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Decisions of the Superior Courts of New South Wales, 1788-1899

Pashley v. Proprietors of Monitor Newspaper [1827] NSWSupC 13

civil procedure

Supreme Court of New South Wales

Trial, 7 March 1827

Source: Sydney Gazette, 8 March 1827

YESTERDAY. --- Pashley v. the Proprietors of the Monitor newspaper.[1 ]  The defendants had not pleaded, and one of them (E. S. Hall, Esq.) moved the Court to be let in to plead, on the grounds, that the new Rules of Court, being as yet little known, the error of the defendants, in neglecting to plead to the exact hour was pardonable, especially as they were ready to go to trial on the general issue, and in no respect wished to place the plaintiff on a different footing to what he would have been if the plea had been recorded in time.  He also observed that two affidavits had been put in by him, shewing that a negociation [sic] had been going on at the time the plea should have been filed, by which the defendants had been thrown off their guard, in trusting too much to the courtesy of Mr. Solicitor ALLEN, attorney for the plaintiff, who, they expected, would not have been so sharp in his practice, as to take the advantage which it appears by the new Rules he was entitled to take, namely, to record the default of the defendants without giving them notice.

Dr. WARDELL and Mr. Solicitor ALLEN argued against the motion on various grounds, chiefly of a legal nature.

The learned JUDGE put it to Mr. HALL that as he admitted he had committed a misnomer in his newspaper, he did not see how he would gain any thing even though he were let in to plead.

Mr. HALL observed, in reply, that he had witnesses in Court to prove that the plaintiff seemed quite disposed to settle at all times, except those when he returned from consulting Dr. Wardell and Mr. Allen; that, consequently, he should impress the Court thereby with a conviction that the present action was an action by the two latter Gentlemen, rather than of the ignorant plaintiff, an obscure tailor, who could neither read nor write.  And Mr. Hall's impression was, that on such evidence the Court would be disgusted with the action, and nonsuit the plaintiff, whereby the defendants would save the costs.

DR. WARDELL rose in great indignation, at what he called, the calumnies of the defendant, Mr. Hall, and denied his allegations and insinuations in toto.

The Learned Judge ruled against Mr. Hall's motion.  Judgment by several consent, against the defendants. --- Damages one shilling, with £21 costs.

The circumstances of the case were there.  The Monitor, in recording an examination and commitment of one Pashfield,[2 ] for a felony, spelled it Pashley.  As soon as the mistake was made, word was sent to Pashley of the sorrow of the proprietors for the error.  He pretended he would accept an apology, and took one in writing, which he showed to Dr. WARDELL, but which he would never return to be inserted.  Mr. Hall however published a new one, as well in the Gazette as in the Monitor, and explaining the cause of the mis-nomer.  Mr. ALLEN soon ran up the bill to £10, and then offered to settle; Mr. Hall felt aggrieved at this, and said the whole costs would be only £20, and he therefore would defend himself as he conceived that, having hastened to apologise, Mr. ALLEN had no right to advise an action.  Whilst Mr. HALL was thus negotiating, the last day for pleading slipt by, to the alleged delight of the plaintiff's lawyers --- they secured a judgment --- refused to let the defendant in to plead, but to shew their opinion of the righteousness of their own cause, they consented to let Pashley have a shilling, while the lawyers' bill amounted to £20.  One shilling for the injured party, and £20 for the lawyers!


[1 ] This report of the trial was copied, without comment, by the Monitor, 9 March 1827.  See also Monitor, 6 April and 12 June 1827.

[2 ] See R. v. Pasfield, February 1827.

Published by the Division of Law, Macquarie University