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

Carrington v. Hogue [1840] NSWSupC 64

duelling, assault, gentlemanly conduct, Melbourne, Port Phillip District, Melbourne Club

Supreme Court of New South Wales

Willis J., 22 October 1840

Source: Sydney Herald, 24 October 1840[1]

Before Mr. Justice Willis and a Special Jury.

            Immediately before the case of Carrington v. Hogue was called on, his Honor said that, as he saw there was a professional gentleman, one of [LINE OMITTED] the word assault being [?] cessions of the parties, as by their going to trial; another reason why he wished if it were possible to get it settled in this way was, that, by doing so, there was then no obstacle thrown in the way of the parties again becoming friends; besides it was for the honour of the profession that, if possible, this mode of settling it should be adopted.  Mr. a'Beckett for the plaintiff, said that his client had no objection to its being settled, as his Honor had suggested, as it was not costs nor heavy damages which his client was desirous to obtain, but merely that compensation to which he was entitled for the manner in which he had been treated, and therefore, he would consent to receive an apology for his client.

            The Attorney General said he could not think of giving any apology, but he would not object to receiving a verdict for the defendant by consent.  As no arrangement could be come to, the case was called on.

            Mr. a'Beckett commenced the proceedings, and gave an outline of his client's case, at the same time informing the Jury that it was likely that the counsel for the defendant would tell them a long story about some occurences which had taken place a month or six weeks before the assault complained of had been committed, but that would not at all weaken his client's claim for redress, as he had not only been assaulted, but also insulted in the grossest manner in the public street of Melbourne, where he was a respectable attorney, having a very thriving practice in that place.  He also deemed it but fair to inform the Jury that it was not the actual pain which his client had suffered from the assault, although even that was a matter for the Jury to take into their consideration, especially in connexion with the fact (which he should prove to the satisfaction of the Jury), that on the day when the assault was committed, he had just risen from a sick bed, and had the insulting words, "You are a coward, a poltroon, and no gentleman," addressed to him, which to a person in a delicate state must have created no small pain of mind, and at the same time was struck twice over the back with a horsewhip by the defendant, and told to consider himself horse-whipped, in the presence of several respectable people, and in the view of others.  He also through that his client had acted as he ought to have done by coming into Court for redress rather than going out to be shot at, or by shooting the defendant - which was a mode of adjusting differences that might be fashionable, but which he (Mr. a'Beckett) could not approve of; he had come into court not only to receive a compensation for the injuries he had received, but also to obtain protection in future.  He had also to warn the jury against being led away by any of the fine flourishes by defendant's counsel, who would probably tell them to have no sympathy for the plaintiff, as he was an attorney - and he expected to hear him called a beggarly attorney, and all such things; but still he thought that his coming forward and offering to accept of an apology showed that it was not the defendant's money that was wanted, but that redress to which his injuries and his rank as a gentleman - which was also the status of the defendant - entitled him, and which he had laid at £1000.

            The circumstances of the case as they came before the court appeared to be as follows.  In the beginning of April, a report was put in circulation at Melbourne, where the parties reside, that a Mr. Browne, an intimate friend of the defendant, a director in one of the banks, and who was then absent, had advised influential parties in Sydney to curtail the discounts in Melbourne, and that his object in doing so was to advance his own private purposes at the next land sale.  The defendant heard the above statement from a Mr. Baxter, who gave up a person of the name of Rucker as his authority.  On the following morning defendant, accompanied by a Mr. Campbell, called on Rucker to ascertain how he had put such a statement in circulation respecting Mr. Brown, when Rucker distinctly denied ever having made any such statement; Mr. Baxter was then returned to, who appointed a Mr. Hunter as his friend, to wait with the defendant on Rucker, in order to get an explanation, when Rucker again positively denied having made any such statement to Mr. Baxter, and they were afterwards referred to the plaintiff as Rucker's friend.  But subsequently the plaintiff gave defendant a written document admitting that the statement had been made to Baxter by Rucker, respecting Brown.  The defendant had employed a Mr. Hawdon, at that time resident in Melbourne, to get the same information from plaintiff, but he failed in doing so, the plaintiff telling him that all Mr. Hawdon had to do was at once to name the time and place for a meeting.  After the admission had been obtained and some letters read, Hawdon told the plaintiff that with such information he could not think of allowing the defendant to meet a person who had been guilty of such conduct as Rucker had been, and the whole circumstances were subsequently laid before the Club at Melbourne, to which all the parties belonged, and Rucker was expelled for his conduct.  The plaintiff, on the refusal of Hawdon to allow defendant to meet him, immediately took steps for posting the latter, which was done with all the usual formalities, but the Club interfered and a reconciliation was brought about between the plaintiff and defendant, and every thing appeared to have been set to rights till the 17th of June, when it came to the defendant's knowledge that plaintiff had been going about among the respectable portion of the population of Melbourne, and representing that the defendant had refused to meet him on Rucker's affairs, alleging as an excuse, that he (defendant) was no fighting man.  The defendant applied to the plaintiff for an explanation, but all the satisfaction he could obtain was, that the plaintiff had probably been misunderstood, as he had said that a brother attorney had declined to meet him, (Carrington), on the ground that the said attorney was no fighting man.  Evidence was however obtained that the plaintiff had made the expression reflecting on the defendant's courage; and the necessary steps were taken by the defendant and his friends to get either a retraction of the imputation, or a meeting brought about; the latter was agreed upon, but after the defendant had waited for him between four and five hours after the appointed time, there was no appearance of the plaintiff nor any one for him.  The extraordinary conduct of Carrington was then brought before the club, and the ceremony of having him horse-whipped, and posted as a coward, and no gentleman, was arranged and carried into effect by the defendant, accompanied by a friend, proceeding to the police office, armed with a very small lady's riding whip; and on the plaintiff walking out of the door so as to be in sight of the Club-house, where a number of the members were standing to see the sport, the defendant went up to him and said, "you are a coward, a poltroon, and no gentleman;" at the same time the defendant, a very tall gentleman, raised the whip over the shoulder of the plaintiff, and flourishing it told him to consider himself horse-whipped; on which the defendant said "that will do, that will do," and immediately told an attorney's clerk, named Edwin Leadbitter, to take notice of what been done; after which, the defendant and his friend returned to the Club-house, where there were a number of the members enjoying the fun.  The only witness called by the plaintiff, was the clerk he called on to take notice, who swore that he distinctly heard and saw two light strokes given on the back of the plaintiff by the defendant, who had several days before been confined to his room by indisposition.

            After the plaintiff had closed his case, His Honor enquired if there was no possibility of getting the affair amicably settled; but the same terms being insisted on by each party, the Attorney General began the defence, by telling the Jury that the defendant in the present action was a gentleman moving in the first rank of society, being at the head of the Melbourne Club, which had been formed under his auspices, in order to promote peace, harmony, and good fellowship in the district, as well as to increase the comforts of the members, and extend the practice and courtesies of respectable society, and also for adjusting such in an amicable manner as from time to time occur in all communities.  On the other hand, the plaintiff was a gentleman by Act of Parliament, being one of the Attorneys of her Majesty's [LINE OMITTED] aware, that Mr. Carrington was also a fighting attorney, as he thought would be made out by the evidence he should call - and proceeded to go minutely through a detail of all the transactions as they had occurred, and concluded by stating that although he was no advocate for duelling or fighting, yet it was necessary for the good order of respectable society, that some means should be resorted to in order to punish those who acted as the plaintiff had done; he had like most bullies been the trumpeter of his own courage, he had boasted that one of the profession had declined to meet him being no fightingman; he had also been very anxious to get the defendant and thehonourable Mr. Rucker to exchange fire, and he had even gone the length of posting the defendant - but when all was gone through he at last showed the well-known white feather and refused to stand fire.  He complained of an assault which had not been committed - and there was no chance of his committing one.  As to an insult he was at a loss to discover in what way it was possible to insult him; he had no doubt been treated according to his merits; and as to damages, it was impossible that he had ever expected to get even that dear little coin which was made of copper and impressed with the monarch's likeness, and which was frequently the bone of contention in the Supreme Courts of the realm.  But whatever opinion they might have of the plaintiff's courage, no one could doubt his caution and prudence, as he had brought the present action evidently for the purpose of bringing "grist to the mill;" being an attorney he could, with a little of Mr. a'Beckett's eloquence, be his own lawyer, and a chance of at least £200 costs, with one farthing damages, was too good to be thrown away; besides his chance of loss was so small should he lose the day, that it might be compared to "heads I win, harps you lose."  He thought that the jury were too good judges of the state of the law in regard to horsewhipping, to give him a verdict.

            He then called several witnesses, who distinctly swore that the whip had not touched the defendant; that it had been previously arranged that it should not touch him; and one of the witnesses deposed that he had been obliged to tell the plaintiff he had uttered a lie, as he did not think he would have comprehended his meaning had he used a more refined term.

            His Honor, in putting the case to the jury, left it to them to say whether the plaintiff had been struck by the whip or not; and if of opinion that he had been struck, then to give him such damages as would teach young men of respectability not to provoke one another to be guilty of breaches of the peace, or render popular the unchristian practice of duelling.  At the same time the previous conduct of the plaintiff, and the provocations he had given, were proper subjects for them to consider, as going in mitigation; and if no stroke had been struck, then they were to look at the intent and deal with the matter accordingly.  He also laid down the law in the case, when the jury retired for a few minutes and returned a verdict for the defendant, which caused a great deal of merriment in the court, which was crowded during the trial.

            Counsel for plaintiff, Messrs. a'Beckett and Darvall, Attorney Mr. Minithorpe; Counsel for the defendant, the Attorney-General, with Messrs. Windeyer and Darval, Attorney Mr. Turner.

Notes

[1]          See also Australian, 24 October 1840.

 

Published by the Division of Law, Macquarie University