to Cunninghame, "wretches, steeped to the lips in crime, self-convicted perjurers seeking to earn the price of blood." The evidence of these two witnesses as given to the Court was compared with their depositions at the preliminary investigation, and the discrepancies indicated. An alibi was set up for Beswicke, who on the day of the alleged massacre was away on the station of a Mr. Brock, attending to his business. The whole charge was declared to have been trumped up by "conspirators banded together in perjury, linked together by the bond of mutual guilt, and joining together in a well-concocted story, to swear away innocent life, and earn a blood-stained reward." At this stage the prosecution was stopped by the jury intimating that they had agreed to a verdict of "Not Guilty." The Judge, in directing the discharge of the prisoners, remarked that it would have been an everlasting disgrace on the Government had this case not been investigated, and if the prisoners had been convicted he should have passed sentence of death upon them without the slightest hope of mercy.
It was reported that two other parties supposed to have been implicated had cleared out for England, and had there been a conviction, warrants would have been despatched for their apprehension.
False Imprisonment by a Judge—24th Novermber, 1843.
Ebden v. Willis.
An action for trespass by false imprisonment; damages laid at £5000. Declaration contained one count. Pleas, the general issue and justification—"For that defendant, as Resident Judge of Port Phillip, did in the lawful exercise of his authority imprison the plaintiff for constructive assault." Counsel for plaintiff, Messrs. Raymond and Barry; for defendant, Mr. Williams.
The suit arose out of the circumstances detailed in Chapter VII, pp. 76 (" Eccentricities of Judge Willis,") when Carrington, an Attorney, attempted to serve an order of the Supreme Court of Sydney on Judge Willis, in Bourke Street, and the Judge, when either struck or touched by the papers, gave Carrington into custody. The plaintiff (Ebden) as the friend of Carrington, was with him on the day of the occurrence, and the Judge put him along with his companion for having, as he conceived, committed a constructive assault. They were both detained in the lock-up for a short time, and then brought before the Police Court, where the charge against Ebden was withdrawn. After the plaintiff had proved the facts, Mr. Williams submitted the following non-suit points:— 1. That no action could lie against a Judge acting and exercising his functions within his proper jurisdiction. —2. That the plaintiff should have given notice of his action, so that if wrong were done, defendant might have an opportunity of tendering amends. —3. That the action should have been commenced within six months of the alleged trespass.
His Honor, Judge Jeffcott, having signified his intention of sending the case to the jury, a defence was raised on the merits in effect that Ebden had gone out of his way in backing up Carrington; and that the attempted personal service in the streets was a trick to produce a scene, and so humiliate the Judge. Before the occurrence in the street, the conduct of both Ebden and Carrington in the Supreme Court had been most offensive.
In summing up, the Judge commented on the want of courtesy in not communicating by letter with Judge Willis as to his accepting personal service. Improper feeling had been displayed on both sides, and there was no evidence that personal service of the legal process was necessary. If the jury were of opinion that the throwing of the order at the Judge was merely a service of it, they ought to consider that no assault had been committed. It was also a matter for consideration as to what power the Judge possessed to commit those persons to prison, for a Judge walks through the streets as any other private individual, and has no right to order into custody anyone who may be personally rude to him. If the parties went simply to serve an order, there was nothing offensive in it; and if some person had been deputed to accept service for the Judge, the degradation of the street scene would have been avoided. If they thought personal service was necessary, then the Judge brought the trouble on himself. It was for the jury to weigh all the facts submitted to them, and consider whether one or both of the parties (Carrington and Ebden) intended to commit an assault; and also how far the Judge was justified in sending them to prison, though this was rather a question of law.
