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Decisions of the Nineteenth Century Tasmanian Superior Courts

Pitcher v. Bartlett [1841]

jury bias - reporting conflict

Supreme Court of Van Diemen's Land, In Banco

Pedder C.J Montagu J., 14 May 1841

Source: Hobart Town Advertiser, 21 May 1841

            Mr. Stephen, for plaintiff, moved for a new trial in this case, which has already appeared before Mr. Justice Montagu, at Launceston, where a jury had awarded a portion of the amount claimed.

It appears that Mr. Bartlett, on behalf of several gentlemen residing on the Launceston side, had induced Mr. Pitcher to proceed to Adelaide for the purpose of engaging and bringing over a specified number of reapers and farm servants for each gentleman, in total fifty-two, to do which, a power of Attorney was transmitted to Mr. Pitcher, the consideration being £2, on each man; the plaintiff paying the passage money out of his pocket, but to be refunded on arrival in Launceston. Plaintiff proceeded to Adelaide, and seeing a man at work in the Hibernia Hotel, enquired whether he could reap, and how he would like a trip to Van Diemen's Land. The man answered he had reaped but once, though he was quite willing to learn - Mr. Pitcher, no doubt believing in the old adage, that "where there is a will there is a way" closed with him, and shortly after with four others; one a tolerable reaper, the second a pastry-cook, the third a whaler, and the fourth a butcher. Of these, the pastry-cook had remained in Launceston, the butcher had bolted, and the whaler was nonest investus. Many more were engaged, the greater number of whom were declared unfit for what they had been brought over to perform. This circumstance had been taken as a plea for withholding from plaintiff the sum of £47 10s. He had endeavoured to recover the amount in the Supreme Court sitting at Launceston; but the jury (biased as Justice Montagu seemed to think) had awarded only £24.

            Mr. Stephen went through the case as it had appeared before the Court in Launceston, and maintained that reaper's work is so undefined, that it would be nothing extraordinary for a person to be mistaken in the selection; besides a masterly use of the sycle is not incompatible with the trades of blacksmith, or butcher. The fact of the greater number of these men having been received, and not returned, was an admission of the contract.

            Mr. Justice Montagu observed that the contract was clearly admitted, but the question was whether substantial justice had been done on the former trial. It was very difficult in these Colonies to obtain a really impartial jury who enter the box totally ignorant of the case to be brought before them, and who will be guided solely by what will appear in evidence; more particularly so in Launceston, where the community is small, where the smallest transaction is known, and where the merchants, who principally compose the juries, know more of the case before entering the Court than the Judge does. I have repeatedly seen jurors enter upon a case, their minds already fixed as to the verdict, and I think such was the fact in this instance, the merits and demerits having been prejudged, the verdict would have been the same five minutes after the opening as at the close of the case. The more I consider the more impossible it seems that the trial should stand, as I must say I do not think the jury behaved as they should on this occasion. Case ordered to stand over till this day week.

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