Wm. Marrs v Smith, Lewis, Smythers. Duffield, Lukin, and Herd charged with "conspiring to injure the person and character of the Plaintiff, and for committing an Assault and Battery, Damages £500."
The two latter, it was stated by the other Defendants, Mr. Clarke, (the Plaintiffs Solicitor) had acknowledged, were included in the charge, in order to prevent their being witnesses. It was therefore urged that they should be struck out. Mr. Clarke objecting, the Jury were impanneled.
Mr. Clarke opened the Case. This was a singular, and disgraceful instance of inhospitality to a Stranger, for which he claimed redress from a Jury of Britains. The Plaintiff had been a Chairmaker at Carlisle, and had emigrated to Hobart Town, and Sydney, where he joined a Mr. Charles Smith in Partnership, and the general Cargo of the "Governor Bourke," was one of their Speculations. He knew what a prejudice existed in this Colony against the Penal Settlements, but hoped the example made of the defendants this day, would shew Strangers that any injuries sustained could be redressed.
Daniel Scott sworn.—Remembered a sale on the 24th. December last, at the Union Hotel, was there with the plaintiff. There was an altercation about a lot, and the Plaintiff told me to close the books as he would not buy any more. A scuffle took place between the defendant Smythers, and the plaintiff, Ito prevent a fight, numbers came in and dragged plaintiff out. He afterwards rushed into the parlour and laid hold of a gun threatening to shoot any person who touched him; he was seized and taken out by force. A short time afterwards, he was brought in and carried up stairs. In a few minutes I saw him in the street which surprised me, he had jumped out of the window. The defendant Mr. Lewis told me that he had given him in charge, and he was sorry to see him in that state, and as I was his Agent he thought I had better go and bail him. Followed and saw several persons carrying him. He struggled a good deal but I did not see any blows. This occurred between 2 and 4 o'clock, after tea in the evening he transacted business with me.
Cross examined by Smith, thought the lot being knocked down to Marrs, merely a mistake.
Cross examined by Lukin,—The Plaintiff was not drunk but fresh, remembers his calling for a bottle of wine, and going round the room with it in his hand, offering it to people to drink.
Supposes the bruizes were occasion in the attempt to take him to jail.
By Duffield,—There was no premeditated design. Did not see a blow struck. Plaintiff dragged out in consequence of his taking up the Gun.
By Lukin,—There was a great deal of "Chaffing" or passing jokes on both sides,
By Lewis,—Did not see any violence at all, considers he was taken up stairs to quiet him.
Mr. Dixon, remembers the Sale. Several persons called Mr. Marrs a convict, he thought in Joke. Plaintiff made a grab at Smith's pocket. Smith said "so you can't leave off your old tricks," saw Lewis put his fist in Plaintiffs face, I thought Plaintiff a great coward to put up with it. Heard Lukin say the Plaintiff was a d—d scoundrel. If I had been treated in the same way in a foreign Country, I should have thought myself shamefully used,
By the Commissioner,—The Plaintiff losing his handkerchief the origin of the whole. The joke was carried too far.
Cross examined. He tore off his own clothes; but did not appear disposed to fight. He was so aggravated that at many times he did not know what he was about. My grounds for considering him not sober, are, that he bid higher for things than he would have done.
Brown, When the Poney was pulled back, which the Plaintiff was about to mount, to try it; his hat fell off, and his Handkerchief dropped out. The hat was given back, but not the Handkerchief. Plaintiff looked Smythers hard in the face and asked him for it, he denied having it, this raised the Plaintiffs Passion. I offered the handkerchief 2 or 3 times to the Plaintiff, but he ran "round and round crying out "where's my property. I thought him in such a rage that he did not know what he was about. He was taken up stairs to take care of him. Vincent the Jailor took him afterwards in custody at Lewis and Smiths request, when they had carried him a short distance Smith cryed out "let him go" when he came back he took up another stone, Lewis ran up to him, and said "will you throw it?" and shook his fist in his face. Plantiff dropped the stone, and picked up his shirt. He afterwards took up a stone, and a broken bottle, and cautioned the people not to go near him, Smith and Lewis said they would not have the place disturbed in that way, and he should go to jail, Smith often requested him not to be so riotous. His being taken up stairs arose from a friendly feeling.
Richard Morrell, saw the plaintiff in the street, lying on the ground, he made use of a great deal of abusive language. When I saw him going across the swamp after he was discharged, I thought him drunk from the manner in which he walked.
A. Curtis, heard no irritating language used, I was near Smythers when plaintiff came up, and snatching at a Handkerchief in Smythers's pocket said "that's my property," they scuffled together; cannot say who turned him (plantiff) out of the house. He took his shirt off for 3 hours afterwards. The man (plaintiff) was very outrageous, quite drunk before the Sale was half over. I thought him so from his frequently saying "I'll give you so many pounds of stinking Beef, or Pigs Cheeks, and by his violent strutting about, and treading on peoples toes.
Cross examined, The plaintiffs conduct repeatedly put a stop to the sale.
By Duffield. No person intended to inquire the plaintiffs person or character.
Mr Manning was called by the plaintiff to speak as to his knowledge of him in England: but nothing was elicited further than that witness remembered seeing the plaintiff frequently in his fathers shop in Holborn, and believed him to be a Carpenter, could not say whether he was a Master or a Journey-man.
The Plaintiff stated, that a great deal of ill feeling existed in the other Colonies against this place, owing to the treatment strangers had met with here "and when I go back how can I say I have been treated, (a general laugh) The defendants here severally addressed the Jury.
James Mac Dermott sworn—I was at the sale, Plaintiff was bidding high, he was in a state of intoxication. The plaintiff and defendants appeared very intimate together and were joking, I saw the plaintiff take off his shirt, and challenge any person present. He tore Smythers's Waistcoat; Plaintiff asked Smythers for his handkerchief, he said in a jocular way, "you shant have it." I saw the plaintiff in the evening. He complained of ill treatment, I told him he had only himself to blame.
J. Bateman.—Saw the whole of the affray. The first thing which led to it, was the plaintiffs rushing upon Smythers. Did not hear any provoking language. The Plaintiffs conduct was riotous and calculated to occasion a breach of the peace, it was the effort of every person there, to quiet him. The sale was completely stopped by the uproar. It was necessary to take him away to restore peace.
Examined by Lewis.—I saw no provocation, recollect Lewis's trying to pacify him. His (Plaintiffs) language and conduct were abusive and violent.
Cross examined.—He took all the jokes on good part for some time. The handkerchief being withheld was not a sufficient provocation for the disturbance. He was intoxicated. His conduct was ridiculous when he was shewing off the horse.
J. Weavell's testimony was merely a repetition of the former evidence.
The Commissioner read over his notes of the evidence, and considered it unnecessary to make any comment. He would leave it entirely to the Jury. A conspiracy was not in any way proved, they must dismiss that entirely from their minds, and confine themselves to the Assault, and Battery.
The Jury retired for ten minutes and returned a Verdict for the defendants which the Commissioner adjudged, entitled them to costs.
The two other trials in which Mr. Marrs was Plaintiff, both of which were decided against him, as well as the further proceedings in the Court, will be published in our next.
At the opening of the Court on Thursday Morning, Mr. Clarke begged to claim the attention of the Commissioner for a few minutes. He had been informed that during his (Mr. Clarkes) absence Mr. Charles Smith in his defence, had made personal allusions to the advice Mr Clarke had given the Plaintiff. He treated the remark with profound contempt, but he could not avoid noticing that he was unfortunately put forward as a Principal, where he was only acting as Agent.
The Commissioner, observed that it was noticed at the time, and checked; indeed it was always his desire to restrain parties within proper bounds, and in this instance he had noticed the observation as irrelevant to the subject.
The conversation dropped.
COLONEL HANSON'S PAMPHLET
We have great pleasure in laying before our Readers the following extract from a Printed Pamphlet, by , the Quarter Master General at Madras.
The interest it has excited here will we trust plead our excuse with the Colonel for rendering Public, that which he intended merely for Private distribution.
The climate of swan River in the Winter Season is as favourable to health as can well be imagined. I am told however that the heat of summer is nearly equal to the heat of India, and tho' less debilitating to the constitution it is frequently very oppressive. The great draw-back to this settlement is the present intricate Navigation into the Harbour. Reefs of Rocks extend Seaward from Rottenest Island, Pulo Carnac, &c. &c. and although there is a safe channel into Cockburn Sound, yet the passage requires a Pilot, and in the event of a Westerly Gale, the Ship would be obliged to beat off a dead lee Shore. For the six summer months however, from October until April, there is no difficulty of access whatever. Land and Sea breezes prevail regularly during this Season, and Gages Roads tho open to North West winds, affords a safe and secure anchorage—the Town of Fremantle is yet in its infancy. The site is chosen on the South Bank of the Swan River, which here disembogues itself into the Sea. There is a troublesome bar at its entrance, requiring skill and attention to cross, but there is a thoroughly sheltered Bay in it's immediate vicinity, where all passengers should land in the first instance, and take a favorable opportunity for sending their loaded boats into the River. The first impression of a stranger is certainly unfavorable—he sees nothing but an apparently poor soil, upon which the Town of Fremantle is building, and until he is shown the actual produce of "Mother Earth," it will be difficult for him to imagine that it is capable of giving any sort of vegetation. When he does see however, that this apparent sand produces the finest Vegetables in the world, he cannot permit himself to remain any longer in doubt. There was an excellent little Inn established when I was there, the "Stirling Arms," at which the comforts were fair and the charges moderate. Several good Stone and Brick Houses were in progress, the property of respectable Settlers, and indeed all classes seemed to be governed by the same praise-worthy spirit of industry and good feeling towards each other. The distance by water from Fremantle to Perth, I should calculate to be about twelve miles, but the land road is much shorter, and upon it half way, there is an Inn, at which the Traveller can obtain refreshment.
The Town of Perth is at present the capital of the Colony, and the site of it is well chosen—it is situated on the North bank of the Swan river, having a picturesque little mountain at it's Western extremity, named Mount Eliza, upon which at some future period, it is proposed to build a Government House. I may say that the Society of the place is hospitality personified; for though their means are somewhat limited, yet they share them with the kindest "good will." Stone and Brick Houses are here also in rapid progress—one of the latter, the property of Captain Irwin the Commandant, was nearly finished when I came away, and a most excellent House I am certain it will prove to be. Stock of all kinds thrive and multiply at a prodigious ratio. Poultry is becoming very abundant, and pigs were running wild in the jungle. Goats would appear to like the climate vastly, for they are so exceedingly prolific that they seldom produce less than three at a birth. The materials for building are excellent. Capital bricks are made at Perth, and the lime Stone is of the first quality. There is also a quarry of Free Stone at Mount Eliza, from which anSettler Mr. Jeckes had nearly completed an excellent Cottage on the South East face of the Hill, where he was rearing vines with every prospect of success., The Canning river joins the Swan immediately below Perth, and I regret much, that I did not visit the locations there. At a short distance above the Town, there are shoals in the River called "the Flats," over which a loaded Boat would have difficulty to pass except at high water. I crossed my Gig however, at all periods of the tide, the Crew merely shoving her over the sand for a distance of about one hundred yards.
I write from memory, but I think the first thriv-