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

Martin v Mansfield (1830) NSW Sel Cas (Dowling) 793; [1830] NSWSupC 39

election between remedies, libel, criminal libel, Sudds and Thompson case

Supreme Court of New South Wales

Forbes C.J. and Dowling J., 1 June 1830

Source: Dowling, Select Cases, Vol. 2, Archives  Office of N.S.W., 2/3462[1 ]

[p. 313]

[Where a Plaintiff obtained a rule nisi criminal information for a libel, but abandoned that mode of proceeding with notice to the Defendant and then commenced an action for the same libel; Held that the proceedings in the action could not be stayed on the ground that he had elected to proceed criminally, and that he might go on without paying costs on the Information.]

Martin v Mansfield

The Plaintiff had obtained a Rule Nisi for a criminal information for a libel published in the Sydney Gazette.  He afterwards gave notice to the deft, that he did not mean to proceed with the information and brought this action to recover damages

Wardell now moved to stay the proceedings criminally, contending that he was bound by his election as to the course of proceeding.

Forbes CJ. and Dowling J. were of opinion on the authority of Carter v Wardell that all the Court could do was to compel the Plaintiff to Elect his course of proceeding   it was true he had first commenced criminally but before the Rule for any information was made absolute he had abandoned his [p. 314] first proceeding and had gone on with his action.  This he was at liberty to do.

Wardell applied for the Costs for the Criminal proceedings, but Per Curiam we have no power to grant costs in such case.


[pp 318-319]

[Where a party proceeds Civilly and Criminally for the same libel the Court will put him to his Election to go on either way, but will not allow him to adopt both, and if after he has put the Defendant to the expense of preparing to show cause against a criminal information he abandons that course [p. 319] and proceeds in the action he must pay the costs of the Criminal proceedings].

[p. 318]Ex parte Martin in re Mansfield

The party Martin had obtained a rule nisi for a Criminal Information against Mansfield Editor of the Sydney Gazette for an alleged libel the rule had been served and the defendant had prepared to shew cause.  Afterwards the prosecutor brought an action to recover damages for the alleged libel.

Wardell now moved that the Court would put the Plaintiff to his election either to proceed with the action or the Criminal information, citing the case of Carter v Wardell where the same course had been adopted in 1827. in an action and prosecution against the Editor of the Australian.

Keith opposed the motion on the ground that the [p. 319] Court in the case of the King on prosecution of Hall v Hely had held that in such cases the Court was a grand Jury, and referring to the practice in the Mother Country a party could not be restrained from proceeding both Criminally and civilly for a libel.

Per Curiam.  This Court ex necessitate a grand Jury in such cases.  We think it is a reasonable rule that a party should be put to his Election; and thereupon.

The Court on the motion of Wardell ordered Martin to pay the Costs of the criminal information as in the ordinary case on an untenable application of the like kind

Vide Ante Vol 37.p.160.[2 ]



[1 ] See also Sydney Gazette, 3 June 1830.  It reported that Forbes C.J. said that Carter v. Wardell "decided that a party seeking redress by civil action should not be allowed to proceed by criminal information for the same cause, and thereby put himself, by anticipation, in possession of public opinion and his adversary's case". The Gazette also reported that the Court would not make any order on the matter of costs.

See Sydney Gazette, 9 and 16 March 1830; Australian, 10 and 17 March 1830: in the absence of the plaintiff overseas, the Supreme Court allowed a relative to sue on his behalf.  See also Dowling, Select Cases, Vol. 2, Archives Office of New South Wales, 2/3462, p. 285.

This case led to further litigation against Mansfield.  Mansfield was found guilty of contempt, and was then sued for defamation by another party: Rodd v. Mansfield, 1830.  See also Sydney Gazette, 25 September 1830; Australian, 24 September 1830 (Cuthbert v. Mansfield, verdict for the plaintiff of 40 shillings in an action of libel concerning the reputation of a trader).

[2 ]With minor variations, the first part of this report (pp 313-314) was taken from Dowling, Proceedings of the Supreme Court of New South Wales, Vol. 37, Archives Office of New South Wales, 2/3220, pp 160-161.

The trial was reported at great length in the Sydney Gazette, 26 June 1830.  Martin was a former medical practitioner at Parramatta who left the colony to become editor of the Bengal Herald.  The Sydney Gazette attacked him for reprinting the allegations of the Sydney Monitor on the Sudds and Thompson affair.  The Gazette also made imputations against the plaintiff about his charges as a medical practitioner. The plaintiff was awarded damages of £50.  See also Australian, 25 June 1830.

Published by the Division of Law, Macquarie University