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1-258 (Raw)

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author,male,Sydney Gazette,un addressee
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1192
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http://dbpedia.org/resource/New_South_Wales
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1825
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1-258
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Decisions of NSW Supreme Court
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39269
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1-258-raw.txt
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1-258#Raw
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Raw

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<source><g=m><o=b><age=un><status=2><abode=un><p=nsw><r=spb><tt=mi><1-258>
Rowe, Esq. v. Wilson
Mr. Allen opened the pleadings. This was an action brought by the plaintiff, Thomas Deane Rowe, Esq., an Attorney and Proctor in the Supreme Court of New South Wales, against the defendant, Mr. Caleb Wilson, a dealer in Sydney, for a malicious prosecution. The declaration contained 3 counts, setting forth, that the defendant did, on the 7th of February, the 2d of March, and the 29th of August last, prefer bills of indictment containing 3 several assignments of perjury against the plaintiff, and which were on each occasion ignored by the Grand Jury. The damages were laid at £1000.
Mr. Norton stated the case. This was an action for a malicious prosecution. The plaintiff was an attorney of the Supreme Court, and the defendant an opulent dealer in the town of Sydney. The action was founded on three different attempts made to prefer a charge of perjury against the plaintiff, and originated in an affidavit made by him in the Supreme Court, which was met, and afterwards explained by another, and the first of which gave rise to the indictment that was three several times prefered against the plaintiff, for wilful and corrupt perjury. In order to put the Court in possesion of the case, it would be necessary to give a brief history of the affidavits and also of the circumstances which gave rise to them. In the year 1822, the plaintiff was employed by three sailors, named Price, Etheridge, and Morgan, to sue a Mr. Nathaniel Thornton, by whom a sum of money was owing to them, and who resided in Van Diemen's Land, on which occasion he obtained a verdict for the claimants. From various circumstances he was not able to recover the proceeds, till September, 1824, more than a year after he had obtained the judgment, in consequence of which, and they being seamen, and obliged to leave the port, they made certain arrangements for the application of the money when it should be received by Mr. Rowe. Price when leaving the Colony, gave two orders on the plaintiff, one in favour of Mrs. Leburne, for £18, and another in favour of a person named Landers, for £10, and Etheridge also gave an order in favour of one Flood for £8, together with a power for him to receive the balance afterwards coming to him from the proceeds of his judgments. These orders the defendant afterwards received in the ordinary course of his business from Mrs. Leburne, and Landers, and thereby became the sole claimant, on the part of Price. Price had also given Mrs. Leburne a power of attorney to receive his balance, but afterwards on the 16th of May, 1823, being again his own free agent, he wrote to the plaintiff, desiring him to pay no orders except that for £18, drawn in favour of Mrs. Leburne. About this time Price was committed to gaol on a criminal charge, on which occasion the plaintiff defended him, and a man named Smith, whose expences as well as Price's, were to be deducted also from the monies in the plaintiff's hands, and in this complicated state, was the account between the plaintiff and Price, when the orders in the possession of the defendant, were offered for payment. Under all the circumstances of the case the plaintiff did not think that he could safely pay the demand made by the defendant, who refusing to take any thing short, they thus became at issue. Flood also at this time applied for Etheridge's money, but the instrument on which he grounded his claim was not a regular power of attorney, and the plaintiff having already some suspicion of irregularity connected with the transaction, refused to pay over the amount without a legal authority on which he would be safe in so doing, and in consequence of which the plaintiff received directions to prepare a proper instrument to be transmitted to Etheridge, who was then at some one of the neighbouring islands. 
Various interviews at this time took place between the parties, in which the insufficiency of the documents were discussed, and in the course of which the plaintiff, anxious to make every thing clear, set forth his claim against Price, and also a claim which he had against the defendant himself, for costs on various matters, but in none of these interviews had he ever made any promise to pay `till satisfied of the legality of the demand. After some time an application was made by Mr. Wentworth to the Supreme Court, grounded on the affidavit of the defendant, which set forth that the plaintiff had frequently promised to pay over the sum claimed, for an order to the plaintiff to hand over the amount of the judgments obtained in the case of Price and Etheridge. This application was met by an affidavit from the plaintiff, in which he set forth the amount of the sums due to him from the defendant, and also stated argumentatively that he could not have made the promise sworn to by the defendant, as he had frequent conversations with his managing clerk on the state of the matter, and on the uncertainty of Landers' claim, and that under these circumstances he could not have made any such promise, and upon this statement was one of the assignments of perjury grounded. Another assignment was, that the plaintiff had sworn to an amount due to him from the defendant, which in fact was not owing, but the plaintiff had been engaged in various long and tedious suits for the defendant, his managing clerk made out the bill of costs; which, when the plaintiff saw, he observed that the defendant had already paid some monies, but was assured that the account was drawn out for money then actually due ; upon this statement the plaintiff swore to the sum which he believed to be due, but did a merchant in swearing to a debt, always swear from his own actual knowledge? A man might be arrested for a debt which would afterwards turn out not to be owing, but would any person contend that such a circumstance necessarily involved wilful and corrupt perjury. It appeared that credit had not been given for a sum paid to a man named Cooper, who was at that time clerk to the plaintiff, but the statement had been furnished to him by his managing clerk, and he had only sworn that such a sum was due as appeared by that statement, and if the account was not correct, then the sum was not due. But would it be believed that an amended account was presented to the defendant before the first bill of indictment was preferred! 
As the law existed, an indictment for perjury could not be preferred without probable cause, and the soundness of this principle was most apparent, for it was possible that a party might not be able to defend himself on a false charge, from the absence of witness or various other causes, and therefore, though perjury may be imputed, still an indictment could not be prefered without shewing probable canse [sic]. But where was the probable cause in the present case for prefering, not only one bill of indictment, but a second, and a third on the same pretence? He (Mr. Norton) would contend it was a case of the most malicious prosecution ever brought before a Court of Justice; when the defendant was foiled in his application to strike the plaintiff off the rolls, foiled in his attempt to blast his character by the ignoring of his first bill of indictment, in order to leave no means untried to injure him, he prefered a second, and a third bill, and cloaked his malicious propensity under the avowed pretence of obtaining justice. The defendant had repeatedly and publicly declared, that he would never let the plaintiff rest, that he would pursue him to transportation, that he would invent a new punishment for him, for that of striking him off the rolls was nothing, and that he would continue at every Sessions to prefer his charge, `till he had obtained full satisfaction: but the Jury would that day visit him with such damages as would punish him for such vindictive purposes, and effectually rescue the character of the plaintiff from those imputations which were so falsely and maliciously sought to be cast upon it.
Previous to calling witnesses in support of the case, it was admitted by Counsel for the defendant, that Mr. Rowe was an attorney and proctor, and practised as a barrister and advocate, in the Supreme Court of New South Wales.
Mr. Thomas Shaughnessey examined by Mr. W.H. Moore. --- Witness resides in Sydney, and knows the plaintiff and defendant in this action; remembers hearing the defendant, about 8 or 9 months back, in his own house, say that the plaintiff was a d__d rogue, and that he would prosecute him for perjury; witness cannot remember the particulars of the observations made use of, but the defendant's language was very harsh, he seemed very determined; has heard since from two gentlemen who were on the Grand Jury, that he did prefer bills of indictment for perjury against the plaintiff, but that they were thrown out.
Cross-examined by Mr. W.C. Wentworth. --- Witness cannot say that the defendant spoke the truth when he said that plaintiff was a rogue; he had various transactions with the plaintiff, and always believed him quite the reverse.
Mrs. Elizabeth Britton examined by Mr. Garling. --- Witness knows the defendant; has heard him say of the plaintiff that he was a swindling b__g__r, that he meant to have him tried for perjury, and that he would get him pillored if he could; he also stated, that he had already presented one bill of indictment against him which was thrown out by the Grand Jury, but that he would prefer another to the next Sessions; this occured in witness's house, where the defendant came [t] o supoena a Mr. Cooper, who had formerly been one of the plaintiff's clerks.
Cross-examined. --- Cooper lodges in the house with witness, he is not one of the defendant's clerks now; witness is a married woman and lives with her husband.
Frederick Garling, Esq. examined by Mr. Norton. --- Knows the plaintiff as a professional gentleman; knows the defendant also; has had dealings with him; witness is clerk of the peace; there was a bill of indictment for perjury against the plaintiff, prefered in the Sessions Grand Jury, on the 7th of February last, which was returned not found; a second bill was prefered at the Sessions, held on the 2d of May, which was returned no bill; and on the 29th of August last another bill for the same offence was prefered, and returned by the Grand Jury, not found; the Sessions in February were held before William Carter, Esq. and others; [in M] ay, before John Stephen, Esq. And others; and in Au[gust], before William Carter, Esq. Edward Wollstonecraft, [Esq.] and others.
Cross-examined. --- Witness was in Court when the first bill [was] presented; does not remember the fact of Mr. Blaxland, the foreman of the Jury, coming in to Court and stating that 8 of the Grand Jurors were for the bill, and 4 against it; cannot say the number of Jurors present when the second bill was presented; there were 23 present on the last.
Mr. Charles Clay, examined by Mr. Allen. --- Knows the plaintiff and defendant; was present on Wednesday last at the house of Mr. Walton, a publican, in King-street, when some conversation took place between the defendant, Mr. Andrew Nash, and Mr. Walton, relating to the plaintiff; defendant said plaintiff was a perjured scoundrel, and that he would proclaim him so in every company he went into; the defendant also said, that he understood plaintiff had brought an action for £1000 damages against him; but if he, defendant, gained the day, he should be able to strike plaintiff off the rolls, for, that he was a perjured villain; some of the company present said to defendant, that those were bold assertions, that he should be cautious, as such reports were strongly calculated to injure the plaintiff in his profession; defendant replied that he would maintain what he said every where.
Cross-examined. --- Defendant spoke as if he believed plaintiff was perjured.
Mr. Andrew Nash, examined by Mr. W.H. Moore. --- Witness was present at the house of Mr. Walton, in King-street, when the conversation occured relative to the plaintiff; the defendant said that no person should employ him as a Solicitor, for he was a perjured scoundrel and a rascal; witness said to defendant, that he ought to be very cautious how he spoke in such a way of a professional Gentleman, and that he did not think the plaintiff deserved such imputations; defendant replied that he would prove it, and bring witnesses forward for that purpose. Some conversation took place relative to the three bills of indictment which were thrown out by the Grand Jury; defendant seemed to imply that he had not justice done him by the Grand Jury; this conversation occured at the house of Walton, in King-street; it is a public-house.
Cross-examined. --- Defendant seemed to speak as if he was convinced of the truth of his assertions; he insinuated that plaintiff had a number of friends on the Grand Juries which threw out the bills.
Re-examined by Mr. Norton. --- Witness certainly understood defendant to impeach the honesty of the Grand Jury who threw out the bills.
Mr. John Walton examined by Mr. Norton. --- Corroborated the evidence of the two last witnesses.
Mr. James Lindsay examined by Mr. Garling. --- Remembers a motion being made in the Supreme Court, on the 22d of September last, relative to a trial, in which Wilson was plaintiff; witness saw the defendant in the street on that day, near the Court-house, he had some papers in his hand, and called out that plaintiff was a perjured villain, for that he had sworn that he, defendant, owed him £13, for which he had his receipt; this was said so loud that witness heard it across the street; witness met the defendant on the evening of the same day, near the Market-place, and in the presence of a number of persons, he asked witness what he thought of that rascal Rowe, and said he would follow him up till he had him struck off the rolls and pillored; this he said with great vehemence, and loud enough to be heard by every person round; witness had some conversation with the defendant lately, and told him that plaintiff was bringing an action against him, for a malicious prosecution; defendant replied that plaintiff was making a rod for himself; witness has conducted the business of an Attorney's Office for many years; filing supplemental affidavits is very usual; remembers the plaintiff being concerned in a cause between two persons, Stewart and Ferrier; Mrs. Ferrier now lives with the defendant; witness don't know if plaintiff was retained by the defendant in that business, but he appeared much interested in it.
Cross-examined. --- Witness was in Court when the motion was made to strike the plaintiff off the rolls; part of the motion went to that extent, and part charged him with malpractices; witness was in Court when the Chief Justice pronounced his judgment; His Honor made some animadversions on the conduct of the plaintiff, but only for having made, and not kept an appointment; he did not at all impute perjury. The plaintiff was ordered to pay the money into Court, together with the costs of the application.
Re-examined. --- Remembers the Chief Justice saying in the course of his remarks, that all the graver charges were fully met by the affidavits of the plaintiff.
Robert Stewart examined by Mr. Allen. --- Remembers the plaintiff having transacted a considerable deal of business in an action brought against witness by Mrs. Catherine Ferrier; the matter came before the Governor's Court; plaintiff attended there, and at various other places on her part, while the action was pending; witness does not think £20 would pay plaintiff for his trouble in that transaction; if it was witness's case he would give £20 readily; witness wishes that he had availed himself of plaintiff's professional assistance.
Cross-examined. --- Believes the business of Stewart and Ferrier occured in the year 1822; witness arrested Mrs. Ferrier for debt; does not remember the amount; never swore that Mrs. Ferrier was married to witness.
William Cooper examined by Mr. W.H. Moore. --- Witness was Clerk to Mr. Rowe some time since; does not remember the business of Stewart and Ferrier; remembers an indenture of apprenticeship being prepared by direction of the defendant, for the son of Mrs. Ferrier; the defendant was frequently at the office of plaintiff on various business.
Cross-examined. --- Remembers being present when the defendant came about the payment of monies which plaintiff had recovered from some person at the Derwent; has heard plaintiff say that he could not pay defendant's demand; he said he would pay certain sums, but that the authority on which defendant claimed was not sufficient; Mrs. Flood was there frequently; never heard plaintiff promise payment to her of any monies, she claimed on an order from Etheridge, which plaintiff said was not sufficient authority for him to pay over the amount; a regular power of attorney was prepared by plaintiff to be sent to Etheridge; witness never knew plaintiff to deny himself to any applicants for money.
Mr. Gurner, Clerk of the Court, being sworn, produced the affidavit made by Thomas Deane Rowe, Esq. on the 22d of December, 1824, to which was subjoined a bill of costs; on that affidavit an assignment of perjury was laid against plaintiff: the Chief Justice made some animadversions on the conduct of the plaintiff, when delivering the judgement of the Court, on the application made by Mr. Wentworth.
Cross-examined. --- The Chief Justice did not impute perjury to plaintiff; he appeared to be of opinion that some degree of neglect was attributable to him, but there was no imputation of perjury whatever.
Frederick Garling, Esq. re-examined. --- Between the motion of Mr. Wentworth, and the judgment of the Court, the plaintiff applied for, and obtained leave, to file a supplementary affidavit.
Mr. William Freeman examined by Mr. Norton. --- Witness is managing clerk to Mr. Rowe; plaintiff was employed by the defendant in various causes; plaintiff had a considerable claim on account of Mrs. Ferrier's business; there was an action brought by her against a person named Stewart, and also a considerable degree of trouble in trying to get her out of the factory; the defendant retained plaintiff on her account; if plaintiff had charged according to his trouble, 40 or £50 would scarcely have paid him; witness made out a list of costs against the defendant which turned out to be incorrect; another and correct account was then made out, and presented to defendant, before the first bill of indictment was prefered.
Cross-examined. --- The business transacted for defendant, on the part of Mrs. Ferrier, was about July, 1822, 3 years ago; there were various other business done for defendant, some of which were not charged in the bill of costs; there was a deed of apprentiship, [sic] and various attendances about Mrs. Ferrier while she was in the factory not charged; at the time of the presentment for perjury, there was upwards of £20 due from defendant to plaintiff; witness will swear that that money is still due.
It was here admitted on the part of the defendant that His Excellency the Governor had received letters, recommending the plaintiff to his notice from the Executive at home.
Mr. John Blaxland examined by Mr. Norton. --- Witness received a letter from Messrs. Sweet and Stokes, Solicitors in London, recommending plaintiff, in very strong terms, as a gentleman of highly respectable connexions and character at home.
Some other witnesses were called on the part of the plaintiff, but not answering, the Court, on account of the lateness of the hour (half past 5 o'clock), and the probability of the defence occupying considerable time, was adjourned, by consent, to 10 o'clock on Tuesday morning.
SECOND DAY.
TUESDAY, NOVEMBER 29.
The Court met this morning at 10 o'clock, pursuant to an adjournment, when His Honor called on the Gentlemen engaged, to proceed with the case of Rowe against Wilson,
Dr[.] Douglass, examined by Mr. Garling. --- I was resident Magistrate at Parramatta when in this country before; I remember a female being in the Factory named Catherine Ferrier; and I also remember the plaintiff having applied to me, both personally and by letter about her; the defendant wanted to marry her, but she would not be allowed to leave the Factory, as when she landed, she represented herself to be a married woman, married I believe to a man named Stewart; I remember also that the defendant attempted to get into the Factory by some means; it was said by scaling the walls; it made a considerable noise in the neighbourhood at the time; he was so constantly seen wandering about the Factory in the evenings, that I thought it necessary to send for and caution him, as to the line of conduct he might pursue; I had a conversation with a high official character, the Secretary to the Transport Board, previous to my leaving England, who was much interested about the plaintiff, who he said was a cousin, or some near relation to Lord Gifford.
William Wemyss, Esq. examined by Mr. Garling. --- Before I left England I was spoken to by Mr. Harding, of the Navy Office, about the plaintiff, he seemed much interested for him, and requested me to do him any service in my power in this Country.
Mr. Garling as Clerk of the Peace, deposed that the plaintiff paid 30 dollars for copies of the bills of indictment prefered against him at the Sessions; the plaintiff had so far incurred pecuniary, in addition to the consequential damage sustained from the malicious prosecution by the defendant.
Cross-examined. --- Never knew that Attornies were entitled to, and received copies of public documents, gratis, in cases wherein they were themselves concerned.
The case for the plaintiff having closed, Mr. W.C. Wentworth rose, and addressed the Court for the defendant.
The Learned Counsel stated, that knowing what he did of the facts of the case, knowing what the plaintiff himself must have been aware that he knew of the case, he was the more surprised that such an experiment, as had been that day made, should ever have been attempted. He should have hoped from the imminent jeopardy which the plaintiff had escaped by a train of unforeseen circumstances, that in place of coming forward to seek vengeance for a just prosecution, he would have suffered the transaction, which was almost ceasing to live in the remembrance of the Public, to sink into a quasi oblivion. If he mistook not the situation of the plaintiff in society, he could have suffered nothing in point of character, and the only damage which it had even been attempted to shew that he had sustained, was the paltry one of 30 dollars, a sum which he should have cheerfully paid in consideration of the escape which he had had. There never was a case of more gross perjury ever submitted to a Court of Justice, than that with which the plaintiff in this case was charged.
Mr. Garling rose and observed, that he was sorry to interrupt the learned Gentleman, but he submitted that as there was no plea of justification on the Record, it was not competent in Counsel to give in his statement, that which could not afterwards be supported by proof.
Mr. Wentworth contended that it was competent for him, according to the modern practice, to call evidence in justification under a plea of the general issue, and designated the objection as frivolous and shuffling.
Mr. Garling observed, that such was the sort of language they had been accustomed to hear from the learned Gentleman, but he would notwithstanding contend, that an objection, to support which authorities could be adduced, was not to be designated frivolous or shuffling, merely upon that Gentleman's statement.
His Honor was of opinion, that in cases of malicious prosecution, and where, as in the present case, so much depended upon a probable cause, that it was by the modern practice, competent for the defendant, under the plea of the general issue, to go into evidence to prove a justification, and therefore if it was intended to offer evidence, as justificatory of the defendant, in prefering those bills of indictment, he could not object to Counsel's statement.
Mr. Wentworth continued; if it could be shewn that perjury was committed by the plaintiff, it was immaterial whether the defendant was actuated by malice or not, and would be a bar to the action then before the Court, as affording a probable cause for prefering those bills of indictment. It appeared that the defendant claimed the amount recovered for Price, by virtue of various orders and powers of attorney which had all settled in his hands; an objection had been taken by the plaintiff, that one of these was a power of attorney to Mary Leburne, and was therefore not transferable, though that very power was drawn up in the plaintiff's own office, and the defendant told that it would be a sufficient authority for him to receive the money. The objection therefore, that was made to this claim, was most disgraceful as well as futile, and was one which would never have been made by any man of character. It was stated that the Chief Justice, in delivering the judgment of the Court on the motion made on the part of the defendant, did not throw out any imputation of perjury against the plaintiff, but it would have been strange if any such observations had fallen from His Honour; that was not the question then before him. The objects of the application on which His Honor was then observing, were of a different nature, namely, to get certain money paid into Court, and to call on the plaintiff to answer to certain allegations, which in the opinion, at least of those who moved for the rule, contained matter sufficient for the Court to discontinue him; and it therefore formed no argument against the defendant, that a direct imputation of perjury had not fallen from His Honor the Chief Justice. It was stated in the defendant's affidavit, that at the close of the Court, on the first day of October 1824, the plaintiff promised to pay over to the defendant the monies claimed by him, but how was this the main allegation met by the affidavit of the plaintiff, filed on the 31st of Dec. 3 months after? what was the argument there set forth; he feared to deny having made some promise, but seeing the necessity of giving a colour to the transaction, he said he could not have made such promise, and that denial was founded upon something which he recollected saying to his clerk, Mr. Freeman. But what did could not mean, but did not? If a thing could not happen, it did not happen. What other meaning would a Jury of 12 impartial men on their oaths, attach to it, if the indictments had been found, as they should have been, and the plaintiff had been arraigned at the bar for perjury. If, therefore, the Court should be of opinion, that such was the plaintiff's meaning, which the very caution of the affidavit shewed, if the Court should believe such was his meaning, then there was probable cause at least, for that part of the prosecution. What did the Chief Justice say? That it was clear that the plaintiff had promised to pay on the 1st of October, and did not that declaration shew, that he believed that part of the affidavits made by the plaintiff and his clerk, to be false. With regard to the second affidavit, it contained two distinct allegations, one that the money was actually due, and another that it was due, as appeared also by the account of costs thereunto subjoined[.] There was then a positive and substantive allegation, independent of the account, and which, when the defendant heard, he was so shocked that he immediately ran home from the Court, actually terrified that such evidence should be brought forward, and instantly produced documentary proofs to completely rebut the affidavit; and then it was on the threat of ulterior proceedings being taken, that the supplemental affidavit was filed, which was merely the creature of those threats, and was made to take the responsibility he was aware he had incurred, from off his shoulders. But could the mere filing of a supplemental affidavit destroy perjury, which was already committed; perjury which was completed on the swearing of the first affidavit, if it was the case, that a man would be allowed to file a supplemental affidavit, what wretch would ever have been convicted of the crime? The perjury was committed at the first swearing, or was not committed at all; and the second affidavit was only allowed as explanatory of the first, and not to take off any legal consequences of the crime already committed. Perjury did or did not exist on the 22d of September, and if it did, no ulterior affidavit could destroy, nor never was intended should destroy, the legal consequences which had arisen from the crime already committed. Much stress has been laid on the defendant having called the plaintiff a perjured villain, in order to shew that he was actuated by a malicious motive in prefering those bills of indictment, but those expressions were but the honest and conscientious conviction of a mind, detesting the turpitude and baseness of the character of the individual to whom they were applied. That the indictments were thrown out was not wonderful, considering the constitution of Grand Juries in this Country; he (Mr. Wentworth) did not complain of Trial by Jury; but he complained of its limited existence, and of its misfortune in being restricted by illegal fetters, on which account the same parties were on the Jury at every Sessions. It was the personal friends and cronies of the plaintiff who were present, that threw out the bills, and by whom the question was most indecently taken up as a party question. He did not impute this by any means as an objection to Trial by Jury, but he mentioned it as one of the many reasons for extending this privilege in illimitable extent, in order to prevent the same persons always attending. The only consideration for the Court was, whether could not was synonimous with did not, and whether it was the intention of the plaintiff by deceiving the Court, to shuffle out of the dilemma into which he had brought himself; and also, they must come to the conclusion that there was not only a want of probable cause, but also malice on the part of the defendant, before they could find a verdict for the plaintiff, in the case before them.
Several witnesses were called for the defence, whose testimony went principally to the point of the disputed accounts between the plaintiff and defendant; and at a late hour in the evening Mr. Garling for the plaintiff rose, and stated that he had to reply, under circumstances of great disadvantage, from the lateness of the hour and the voluminous mass of evidence he had to go through, arising from the quantity of irrelevant matter which had been introduced, as the indictments which were the subject of the action then before the Court, arose entirely out of the transactions on account of Price and Etheridge. This was an action brought by the plaintiff, in order to the vindication of his character in the public mind, from the circumstance of three separate bills of indictment having been prefered against him, and if the statements of Counsel were to make an impression, and those statements unsupported by a shadow of evidence, woeful indeed would be the situation of any person coming into Court to seek redress. The Counsel for the defendant had that day indulged in a strain of virulent invective towards the plaintiff, the most uncourteous, and such as was never before heard or tolerated in a Court of Justice; he had identified himself with his client in such a manner as was never before known, but he (Mr. Garling) trusted that these expressions and personal invective which had been so indulged in, would make a different impression from that which was intended; and that it would be the last time he should ever hear such language drop from the lips of any advocate in that place. The conduct of the Grand Juries had also been impugned in a manner the most unprecedented, but he would contend that in throwing out the bills against the plaintiff they had done their duty, and he trusted that as long as Juries existed in this Colony, they would ever do so, unintimidated by any such unwarranted misrepresentations as had been on that occasion so freely indulged in. He contended that it was impossible for the plaintiff, or any other man, from the complicated nature of the transaction to unravel it, and to know whether he was safe in paying over the amount, and to whom. Mrs. Flood stated that the plaintiff had expressly promised to pay, and in answer to that statement, the plaintiff swore that he could not have made any such promise, as he had frequent conversations with his managing clerk, as to whether it would be safe for him to do so; so that the appointment so much relied on, must have been merely to come to some arrangement, and yet upon that allegation a bill of indictment was prefered, containing what never before was seen in an indictment for perjury, an innuendo, that could not meant did not. On the discussion of the motion in the Supreme Court, the learned Counsel held a different opinion, for he then stated, that if the plaintiff had sworn, he did not, he would have treated him to an indictment for perjury. 
It was also contended by Mr. Wentworth, that it was clear to the Court at the discussion of the motion, that perjury had been committed, but would any one who knew the integrity, wisdom, and learning of His Honor the Chief Justice, suppose for a moment, that if it was clear to him that perjury had been committed, that he would suffer the plaintiff one instant to remain on the rolls? And therefore, that he did not strike him off, was a clear and sufficient answer to that assertion. But what had been the conduct of the defendant throughout the transaction; he prefered a bill of indictment against the plaintiff; the Grand Jury before whom the bill was laid, returned it not found; and what was the evidence brought forward before a Grand Jury? that of the accuser and his witnessess, [sic] an ex parte statement; yet the Grand Jury threw out the bill; three months after the defendant prefered another bill, the Grand Jury again threw it out; and what did he then do? what was never before heard of; he prefered a third bill; and as some complaints were about, that there had not on the two last occasions been a full jury, the returning officer exerted himself, so that the fullest jury that could sit were in the room. Before the Jury the defendant came again with his witnessess, [sic] no evidence on the part of the plaintiff in any way to rebut these statements; and that Jury, that full Jury again threw out the bill; and yet, after all this, the defendant was only a week ago declaring, in the presence of various people in a public-house, that he again meant to prosecute the plaintiff, and to follow him up, until he had his revenge; and this he stated with the utmost virulence of language; shewing most unequivocally that he was not actuated by a sense of justice, but by the most malignant feelings. Mr. Garling here went through the whole of the evidence, commenting on its nature, and concluded by submitting, that, under all the circumstances of the case, the epithets which had been that day applied to the plaintiff had not been justly applied, and that he was therefore entitled to heavy damages for the injury which had been attempted to be inflicted on his character by the defendant.
His Honor briefly addressed the Jury, and observed, that if any of the counts in the declaration should be supported, if malice should appear as was necessary, and that there was no probable cause for the defendant prefering not only one, but three bills of indictment, then the plaintiff was entitled to a verdict at their hands. With regard to the words could not, meaning did not, which formed one of the assignments of perjury, His Honor observed, that had the plaintiff even made use of the words, it was impossible, he could not have held it to be that direct statement of fact, as to allow of an indictment for perjury being prefered, for it was a rule of law, that a person was not to be criminated on mere presumption, the facts should be clearly stated, and even common reason would dictate, that a man could not be found guilty of a crime, which would disqualify him for the exercise of those privileges of citizenship, enjoyed by all others; make him incapable of giving evidence in a Court of Justice, and blast his character in society, so as to make even death preferable; it never could be contended that he could be convicted of that wilful and corrupt perjury which entailed all those consequences, where he had merely erred from ignorance of the fact; even supposing such to have been the case, in the instance then under consideration. To find a man guilty from inference, is what the law would never allow; and that question for the Court was, whether there was probable cause, when the first bill was ignored, for bringing it a second and a third time? His Honor was strongly of opinion there was not, for in the first place, all the evidence then before the Court had been before His Honor the Chief Justice, and when his high character was considered, and his universal anxiety to do justice to all was so well known; when he had decided that there were no grounds on which he could degrade the plaintiff, and make him any longer unfit to exercise his profession, a punishment, which all who knew the upright sentiments of his mind, were well aware that however painful to his feelings, he would have inflicted; if, therefore, there was no probable cause for the first bill, still less was there for the second and third. It had been alleged as a reason for bringing the indictment forward a third time, that on the two former occasions there was not a full Jury, but that did not appear to be a probable cause; why was it not brought before the Supreme Court, where the Attorney General would never have refused an information in the ordinary course, if it was supposed, which His Honor could not believe, that party feeling could have influenced the Jury on their oaths. The Learned Judge himself, did not hesitate to bear testimony to the extreme propriety and honourable conduct of Juries in this Country, and it certainly did appear to him, that the defendant had not reason for bringing forward so many charges against an individual, and that individual an Attorney of the Court, depending for his subsistence on the opinion of the Public as to his character. It did appear that a malicious motive had influenced the defendant, and the only question was the amount of damages to which the plaintiff was entitled from the hands of the Jury. --- Verdict for the plaintiff. Damages £100, with costs.
His Honor, in delivering the verdict of the Court, stated that the Jury were influenced in assessing damages at so low a rate, only in consideration of the circumstances in life of the defendant.
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http://ns.ausnc.org.au/corpora/cooee/source/1-258#Raw