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Decisions of the Nineteenth Century Tasmanian Superior Courts

Horton v. Kermode and Dickenson [1827]

assault - trial by jury - slander - evidence, rule against parties'

Supreme Court of Van Diemen's Land
Pedder C.J., 5 December 1827
Source: Tasmanian, 7 December 1827 [1]

This Action was brought at the instance of the Plaintiff for assault and battery.
Mr. Gellibrand opened the case for the prosecution with his usual ability. - The first witness called was
Mr. John Foster - Knows both Plaintiff and Defendant, the former lives 6 and the other 8 miles from him. Recollects of a quarrel between the parties about a roller borrowed by the Plaintiff from Dickenson during Mr. Kermode's absence in England, the former having been left as overseer of the estate during that period. On the 24th March last, Witness being about to proceed to Plaintiff's farm from that of Mr. Kermode's, was desired by the latter to inform the Plaintiff, that if he did not return the roller immediately, which he had borrowed from Dickenson in his absence, he would prosecute him before the Criminal Court. In answer to this message, Mr. Horton addressed a letter to Mr. Kermode the following morning, (Sunday,) in which he charged him with having promulgated slander and falshoood [sic] from fiend-like and vindictive motives. On the receipt of this letter Mr. K., accompanied by Dickenson, proceeded to Mr. Horton's farm, who, together with Witness, was walking in the field. When Mr. K. came up, he accosted Mr. H. as follows:- "Do you know me, Sir?" "Yes" "Is this your letter, Sir?" (which Mr. K. held in his hand.) "It is." "Did you write this postscript, Sir?" "I did." "Then, Sir, allow me to read it." Mr. Kermode then read until he came to the words - falsehood and slander, - when he said to Mr. Horton - "Do you then mean to accuse me of falsehood and slander, you d-- villain?" Mr. Horton then said, - "If you will walk to my house, I will show you how Mr. Pike's letter," which letter was said to be the authority upon which Mr. H. founded his assertion. Witness observing that the feelings of Mr. K. were very much irritated, advised him to be calm, confident that Mr. H. would give him every satisfaction. Instead, however, of walking to the house with Mr. Horton, Mr. Kermode stripped off his coat on the spot, and struck him (Mr. H.) several severe blows; particularly one on the chin to the effusion of blood, desiring him to resent it. This, however, Mr. Horton declined, and endeavoured to get away, but was pursued by both Defendants, who overtook him, and dragged him down from a fence over which he was attempting to escape, Mr. Kermode at the same time presenting a pistol to his head, and threatening to blow his brains out. Mr. Horton at length succeeded in getting away, after his clothes had been nearly torn off him, but was again pursued by Defendants, Mr. Kermode having jumped the fence after him, while Dickenson kept running outside, for the purpose of intercepting him at the opposite corner, where he was again stopped; immediately, Mr. Kermode came up, when he again threatened to blow his brains out. After being jostled here for some minutes, Mr. H. again got away, but was still pursued, even to his own door. After standing a bombardment of stones for some time, Mr. H. at length succeeded in getting them away, first by the assistance of a wooden rail, then a spade, and lastly a gun.
Joseph Stimson (servant to Mr. Horton) was then called, who fully corroborated the foregoing evidence.
The Solicitor General then addressed the Jury for the defence, lamenting that the most material witness, who could speak to facts so essentially necessary for supporting his client in this case, had likewise been made a Defendant, thereby preventing him from establishing and proving those facts.
Mr. Gellibrand spoke in reply. - The Chief Justice then briefly summed up, after which the Jury retired, and were absent upwards of an hour. On their return they found a verdict for the Plaintiff. - Damages, £100.
The following Gentlemen composed the Jury noticed above: - A.F. Kemp, Esq. (Foreman) J. Lord, R. Barker, J.A. Eddie, T. Atkinson, P. Dudgeon, F. Schultze, J. Bell, W. Cook, J.T. Collicott, J. Ross, and W.H. Mason, Esquires.

Notes

[1] See also Hobart Town Courier, 8 and 15 December 1827.

Published by the Division of Law, Macquarie University and the School of History and Classics, University of Tasmania