was satisfied, the witness went into the box, dropped the soup-plate on the floor, and declared he would not fib. This was a clincher. The Judge bowed his acquiescence of what certainly cannot be called "irrefragable" logic and received the testimony. The defence set up was that the prisoner was so drunk at the time as to be utterly oblivious of what he did. In charging the jury the Judge put the case as one of murder or nothing; and as for manslaughter, any notion of that kind was to be discarded from their consideration. As to drunkenness, he thought it should be treated as an aggravation, instead of an excuse. The prisoner was found "Guilty," and the Judge, putting on the fatal black cap, (a custom now obsolete), passed sentence of death without hope of mercy. This announcement was received by the prisoner without any visible emotion. In the condemned cell, and heavily ironed, the unfortunate wretch was suffered to remain, as if swinging between life and death, for nearly three months; for, through the unaccountable indifference of the officials in Sydney, the warrant for execution was deferred from week to week; yet to this seeming inhumanity the culprit was indebted for his life, because the Judge, moved by the delay, strongly represented to the Executive that the extreme sentence ought not to be carried out, after all the acute agony the convict must have suffered. Strange to say, the Judge's missive for mercy, and the death warrant, passed each other on their diverse journeys. It was not until the 31st July that the fiat arrived, appointing the execution to take place on the 13th August, an interval which fortunately gave time for a reprieve to be received in response to the Judge's recommendation. The punishment was commuted to transportation for life.
Perjury.—17th July, 1841.
D. C. Simson was arraigned for perjury, arising out of an affidavit exhibited in Chambers on the 13th July, and was an ex-officio information filed by the Crown Prosecutor, by whom the prosecution was conducted, Mr. Barry appearing as Counsel for the defence. The traverser was a member of the firm of Messrs. Dutton, Darlot and Simson, settlers, who were indebted to Messrs. Willis and Co., and proceedings were taken to recover on a bill of exchange for £1000. A process of the Supreme Court issued, to which defendants did not appear, and judgment went by default. A summons was then obtained to set aside the judgment, in support of which the traverser made affidavit that he had never been served personally with any process, nor was any original shown to him. The affidavit was sworn before Mr. Gurner, the Deputy Registrar, and Mr. Robert Cadden (for many years afterwards Clerk to the District Court) clerk to the solicitor of Willis and Co., swore positively that he had served the traverser, in person, with a copy of the Court summons, exhibiting at the time the original, and leaving a duplicate copy for Darlot, one of the other partners. The defence was an inpugnment of Cadden's testimony, and a coloured servant, in traverser's employ, testified that it was to him Cadden delivered two law documents during Simson's absence, which he (the servant) handed to a Mr. Steinforlh, at the time staying at Simson's. The jury returned a verdict of "Not Guilty." In the next issue of the Port Phillip Gazette the Judge was roundly charged with gross partiality in his conduct of the case, whereupon the editor (Arden) was sent for, cautioned by the Judge to be more circumspect in future, and not to forget that there were such things as "attachments."
Conspiring to Defraud Creditors.—20th August, 1841.
D. C. Simson, J. M. Darlot, and H. N. Simson, were indicted for conspiring, by means of a mock sale, to defraud the creditors of W. H. Dutton, one of the partners of the firm of Dutton, Simson, and Darlot. The Crown Prosecutor and Mr. Barry being retained for the prosecution, and no other Barrister being available for the other side, by the permission of the Judge, Mr. F. L. Clay, an Attorney, appeared for the defence, and was complimented from the Bench. This case, from the social position of the defendants, excited no common interest, and the verdict was received with very mixed feelings. Several witnesses were called to prove the sale of certain property to H. N. Simson. Dutton, Darlot, and D. C. Simson were in partnership, and their transactions in stock and other valuables extensive. Simson and Darlot had dissolved with Dutton, and disposed of considerable property without the consent of two trustees, who ought to have been consulted. A bill in equity was filed to restrain the sale, but it miscarried through a
