would deter others from committing the same crime. The sentence of the Court was, that he be imprisoned in her Majesty's gaol at Melbourne, and kept to hard labour for the space of twelve months.

 

PORT PHILLIP PATRIOT

AND MELBOURNE ADVERTISER.

APRIL 18, 1841.

SUPREME COURT.---CRIMINAL SIDE.

BEFORE HIS HONOR, THE RESIDENT JUDGE.

Online as R. v. Jones, 1841

PORT PHILLIP PATRIOT

AND MELBOURNE ADVERTISER.

APRIL 18, 1841.

SUPREME COURT.---CRIMINAL SIDE.

BEFORE HIS HONOR, THE RESIDENT JUDGE.

Mr. Croke moved that the Hon. Erskine Murray, (son of Baron Elibank, a Scottish Peer,) an advocate of the Scottish Bar, be admitted a Member of the Port Phillip Bar. The application was made upon the usual certificate.

Judge Willis, in acceding to the admission of Mr. Murray, said he would take this opportunity of observing, that he hoped no gentleman of the Port Phillip Bar would enter into any sort of business or trade, which in England would subject him to the Bankruptcy Laws. Such he understood to have been the practice in some instances in the colony. His Honor said he had great pleasure in admitting Mr. Murray, and he had no doubt he would prove an acquisition to the bar.

The Court then adjourned for half an hour.

 

PORT PHILLIP PATRIOT

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APRIL 18, 1841.

SUPREME COURT.---CRIMINAL SIDE.

BEFORE HIS HONOR, THE RESIDENT JUDGE.

Upon the Court resuming its sittings---

WILLIAM CALLAGHAN, DAVID MAHONY, JOHN COCKERILL, and JOHN WARD, were placed at the bar, having been committed by the Geelong Bench, to take their trials for conspiracy.

Mr. Croke said that in consequence of the absence of two material witnesses he did not think he should be able to support the present charge against the prisoners, and he should therefore abandon the prosecution altogether. The prisoners were then admonished and discharged.

 

PORT PHILLIP PATRIOT

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APRIL 18, 1841.

SUPREME COURT.---CRIMINAL SIDE.

BEFORE HIS HONOR, THE RESIDENT JUDGE.

WILLIAM M'CAULINE BANNISTER, was indicted for forging and uttering a cheque purporting to have been drawn by John Bunce, in favour of Thomas Lee, on the Union Bank for £ 20, with intent to defraud William Highett and others. The information contained six counts.

There being no evidence to prove the forging or uttering, the prisoner was acquitted. Mr. Barry conducted the defence.

The Court then adjourned until the following morning (Saturday) at 10 o'clock.

 

PORT PHILLIP PATRIOT

AND MELBOURNE ADVERTISER.

  MONDAY, APRIL 18, 1841.

SUPREME COURT.---CRIMINAL SIDE.

BEFORE HIS HONOR, THE RESIDENT JUDGE.

Online as R. v. Jones, 1841

 

PORT PHILLIP PATRIOT

AND MELBOURNE ADVERTISER.

APRIL 18, 1841.

SUPREME COURT.---CRIMINAL SIDE.

BEFORE HIS HONOR, THE RESIDENT JUDGE.

Online as R. v. Bonjon, 1841

 

PORT PHILLIP PATRIOT

AND MELBOURNE ADVERTISER.

APRIL 18, 1841.

SUPREME COURT.---CRIMINAL SIDE.

BEFORE HIS HONOR, THE RESIDENT JUDGE.

JOHN DOUGLASS and JOHN NEVILLE, who had been committed at Geelong to take their trial for larceny, were discharged by proclamation, the Crown Prosecutor not intending to prosecute.

The Court then adjourned sine die.

 

PORT PHILLIP PATRIOT

AND MELBOURNE ADVERTISER.

  THURSDAY, APRIL 29, 1841.

We will not be at the trouble of disputing with friend Murray as to the quality of the water or the nature of the soil of Port Phillip, for it is perfectly unnecessary, but we will just refer him to the Supreme Court report of to-day, and of many days previously, that he may learn, that so far from the Judge hesitating to open the Supreme Court, he has opened it, and been in attendance from day to day for weeks past, and that up to the present time, he has not been called upon to try a single case, either defended or undefended. Honest Lathrop may, therefore, rest assured that his fears are as groundless as his statements are false.

 

PORT PHILLIP PATRIOT

AND MELBOURNE ADVERTISER.

THURSDAY, APRIL 29, 1841.

SUPREME COURT. - CIVIL SIDE.

Monday, 26th April.---Before His Honor the Resident Judge.

  The Civil Sittings of this Court, opened this day pursuant to adjournment, but no case appeared on the list, neither was there any motion to be made, His Honor observed, that Thursday (to-morrow) had been set apart for the hearing of Equity causes, which he supposed had been forgotten at this early period in the existence of the court, but as a few undefended cases had been set down for Thursday, he would take them on that day.

 

PORT PHILLIP PATRIOT

AND MELBOURNE ADVERTISER. 

THURSDAY, APRIL 29, 1841.

SUPREME COURT. - CRIMINAL SIDE.

Monday, 26th April.---Before His Honor the Resident Judge.

Online as R. v. Maxwell, 1841

 

PORT PHILLIP PATRIOT

AND MELBOURNE ADVERTISER.

  THURSDAY, APRIL 29, 1841.

SUPREME COURT. - CIVIL SIDE.

Monday, 26th April.---Before His Honor the Resident Judge.

Online as R. v. Gemmell, 1841

 

PORT PHILLIP PATRIOT

AND MELBOURNE ADVERTISER.

  THURSDAY, APRIL 29, 1841.

SUPREME COURT. - CIVIL SIDE.

Monday, 26th April.---Before His Honor the Resident Judge.

Online as R. v. Hogan, 1841

 

PORT PHILLIP PATRIOT

AND MELBOURNE ADVERTISER.

  THURSDAY, APRIL 29, 1841.

SUPREME COURT. - CIVIL SIDE.

Monday, 26th April.---Before His Honor the Resident Judge.

William Alexander Whallen, of Geelong, labourer, was indicted for assaulting Elizabeth Guinan, on the 1st March last, with intent, &c. The prosecutrix said, she was sitting on a bank, waiting for her mother, when the prisoner came up, and made some very unbecoming proposals to her, which she resisted; on which he pulled out a pistol, which was subsequently found to have been loaded, and threatened to blow out her brains; witness could not swear whether the prisoner pointed the pistol at her. Guilty. Sentence, twelve months imprisonment in Her Majesty's gaol at Melbourne.

 

PORT PHILLIP PATRIOT

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  THURSDAY, APRIL 29, 1841.

SUPREME COURT. - CIVIL SIDE.

Monday, 26th April.---Before His Honor the Resident Judge.

John M'Carthy, alias John Kiddy, alias John Davies, was indicted for stealing a mare, the property of John Gardiner Mack of Geelong. Full particulars of this case have already appeared before the public. Guilty. To be transported for fifteen years.

 

PORT PHILLIP PATRIOT

AND MELBOURNE ADVERTISER.

  THURSDAY, APRIL 29, 1841.

SUPREME COURT. - CIVIL SIDE.

Monday, 26th April.---Before His Honor the Resident Judge.

Online as R. v. Agnew, 1841

 

PORT PHILLIP PATRIOT

AND MELBOURNE ADVERTISER.

  THURSDAY, APRIL 29, 1841.

SUPREME COURT. - CIVIL SIDE.

Monday, 26th April.---Before His Honor the Resident Judge.

William Riley was indicted for stealing a gold watch and two gold seals, the property of Henry Munro, at the Marine Hotel on the Beach, on the 10th March last. Guilty. To be transported for seven years.

 

PORT PHILLIP PATRIOT

AND MELBOURNE ADVERTISER.

THURSDAY, APRIL 29, 1841.

SUPREME COURT. - CIVIL SIDE.

Monday, 26th April.---Before His Honor the Resident Judge.

Alexander Wilson stood indicted for forging a cheque upon the Union Bank of Australia, with intent to defraud William Highett and others his partners, at Melbourne, on the 20th of February. The information contained three counts. The prisoner, it appeared in evidence, went to the bank in question accompanied by Mr. Lake of the Ship Inn, who wrote the cheque and the prisoner affixed his mark thereto in the name of Daniel Dudley; the prisoner received the money and went away. The Jury after a long consultation found the prisoner guilty on the second count. Death recorded.

 

PORT PHILLIP PATRIOT

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  THURSDAY, APRIL 29, 1841.

SUPREME COURT. - CIVIL SIDE.

Monday, 26th April.---Before His Honor the Resident Judge.

Patrick Keaton was discharged by proclamation, no information having been filed against him.

 

PORT PHILLIP PATRIOT

AND MELBOURNE ADVERTISER.

  THURSDAY, APRIL 29, 1841.

SUPREME COURT. - CIVIL SIDE.

Monday, 26th April.---Before His Honor the Resident Judge.

TUESDAY, 27th.

On His Honor taking his seat this morning, the Crown Prosecutor said that on looking over the calendar he regretted to find there was no other case at present ready for trial.

His Honor remarked that it was a great hardship to keep men in gaol such a length of time, and as the present was a session of gaol delivery as well as of oyer and terminer, he was bound to see the gaol delivered.

The man named John Payne, who has been committed for murder since the 30th March, 1840, was then placed at the bar and informed that his trial would come on on the 15th May, and if no information was then on the file he would be discharged.

The following prisoners were then discharged by proclamation:---George Thomas, Richard Parsons, Samuel Thomas, alias Brown, Catherine Bradley, and two Aboriginal Natives.

The court was then adjourned until the 15th of May.

 

The Port Phillip Herald, 21 May 1841

SUPREME COURT.

Criminal Side.-Wednesday 19th May, 1841.

Online as R. v. Wood, 1841

In the case of George White, (committed under the Coroner's warrant, and who by the calendar was charged with murder,) the Crown Prosecutor said he was not prepared to bring the case forward during the present sessions; some papers which had been handed to him by his Honor would cause the necessary delay; what the particulars were he could not divulge; he would consent to White going at large, upon entering into sureties himself in £200, and two in £100 each, to appear when called upon. Judge Willis said, the papers had been handed to him the previous morning by Mr. Simpson; he was not aware of their contents, and had handed them to Mr. Croker; of course Mr. Barry who was retained in the case would have an opportunity of seeing the papers which had been received from Van Diemen's Land, and related to the deceased man, Kabble. The required sureties having been entered into, White was allowed to go at large.

Thomas Watson -Was indicted for a larceny, in stealing a saw, a plane, and a pair of compasses, the property of Timothy Lane, at Melbourne on the 22nd April.

This probably was about the most extraordinary case that ever came into a Court of Justice. On the night of the day laid in the information, prisoner went to the Melbourne watch-house, having a saw in one hand and a plane in the other; he said, he brought them there, because he supposed them to have been stolen; he refused to give his name, saying he lived at an eating house in Little Flinders-street, where he was well known. Upon the watch-house keeper proceeding to lock him up, he said that the tools had been stolen by his mate with whom he had lived for a fortnight, but did not know his name; he also said that he thought the tools had been stolen from a building in the course of erection at the corner of Little Flinders-street, and the market place, which turned out to be the fact, and that they were the property of one Timothy Lane, who had stowed them away in the shavings in the buildings.

Mr. Brewster who was assigned by Judge Willis for the defence, in addressing the Jury said, the conduct of the prisoner had been most laudable, he brought the property to the watch-house keeper, for which he was put in the watch-house himself; that was the whole gist of the offence. He considered the prisoner had been treated harshly.

His Honor would not say one word to the Jury upon the case, but leave it to them upon the evidence adduced. Without a moment's hesitation, the Jury found the prisoner not guilty. His Honor said, that he thought Watson had been the means of the silly carpenter regaining his tools which had been stolen. He thought the man instead of being indicted for a larceny, deserved praise.

John M'Gill -Was indicted for a larceny in stealing a coat, value 10s. the property of James Simeon, at Melbourne on the 21st March.

Prisoner walked into Simeon's Shop, unhooked the coat from a nail, and tried it on, as though he intended to purchase, instead of which he walked off, was subsequently apprehended and after a short time gave it up.

There was considerable difficulty in proving the identity of the coat, and his Honor after an inspection thought it resembled the Sheriff's! Simeon however swore, that he put his name in the lining of the coat when at the Police office, and that was the name produced. Mr. Barry who was assigned in this case, in addressing the Jury said, that after the identity of the coat, he left the case with them-Guilty. To be imprisoned in the gaol at Melbourne, and kept to hard labour for two years.

Francis Lamb was indicted for receiving a mare, value £50, the property of Joseph Gardner Mack, well knowing the same to have been feloniously stolen by John M'Carthy, at Melbourne on the 13th April.

Upon the Jury being impannelled, Mr. J. P. Fawkner was challenged by the prisoner. Mr. F. said, as he left the box, that in this case he was proud of the distinction. Mr. Cunningham, who, with Mr.Brewster, defended the prisoner, said he was entitled to the challenge without assigning any reason; but it was in consequence of Mr. Fawkner's connection with a certain Journal in which comments had been made upon this case that the objection was made.

Mr. H. F. Gurner, the Registrar, proved the original conviction of John M'Carthy for stealing the mare set forth in the information.

John Ewart of Elizabeth Street, Livery Stable keeper, being put in the witness box, upon the motion of Mr. Cunningham, was in the first instance merely sworn on the voire dire, when he stated that some time since he made a bet with a person named Rowe of one pound. Rowe betted that the case would never come on, if it did, Lamb would be discharged. The money was put in the hands of Graham, the landlord of the Edinburgh Castle ; the following morning witness told him, Graham, that he should pay forfeit, and he might do what he liked with the pound.

His Honor was glad the objection had been taken, the witness having made a bet as to the result of the case, it would be for the consideration of the Jury what weight they would give to his testimony. He considered his testimony admissible.

The witness was then sworn in the case, but could not in any way bring the charge home to the prisoner.

His Honor told the jury that he did not consider the case made out in the slightest manner. Where was the guilty knowledge? That was the essence of the charge. The jury returned a verdict of not guilty. The judge then cautioned Lamb as to his future conduct, and the company he kept.

Mr. Croker said, there were three men in the Jail of Portland Bay, who could not be forwarded in consequence of the want of constabulary, they would not therefore be tried during the present sessions. His Honor said, he would not have the prisoners kept there ad infinitum, if there were not constables to bring them to Melbourne, special constables must be sworn in and paid for by the colony, this could be easily effected. The court was then adjourned sine die.

 

The Port Phillip Herald 25th May 1841

SUPREME COURT - CIVIL SIDE

SATURDAY, 22nd MAY

In Banco Reginæ.

His Honor Judge Willis, having taken his seat, remarked to Mr Brewster that the men convicted at the January Quarter Sessions, had been all pardoned by His Excellency, Sir George Gipps, upon his recommendation; their conviction in his, Judge Willis' opinion being illegal. The Aborigine, Tarroke mun-nin, who had been sentenced to ten years transportation had been also pardoned, released from confinement and handed over to the custody of one of the Protectors.

The Registrar brought up the conviction of Henry Agnew, sentenced to pay a penalty of £50 for assault. Execution was ordered to go; also, in the case of John Roach convicted of assault and sentenced to pay a fine of £5, execution was ordered to issue.

On the Ecclesiastical side of the Court, Mr Brewster moved, that Probate with the will annexed of Gray George, deceased, be granted to P.E. Leadbeater, sole executor. The application was made on affidavits of Messrs Salmon and Graham, subscribing witnesses.

The Registrar said, that he understood the Will had been made over a bottle of Wine, and in a joke.

Judge Willis would not affix the seal of the Court to anything to which suspicion might be attached.

Mr Gunner would have entered a caveat, but he found all the property would be absorbed in satisfying the claims of the creditors, he therefore thought it would be injustice to them to incur the costs of the caveat.

His Honor remarked that the first expenses paid out of an estate, were the funeral and testamentary charges. Mr Gurner would enter a caveat, and then the whole matter would be gone into. He wished to know who the sole executor, Leadbeater was.

Mr Meek replied that he was formerly a Clerk in his employ.

His Honor remembered him, he was a man when a Jury in Sydney would not believe upon his oath; at least, he swore to a party being horse-whipped, and the Jury returned a verdict for the defendant. The case would stand over until Tuesday next.

Powell v Bailey - In these cases, Mr Croke moved for a Common Jury.

His Honor wished to know whether the difference of expense between a Jury and two Assessors had been taken into consideration. He thought the case might be tried by two Assessors.

Mr Croke thought himself, that Assessors would do as well as a Jury. The action was upon a Bill of Exchange for £154.

Judge Willis remarked that there would be a certain inconvenience to twelve inhabitants of the place, when there was no necessity for it. Mr Croke, however, would use his own discretion; if he required a Jury he should have it, for they must attend. In the most important cases, and he had tried some of the most important in the middle district, he had always found the verdict of Assessors as satisfactory as those of any Jury. When the case was tried by Assessors, it was the same as a Jury, for he never interfered with them, except they could not agree, which had only once occurred in the course of his professional career. He thought two merchants were as well qualified as twelve, to decide a case upon a Bill of Exchange. They would also obtain judgment earlier in the term, as Assessor cases were the first tried.

Mr Croke withdrew his application.

Online as In re O'Sullivan v. Marchant, 1841.

MONDAY.

Before Judge Willis, and Messrs. Were and Ryrie, Justices, Assessors.

Overton v Graham

Overton v Peppait

Sullivan v George Stevens

Taylor v Muir

Frost v T Walton

The above were the whole of the causes upon the list for trial. Neither Attorney nor Counsel were in attendance to conduct the causes, and the whole by direction of his Honor were struck out of the paper. Mr Attorney Leigh attempted to address the Bench upon some of the causes in which he was concerned, but Judge Willis said, he could not, nor would not hear him; if he wished to address the Court it must be by Counsel. In the case of Taylor v Muir, the plaintiff jumped into the witness box and informed the Bench that he had employed Mr Thurlow, who was not present. His Honor replied, that as he had employed an Attorney he could not hear him, if he was damnified by the conduct of Mr Thurlow he could bring an action against him.

For the first half hour after opening the Court, neither Assessors, Counsel, nor Attorneys made their appearance, Mr Croke the Crown Prosecutor being the sole representative of the bar. His Honor said, that it was lucky for the bar the Assessors were not in attendance, or he should have ordered all the cases to have been struck out of the paper. In future, he should adopt the course he had pursued in Sydney to ensure punctuality; if parties were not prepared to the minute, the cases were struck out; it was astonishing what a good effect it had.

Mr Croke intimated that it was the Queen's Birthday.

 

PORT PHILLIP PATRIOT

AND MELBOURNE ADVERTISER.

THURSDAY, 27th MAY, 1841.

SUPREME COURT.---CIVIL SIDE.

(Monday, 24th May.---before his Honor the Resident Judge.)

This day being appointed for hearing undefended causes, His Honor took his seat as usual, at ten o'clock, at which time there were neither assessors nor attornies present, and the only representative of the bar was Mr. Croke.

His Honor enquired if there was any constable or messenger present that could go to the Club, and request the attendance of Dr. Martin and some other J.P. to sit with him. After some delay, the crier of the Court was despatched for that purpose, as no other person could be found. The learned Judge enquired of the Deputy-Registrar who were the attornies in the cases set down for hearing.

Mr. Gurner replied, Messrs. Thurlow and Legh.

Judge Willis: it is very fortunate for them the Assessors are not here, as I should certainly strike the whole of the cases out of the paper.

His Honor observed, that this was not the first time he had done so, when in Sydney, if the parties were not in attendance at ten o'clock precisely; and although the attornies complained very much in the first instance, they soon found the good effects of being regular, and on the day that I presided, (continued His Honor,) the attornies called it "Regularity Morning."

Messrs. Were and Ryrie, J.P's. having entered the Court, and taken their seats as Assessors,

The following cases were struck out of the paper, as there was no barrister to conduct them.

Overton v. Graham.

Same v. Pappait.

Sullivan v. Stevens.

Taylor v. Muir.

Frost v. Walton.

Mr. Taylor, the plaintiff in one of the cases, said Mr. Thurlow, had been retained by him, and ought to have been present.

Judge Willis: if you have sustained any injury through the neglect of your attorney, you can bring an action against him, and you will recover damages.

The Court adjourned until Saturday next.

 

PORT PHILLIP PATRIOT

AND MELBOURNE ADVERTISER.

MONDAY, 31st MAY, 1841.

SUPREME COURT.---CIVIL SIDE.

Saturday, 29th May.---before his Honor the Resident Judge.)

On the opening of the Court, which sat for the purpose of hearing motions, Mr. Le Souef, the Assistant Protector of Aborigines, was sworn in as a magistrate of the territory.

Messiter v. Brodie.--- Mr. Croke applied for a common jury in this case.---Granted.

On the Ecclesiastical Side of the Court.

In the matter of Charles Grey George, deceased, Mr. Brewster said that it would be, no doubt, in the recollection of His Honor, that he had, on the first day of the present term, applied to the Court for probate of the will on behalf of Mr. Leadbeater, the sole executor to the will; the motion was postponed on that occasion, in order that further enquiries should be made, he now appeared to renew the application.

His Honor said there had been a caveat entered.

Mr. Brewster.---Perhaps your Honor will grant a probate in the mean time to the executor, who can collect the estate, until the caveat is disposed of.

His Honor said he should direct the Deputy registrar to collect the estate at present; as a caveat had been entered the applicant was not entitled to probate until the matter was decided, and he should require him to prove the will by the attesting witnesses, who must be examined in Court, as he intended to have the case thoroughly sifted.

Mr. Brewster said one of the witnesses had left the colony, and he should not be able to produce him.

Judge Willis.---Then we can issue a commission for him to be examined elsewhere, which will answer the same purpose.---Motion refused.

 

PORT PHILLIP PATRIOT

AND MELBOURNE ADVERTISER.

THURSDAY, 27th MAY, 1841.

SUPREME COURT.---CIVIL SIDE.

Saturday, 29th May.---before his Honor the Resident Judge.)

Graham v. Bourhill and another. ---Mr. Barry, on the part of the defendants, applied for further time to plead, on the ground that the papers had been handed over to Mr. Duerden, who was applying to be admitted an attorney of the Court at that time, for the purpose of defending the case, and on account of that gentleman's application being refused the delay had arisen.

Mr. Brewster opposed the motion on the ground that the defendants were damnified by the act of their attorney.

His Honor said that all that he could do in the matter was, if Mr. Brewster persisted in opposing the present application, to suggest that the parties should arrange the case out of court, because, in the strict letter of the law (continued His honor) Mr. Barry, you have not, in my opinion, a leg to stand upon.

Mr. Barry would with His Honor's permission, read the affidavit on which he grounded his motion. (Affidavit read.)

Judge Willis---Your affidavit states you have a good defence to the action. I should say if you were to pay the costs of the day, plead instanter, and take short notice of trial, the other side would consent.

Mr. Brewster could not consent to the proposition of the learned judge, as he was instructed to say it was understood the defendant was about to leave the colony.

Judge Willis---If you can procure an affidavit to that effect, he can very soon be stopped; perhaps, observed His Honor, as the amount is only £71 17s. 6d., the defendant will pay the amount into court in the course of ten days from this, and that would leave all suspicion of leaving the colony out of the case.

Mr. Barry feared his client could not pay the money into court in that time.

Judge Willis, then I must refuse your motion; when I suggested that the money should be paid into Court to await the issue of the case, I considered it would be a test on your client's sincerity. Cannot this case, continued the learned Judge, to save expence, be referred to arbitration, you then could make your submission a rule of Court, and issue an attachment on the award within a given time. Mr. Brewster said he was instructed to press the case to assessment.

Judge Willis, as I said before I cannot interfere unless the other parties consent. The case is entirely in your hands, Mr. Brewster, and if you persist in opposing Mr. Barry's motion, I have but to refuse the application.---Motion refused.

 

PORT PHILLIP PATRIOT

AND MELBOURNE ADVERTISER.

THURSDAY, 27th MAY, 1841.

SUPREME COURT.---CIVIL SIDE.

Saturday, 29th May.---before his Honor the Resident Judge.)

Brown v. Westwood. ---Mr. Barry moved for leave to enter up judgment as in the case of a nonsuit; as similar application had been made last term, but refused, because the learned counsel had no affidavit to support the motion; the plaintiff had joined issue, but had not set the cause down for trial.

Mr. Brewster opposed the motion, on the plea that all the former proceedings were irregular; the plaintiff had treated the whole case as a nullity; the defendant not appearing until the last day for pleading. The case was very properly set down as a default one, for assessment.

Judge Willis said that by the rule of Court the defendant was bound to appear within a given time, or the rule itself would become a nullity; the necessity of an appearance is that the party shall be before the Court, which at once shews that the persons sued are willing to answer the complaint. I think (continued His Honor) an appearance should have been filed, and as the plaintiff's attorney has sworn that no appearance was entered I am bound to discharge the motion.

Mr. Brewster said as this was the second time they had been forced into Court by the defendant, he would respectfully move that the rule be discharged with costs.

Judge Willis said he should like to see this and the last case settled out of Court, and thereby save great expense and litigation---people had better pay their debts than run up lawyers' bills, although, said His Honor, I do not think the attornies of the Court will thank me for the observation.

Rule discharged, with costs.

His Honor observed, as times were getting much better he should like to see parties afford each other a little more accommodation, and he had no doubt that the gentlemen of the profession would find some difficulty in getting their costs if parties could not pay their original debts.

 

PORT PHILLIP PATRIOT

AND MELBOURNE ADVERTISER.

THURSDAY, 27th MAY, 1841.

SUPREME COURT.---CIVIL SIDE.

Saturday, 29th May.---before his Honor the Resident Judge.)

Pittman v. M'Kenzie.--- Mr. Brewster moved to set aside the judgment obtained in this case last term with costs, on the grounds of irregularity in the proceedings.

This was the case in which His Honor had decided, that the appearance having been filed with the proper officer of the Court, the defendant had complied with the rule of Court.

His Honor observed, he said so last term, and he said so now, there had been a mistake, and he had urged that the case should be settled out of Court; the plaintiff had sworn that no appearance was entered on his searching the Court, and the defendant had sworn that an appearance was filed, and both parties had, through the omission of the clerk in not entering the appearance sworn correctly.

Mr. Barry opposed the motion.

His Honor discharged the motion with costs.

 

PORT PHILLIP PATRIOT

AND MELBOURNE ADVERTISER.

MONDAY, 31st MAY, 1841.

SUPREME COURT.---CIVIL SIDE.

Saturday, 29th May.---before his Honor the Resident Judge.)

In the Insolvent Debtors Court.

 Wright v. Douglass.--- Henry Douglass, surveyor, appeared before the Court to take the benefit of the Insolvent Act; the insolvent was in custody on execution at the suit of Mr. William Wright, and having no opposition entered against his insolvency, was discharged, on swearing to his schedule. Mr. Meek was appointed assignee.

The Court then adjourned until this day.

 

The Port Phillip Herald, 1 June 1841

SUPREME COURT.

Saturday, May 29, (In Banco Regina .)

His Honor, the Resident Judge, J. W. Willis, Esq., having taken his seat-

Mr. Le S¿uff , an assistant Protector of the Aborigines, presented himself before the Bench, when His Honor said, that having got his commission, and seen his name in the Gazette, he would be sworn in as a Magistrate of the Territory, by the Registrar Mr. Gurner, which was accordingly done.

Messitter v. Brodie. -In this case Mr. Croke moved for a common jury upon the usual affidavit.

His Honor wished to know if there was any application to make it special-that was the course, if so intended, after the previous application. If parties were satisfied with a common jury, there would be no occasion for the subsequent motion. Common cases would also be tried before special jury cases.

Mr. Croke had no instructions to make the jury special.

Mr. Brewster said, it would be within the recollection of His Honor, that upon the last sitting of the Court, he moved for probate of the will of Charles Grey George, deceased.

His Honor.-A caveat has been entered by the Registrar, which is the usual course when any doubt arise as to the validity of a will. This was said to have been made in a joke over a bottle of wine.

Mr. Brewster wished to know if probate could not be granted to the executor in the interim.

His Honor.-What Mr. Brewster? Grant probate in the interim, when a caveat has been entered! I have ordered the Registrar to collect-grant probate in the interim, I never heard of such a thing. The Registrar will collect, and after discharging the claims upon the estate will hand the balance over to the executor if he is entitled to probate under the will.

Mr. Brewster was of opinion the executor could administer under the will without reference to probate.

His Honor.-Under the will Mr. Brewster, what are you thinking about?

Mr. Brewster through he was entitled to administer under the will without reference to the probate. The right he claimed was not derived from probate, but through the will.

His Honor.-Did ever any one hear of an executor doing anything under a will until probate was granted? The Ecclesiastical Court took care by probate or some worthy person being appointed, that an estate should be duly administered, when there was no executor; and until they had decided to grant probate a receiver was appointed; which course he should adopt in this case. A caveat had been entered, therefore the executor could not administer nor obtain probate; until he came into Court with his witnesses, and proved the due execution of the will, a circumstance that he should most strictly inquire into, probate would not be granted. The arguments used by Mr. Brewster, were so totally adverse to every principle of law, that he never heard anything like them. There was the case of the two orphans, an improper will had been made, appointing Mr. Thomson and Mr. Somebody else, two highly respectable gentlemen, as executors. In that case he could not grant probate, but was happy to appoint them administrators, upon the recommendation of the deceased. Mr. Montgomery, who was in the case, would have the children in Court, and he, Judge Willis, would appoint guardians. He then directed the Registrar to take no fees, and in this case, where the property was so small, amounting to only three hundred pounds, they could proceed with petition instead of bill. The application of Mr. Brewster could not be entertained.

Grahame v. Bourhill and ano. -In this case Mr. Barry moved for further time to plead, upon the ground that the papers in the case had been in the first instance placed in the hands of Mr. Duerdin who was then an applicant for admission as an attorney, &c. of the Court. He had been refused admission, and that had caused the delay.

His Honor said, that any gentleman he thought worthy of admission to practice in the Court, he would uphold. Any party who had been refused admission had better not practise, as an attorney, solicitor, or proctor. Of course he could not prevent any one practising as a conveyancer.

Mr. Carrington said, that Mr. Duerdin had been in his office ever since he had been refused admission.

His Honor did not think, that a man going to be an embryo attorney, an egg that was never hatched, could become a bird of that description, was any excuse-" ignorantia non excuse lex. " He did not think the defendants had taken proper precaution; if they chose to go to a person who was not admitted, the fault was theirs.

 

PORT PHILLIP PATRIOT

AND MELBOURNE ADVERTISER.

THURSDAY, 20th JUNE, 1841.

SUPREME COURT.---CRIMINAL SIDE.

(Monday, 17th June.---Before his Honor the Resident Judge.)

Online as R. v. Goodwin and Connock, 1841

 

PORT PHILLIP PATRIOT

AND MELBOURNE ADVERTISER.

THURSDAY, 20th JUNE, 1841.

SUPREME COURT.---CRIMINAL SIDE.

(Monday, 17th June.---Before his Honor the Resident Judge.)

TUESDAY, 18th.

Online as R. v. Scott, 1841.

 

PORT PHILLIP PATRIOT

AND MELBOURNE ADVERTISER.

THURSDAY, 20th JUNE, 1841.

SUPREME COURT.---CRIMINAL SIDE.

(Monday, 17th June.---Before his Honor the Resident Judge.)

TUESDAY, 18TH.

George Robson, who had been in custody for nearly five months, charged with a common assault, was discharged on his own recognizance to appear when called upon to take his trial.

John Roach, late of Portland, labourer, was indicted for an aggravated assault on a constable named Thomas Smith, whilst in the execution of his duty. A second count charged the prisoner with a common assault, on the 27th December, 1840. From the evidence of Smith, (who was the only witness examined) it appeared on the day charged in the information, prosecutor was conveying a drunken man named Jones, to the lock-up, when the prisoner came up and attempted to rescue the prosecutor's prisoner; the constable resisted, and was knocked down by a missile thrown at him by the prisoner; the injuries sustained were so great, that the prosecutor was under medical care for two months. The jury found the prisoner guilty, but recommended him to mercy on account of the length of time he had been in custody.

His Honor said he should certainly take that into consideration, and sentenced the prisoner to be imprisoned in the gaol at Melbourne for one month, and also pay a fine of £5, and remain in custody until it was paid.

Online as R. v. Jenkins and others, 1841.

John Thompson and Robert Gosling, were indicted for stealing a quantity of rope, value £1 10s., the property of F. Manton and others, at Melbourne the 14th May, 1841.

The particulars of this case appeared in our last number. The prisoners were found guilty, and sentenced to be transported for seven years.

John Caton was indicted for an assault on constable Mooney whilst in the execution of his duty at Melbourne, on the 7th day of May.

The particulars of this case have already appeared. Guilty. Sentenced to be confined in Her Majesty's gaol at Melbourne for twelve calendar months.

 

PORT PHILLIP PATRIOT

AND MELBOURNE ADVERTISER.

MONDAY, 10th JUNE, 1841.

SUPREME COURT.---CIVIL SIDE.

(Friday 4th June.---Before his Honor the Resident Judge, and G.D. Mercer, and J. Manning, Esquires, Assessors.)

Kettle v. Smith. Action for work and labour.---Verdict for the plaintiff, £13. Mr. Brewster appeared for the plaintiff.

Power v. Cannon.--- This was an action to recover the sum of £65 6s. 8d., for money paid, laid out, and expended for the defendant by the plaintiff, and also for certain commission on a land sale; the money paid was for furnishing a luncheon at the said sale, by the desire of the defendant.

Judge Willis said, if people were so ridiculously foolish and extravagant as to provide champagne luncheons, they deserved to, and must pay for them, and he would observe, if a man was made drunk at one of those sales where luncheons were provided, and afterwards brought the matter before the court, the sale would be declared illegal.---Verdict for plaintiff, £63 10s. Mr. Barry appeared for plaintiff.

James v. Tulloch.--- This action was brought to recover the sum of £34 1s. 9d. the balance of an account for goods sold and delivered.---Verdict for plaintiff, £34 1s. 9d.

Mills v. Jones.--- Action for goods sold and delivered.---Verdict for plaintiff, £27.

Brown v. Westwood.--- This was an action to recover the sum of £72 15s. 7d., for land sold to the defendant by Mr. C. Williams, the auctioneer, as agent for the plaintiff.

His Honor held that the signature of the purchaser to the conditions of sale (it being an auction purchase,) was necessary to take the case out of the Statute of Frauds, the entry of the sale was not sufficient for that purpose; the entry was not an agreement between the parties in writing which was required by the Act; after the lot had been knocked down, the purchaser should immediately sign the conditions of sale, or give a memorandum in writing, the make the purchase a bona fide one---Verdict for plaintiff---Damages one shilling.

Patterson v. Carey. This was exactly a similar case to the preceding one, and a verdict was returned for the same amount.

Bell v. Cooper. Plaintiff sued to recover the sum of £30 for goods sold and delivered; and the sum of £31 5s., on a bill of exchange. As it appeared by the defendant's statement, who appeared on the floor of the court, that he had paid £10 to the plaintiff, a verdict was taken for £52 2s. 6d.

Rucker v. Rose.--- Action for use and occupation of premises in Fanders lane.---Verdict, £20.

Barnes v. Pittman. A verdict for one shilling was taken in this case by consent. Mr. Brewster for the plaintiffs.

Campbell v. Hodgson.--- Mr. Brewster for plaintiff, stated the case --- The action was brought to recover the sum of £223 10s. on a bill of exchange; the bill was drawn by a person named Mackenzie, on and accepted by the defendant; the defendant had pleaded the general issue, and gave the plaintiff notice, that he had given his attorney, Mr. Carrington, a draft on Mr. Highett for the amount of the bill.

Mr. Cunningham for the defence, urged there was no notice of the bill being due; and a mistake having been discovered that the plaintiff had by accident, handed in the wrong bill, the counsel for the defendant took and insisted on the objection, the plaintiff was consequently nonsuited.

Campbell v. M'Kenzie. This was also en action on a bill of Exchange for £ 249 7s., drawn by Hodgson on the defendant, who endorsed to plaintiff; the defendant pleaded the general issue of not guilty, and gave notice that the bill in question had been satisfied, by the plaintiff selling a certain tenement in the town of Melbourne, belonging to the defendant, for £ 500, which sum had been appropriated for the payment of the present claim; and a balance was due to the defendant; notice was also served on the plaintiff's attorney to produce all documents relative to the transaction; the plaintiff proved that the bnill had been presented in due course; and the defendant failing to establish the defence set up, the Assessors returned a verdict for the plaintiff,---Damages £ 249 7s.

Counsel for plaintiff---Mr. Brewster; for the defendant, Mr. Cunningham.

His Honor suggested that the foregoing actions should be referred to arbitration, as it was evident the parties had large and complicated transactions together, and a settlement could never take place while they were continually bringing actions against each other; it would save much expense, and it was quite clear a court of law could never settle the matter; it would eventually have to be decided on another side of the Court; he (the learned Judge) regretted the mistake that had occurred in the first action; but all he had to do, was to state the law of the case, and the Assessors must return the verdict.

Online as Williams v. Williams, 1841

 

PORT PHILLIP PATRIOT

AND MELBOURNE ADVERTISER.

FRIDAY, 14th JUNE, 1841.

SUPREME COURT.---CIVIL SIDE.

(Friday 4th June.---Before his Honor the Resident Judge, and G.D. Mercer, and J. Manning, Esquires, Assessors.)

Sayers v. Mitchell. This action was brought to recover the sum of £ 67 16 s. the amount of goods, which, through the neglect of the defendant, (who is master of a vessel trading from Hobart Town to this port,) in not passing the proper entries at the Customs, had been seized by the officers of that department, and condemned, and afterwards sold for the government duty only.---Verdict for plaintiff, £ 50.

Mr. Barry for plaintiff. Messrs. Brewster and Cunningham for defendant.

Burnley v. Porter and White. This was an action brought to recover the sum of £ 131; plaintiff had consigned a quantity of flour to the defendants from Van Diemen's Land, with instructions to sell for cash, or if they took bills for the amount, the plaintiff was to allow 2½ per cent del credere on guaranteeing the amount, and five per cent commission on the sale; the defendants undertook to let the plaintiff have cash for the flour as soon as it was sold; the defence was, that no undertaking had been given, and the plaintiff was bound to take the bills they had taken for the flour.---Verdict for the plaintiff, £ 131.

Counsel for plaintiff---Mr. Barry; for defendant---Messrs. Cunningham and Brewster.

The case of Arnold v. Gardiner was withdrawn.

The Court then adjourned until Saturday.

 

PORT PHILLIP PATRIOT

AND MELBOURNE ADVERTISER.

FRIDAY, 14th JUNE, 1841.

SUPREME COURT.---CIVIL SIDE.

(Saturday 5th June.---Before his Honor the Resident Judge, and G.D. Mercer, and J. Manning, Esquires, Assessors.)

Online as Brown v. Westwood, 1841

Re Alice and Henrietta Hakin, infants.

Mr. Brewster applied to the Court to appoint the Rev. Mr. Thomson guardian for the infants.

The Court granted the application; and directed that no fees should be charged in the matter.

Thurlow v. Chisholm. Mr. Barry moved for leave to amend the declaration filed in this case---a special demutrrer having been filed by the defendant.

The Court granted the application on paying the costs up to the time of the demurrer.

Sullivan v. Marchant. Mr. Cunningham moved that the submission in this case---which had been referred to arbitration---be made a rule of Court.---Granted.

The Court then adjourned until Tuesday.

TUESDAY, 8th JUNE.---HIS HONOR TOOK HIS SEAT IN BANCO.

Campbell and Woolley v. Ashman. Mr. Barry, on behalf of the defendant, moved for a rule nisi, calling upon the plaintiffs to show cause why the bail-bond taken by the Sheriff in this case should not be given up to be cancelled? on the ground that the defendant had been arrested for a debt she did not owe; the learned gentleman read an affidavit of that fact in support of his argument.

His Honor said this application should be made in chambers---he should have come down had any application for that purpose been made;---with respect to the defendant not owing the plaintiffs the amount sued for, that was a matter he could not go into;---it would be a question for either two or twelve persons as a jury to decide upon;---but if you (addressing Mr. Barry,) move to set aside the proceedings on the ground that the arrest was improperly granted by me, I shall be happy to hear you; to come before me to set aside the proceedings is one thing---to come before the Court to justify, is another thing---if I have committed any error, I shall be very happy to remedy it; the debt has been sworn to, as being on a bill of exchange; the Court does not sit to try cases on affidavit; and here is only affidavit on affidsavit; you can put in special bail to the action, and go to trial in November next.

In the case of Pearson and Baker, the defendant was leaving the colony for New Zealand, when Mr. Justice Stephenson directed he should find security for his appearance in £200 and an application was subsequently made to set aside the proceedings, for an arrest on excessive bail, which application was refused by the Court; he (Judge Willis) could not entertain the present case. Motion refused.

His Honor said in all the time he had been in the colony, there had never been an application to justify bail brought before him.

Arnold v. Gardiner. Mr. Barry moved in this case for leave to enter up judgment as in the case of a nonsuit; the case had been set down for trial on the 4th instant, and was on that day withdrawn by the plaintiff, which proceeding was totally irregular, the Rule of Court requiring four clear days notice of countermand to be served on the defendant. Mr. Barry also applied that the plaintiff should give security for costs, as he was at present compelled to reside in the rules of the gaol; the defendant having a good defence to the action which had been brought on a bill of exchange purporting to be drawn by the defendant, who could neither read nor write, though his signature appeared in full on the document, without stating that it was signed by procuration or otherwise; in fact (continued the learned gentleman) the bil\l itself is a forgery, and the party implicated in the transaction, has left the colony for New Zealand.
Mr. Montgomery said he had not received any notice of the application for security for costs, and consequently had not retained counsel to oppose it.

Judge Willis said he could not entertain the application for security for costs to the defendant; but with respect to the judgment as in the case of a nonsuit, the application would be granted.

The Court then adjourned till Saturday.

SATURDAY, 12th JUNE.

(This being the last day of term, His honor took his seat, in banco, to hear motions, &c.)

Mr. Barry moved that Mr. J.B. Quarry be admitted an attorney, solicitor and proctor of the court---granted.

Mr. Blair also applied in person to be admitted.

His Honor said he would not listen to any personal application of that description, and requested Mr. Cunningham to make the application for Mr. Blair; but as it appeared that he had not complied with the 21st rule of court and the application was in consequence refused; His Honor observing that the present refusal did not preclude a second application next term.

Hutton v. Brown. Mr. Brewster moved for leave to enter up judgment as in the case of a nonsuit; issue had been joined on the 21st May last, and notice of trial given on the 24th ; that the case was set down for hearing on the 7th June, and the appluication was grounded on the neglect of the plaintiff in not bringing the case to trial, in pursuance of the notice he had given.

Mr. Barry opposed the motion, and stated that the mistake arose in the belief that the day named in the notice was for the trial of jury cases---granted with costs.

M'Carthy v. Hooson. Mr. Barry moved in this case for leave to enter up judgment as in the case of a nonsuit.

Mr. Cunningham opposed the motion on the ground that the plea was not filed in sufficient time by the defendant---granted with costs.

Online as Were v. Smyth, 1841

Hawdon v. Simson & another, on demurrer. This case bore exactly on the preceding one, which was also dismissed with costs.

Mr. Barry was in support, and Mr. Brewster in opposition to the demurrer.

Williams v. Williams. His Honor observed to Mr. Cunningham on this case, that had a new trial been moved for according to the Rules of Court, as was intimated at the bar would be the

[Column cut off.. ...this report incomplete.]

 

PORT PHILLIP PATRIOT

AND MELBOURNE ADVERTISER.

THURSDAY, 20th JUNE, 1841.

SUPREME COURT.---CRIMINAL SIDE.

(Monday, 17th June.---Before his Honor the Resident Judge.)

WEDNESDAY, 19TH.

John Wood was indicted for uttering base coin at Melbourne, on the 15th April last.

The particulars of this case have already appeared in this journal. The prisoner was found guilty, but recommended to mercy. Sentence---Six months' imprisonment, and at the expiration of that time to find sureties for his good behaviour for the ensuing six months.

Thomas Watson was indicted for stealing one saw, one plane, and one pair of compasses, the property of Timothy Lane, at Melbourne, on the 22nd April. Verdict---Not Guilty. [This is the person who brought the stolen property to the police-office, as mentioned in this journal some weeks ago.]

His Honor observed that instead of the prisoner meriting an indictment for larceny, he was deserving the thanks of the public for his praiseworthy conduct.

John M'Gill was indicted for stealing a coat, value ten shillings, the property of James Simeon, at Melbourne, on the 21st April. The whole of this case has already appeared before the public. The prisoner was found guilty, and sentenced to be imprisoned in Her Majesty's gaol at Melbourne for two years.

Franncis Lamb was indicted for receiving a mare value £30, the property of John Gardiner Mack, well knowing the same to have been before feloniously stolen and led away by one John M'Carthy, at Melbourne, on the 13th April, 1841. There was not a shadow of a case against the prisoner, and he was acquitted.

His Honor cautioned the prisoner as to the company he kept in future.

George White, who was in custody on the coroner's warrant for murder, (as set forth in calendar) was brought up and discharged, upon entering into recognizance, himself in £200 and two sureties in £100, to appear when called upon to take his trial for the offence, the Crown Prosecutor not being prepared to go into the case, for reasons on the part of the public, he could not explain.

This closed the second Criminal Sessions.

The Court then adjourned sine die.

 

PORT PHILLIP PATRIOT

AND MELBOURNE ADVERTISER.

MONDAY, SEPTEMBER 27, 1841.

SUPREME COURT.---EQUITY SIDE.

Friday, September 24th, 1841.

BEFORE HIS HONOR THE RESIDENT JUDGE.

Gosling and others v. Dutton and others.

Online as Gosling v. Dutton, 1841

Majorst. John was then sworn in as Police Magistrate for the town of Melbourne.

PORT PHILLIP PATRIOT

AND MELBOURNE ADVERTISER.

MONDAY, SEPTEMBER 27, 1841.

SUPREME COURT.---EQUITY SIDE.

Friday, September 24th, 1841.

BEFORE HIS HONOR THE RESIDENT JUDGE.

Charles Jones the ex-Bailiff of the Court of Requests, was brought up from prison to be liberated on bail. Messrs. Thomas Walton and John William Seymour became security for his appearance at the next criminal sessions, themselves in £250 each, and Jones in £500. The bail having justified, his Honor pointed out to them, the danger of the liability they had entered into, and assured them that in case Jones did not appear, they would be compelled to pay the amount.

Jones was then discharged to his bail.

 

PORT PHILLIP PATRIOT

AND MELBOURNE ADVERTISER.

MONDAY, SEPTEMBER 27, 1841.

SUPREME COURT.---EQUITY SIDE.

Friday, September 24th, 1841.

BEFORE HIS HONOR THE RESIDENT JUDGE.

Online as Willis v. Dutton, 1841.

Published by the Division of Law, Macquarie University