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

R. v. Snodgrass [1841] NSWSupC 99

duelling - gentlemanly conduct

Supreme Court of New South Wales

October 1841

Source: Sydney Herald, 20 October 1841


            The SOLICITOR-GENERAL moved for a rule on the affidavit of James King, Esq, near Raymond Terrace, calling on Lieutenant-Colonel Sned[g]rass to show cause why a criminal information should not be filed against him for having, in the month of February last, incited the deponent to fight a duel. From the affidavit and letters read it appeared, that the deponent and defendant are neighbouring settlers in the vicinity of Raymond Terrace. That in January, 1840, it was mutually agreed to erect a boundary fence between the lands of deponent and defendant, which was done to the satisfaction of each of the parties; but about February last, the deponent wrote to the defendant requesting him to pay his proportion of the cost of completing the said boundary fence, and also complaining that the defendant's servants had broken down the fence, instead of passing through a gateway which had been constructed for the mutual convenience of both parties. In this letter from the deponent a complaint was also made of the conduct of some members of Colonel Snodgrass' family, particularly against the Colonel's son William. In reply to this communication the defendant wrote [t]h[e] deponent complaining that he had not consulted him in the first instance as to the mode [to] which the fence was to be erected, and intimating [that] the conduct of the deponent had been such as to preclude him (Lieut-Col. Snodgrass) from giving the deponent any explanation except in the usual way, and stating where he was to be found for that purpose. The deponent sent the whole of the correspondence to this Excellency the Governor, who after some time returned an answer to the deponent, informing him that he had read deponent's statement and the correspondence, but did not conceive that it was a case in which he could interfere. Some time after, the deponent met with the defendant, when the latter accused him of writing lies to the Governor, and threatened that if he found him telling or writing any such lies about him that he would apply his stick to the back of the deponent. The Solicitor-General concluded by informing the Court that the present was the first opportunity which his client had had of coming into Court.

            A rule nisi, calling on the defendant to show cause why a criminal information should not be filed against him, was granted.

Dowling C.J., October 1841

Source: Sydney Herald, 1 November 1841

            In this case a rule nisi had been obtained on a previous day, by the Solicitor-General, calling on the defendant to shew cause why a criminal information should not issue against the defendant, for endeavouring to incite the plaintiff to fight a [duel].

            [It will be] necessary to advert to the terms of the affidavit on which the rule nisi was granted, in order that the public may understand the language of the defendant's counter affidavit. Mr. King, the plaintiff, in his affidavit alluded to, had set forth that certain disagreements had arisen between the parties respecting the fences of their respective properties, and that in violation of King's repeated requests to the contrary, Snodgrass's sons and servants had broken down the plaintiff's fences. That on King requesting Snodgrass to restrain his sons and domestics from these practices, Snodgrass had written a letter to the plaintiff informing him that he had uttered falsehoods within his own knowledge, and that he (Snodgrass) should remain at home the whole of the day following, (that on which the letter was sent), in order to receive any answer the plaintiff might think proper to return to it. Mr. King, conceiving that the letter had been written with the object of inciting him (King) to fight a duel laid a copy of the correspondence before his Excellency the Governor, that his Excellency might decide, whether a party sending such a letter was a fit person to be a magistrate of the Colony, His Excellency returned for answer to Mr. King, that the case was not considered by his Excellency to be such an one as called for his Excellency's interference. The knowledge of this communication with the Governor, coming to Colonel Snodgrass's ears the latter, according to Mr. King's affidavit, afterwards on occasion of meeting with Mr. King in the public road, shook a stick at him and exclaimed, "If you writ any more such things of me to the Governor, you blackguard, I will beat you with this stick." These, and other provoking matters being set forth in the affidavit in question, the rule nisi had been granted.

            The SOLICITOR GENERAL now moved the Court to make the rule absolute.

            Mr. FOSTER appeared to shew cause against the application, and, before proceeding with his argument, took a preliminary objection, to the effect that the rule did not set forth the grounds on which the application was made. The objection being overruled, Mr. Foster then read an affidavit of Snodgrass, averring that the letter alluded to byKing in his affidavit, on which the rule nisi was granted, was not written by him (Snodgrass) to King with the intention of provoking him to fight a duel, and that he, (the deponent, Snodgrass,) did not think that it would provoke him to fight a duel (a laugh).

            The CHIEF JUSTICE. - Did Snodgrass mean then, that Mr. King would bear any amount of inciting, without its taking effect?

            Mr. FOSTER proceeded with the affidavit, with which the whole court seemed to be much amused. It further set forth that the expression respecting "beating with a stick" (mentioned in Mr. King's affidavit), when made, was not made with a view of producing a duel, and that the deponent (Colonel Snodgrass) believed from the language of Mr. King in answer, "Two can play at that game," as well as from his manner no duel would be likely to be the result.

            Upon the conclusion of the affidavit, their Honors suggested, that if possible, an amicable adjustment of the differences between the parties should be come to, which was attempted by their learned counsel, Mr. Foster for Colonel Snodgrass, and the Solicitor General with Mr. Windeyer for Mr. King, without the desired effect.

            His Honor the CHIEF [JUSTICE] then said, tha[t] the defend[ant's] affidavit [had not disclosed] matters sufficient to prevent the applicant having his criminal information, and ther efore the information issued accordingly.

Published by the Division of Law, Macquarie University