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

Wilson v. Christie [1841] NSWSupC 57

assault, civil - gentlemanly conduct - Australian Club

Supreme Court of New South Wales

Stephen J., 10 June 1841

Source: Sydney Herald, 12 June 1841[1]


            MR. FOSTER opened the pleadings.

            The ATTORNEY-GENERAL stated the case - He said that this was an action of assault, committed upon the plaintiff by the defendant under circumstances of unprecedented violence and atrocity; and he besought the Jury to keep their minds uninfluenced by the thousand tongues of slander which had been busy for the purpose of prejudicing the plaintiff's case; he besought them to direct their minds entirely and exclusively to the evidence by which they had sworn, well and truly to try the case before them; he entreated them to be calm and collected, in order that they might return a just and unimpassioned verdict. The case had excited extra-ordinary interest from its very nature, and also from the rank of the parties which was about equal; in fact, before the transaction which was the subject of their enquiry, the plaintiff and the defendant, who were both military men, had lived upon amicable, if not friendly terms with each other; but an election for the office of Secretary and Treasurer having taken place at the Australian Club, and they being the candidates for that office, a contest ensued, and a rivalry arose between them, though still the interchange of gentlemanly civility was continued by each towards the other; and no hostility was exhibited or felt at heart by the plaintiff; however, on the 5th of May last, as the plaintiff was taking his ordinary repast at half past five o'clock, in the Club-house, which in consequence of the absence of his amiable family in the country, he was in the habit of frequenting to enjoy in his declining years, the conversation and society to which he had been most accustomed, there, as if in the sanctity of his own domestic home, while he was seated at the table defenceless, and as it were prostrate, the defendant, and Dr. Dobie enter the room, and before waiters, friends, and strangers, they committed an assault upon the plaintiff, with an unmanly and unprecedented ferocity, which should be [clearly proved.] He the [A]ttorney-G[eneral] could bear his testimony to the previous high character of the defendant and Dr. Dobie, and if he had previously heard of any similar outrage, and had been asked his opinion as to who were the most likely to commit it, he would have thought that they would have been the last to perpetrate such an outrage; but the jury would find that the evidence proved, that in his transaction, the defendant's conduct at least, admitted of no palliation; it was wholly unworthy of a man, of a British officer, and of a gentleman; for, independently of the other circumstances under which the assault was committed, no opportunity for explanation was afforded to the plaintiff which even if real provocation had been given, ought to have been afforded; but, which, should have been abundantly given, if, as in this case, the provocations were only imaginary, and arising from some perverted and hidden construction of a harmless joke. It would seem as if the defendant had some extraordinary idea, some unaccountable notion, that the plaintiff had offered an insult to a lady, against, whom in reality, he had never borne the least ill will, whom he had never harboured one thought of offending, and whom he, no less than his counsel, the Attorney-General, believed to be as pure and as virtuous as her warmest admirers could wish; he said this, for he understood that a troop of critics were to be produced, and that a gallant Major, who was said to be the prototype of "the illustrious Duke," and who was also famed for his classic lore, was to be examined by the defendant, for the purpose of attributing an offensive meaning to an occult and obscure passage, which it would puzzle even the best scholars to construe; but he did not apprehend anything from this formidable host, fore he was satisfied that the jury would not be led away by the sophistry of any number of pedants, nor by the classic erudition of the gallant Major, whose time might be perhaps more profitably employed in hunting down his friend "Jacky Jacky," than in attempting to expound such a passage as that to which he referred. - (Mr. Justice Stephen here interrupted the learned Counsel, and said that, as the plaintiff had disclaimed any idea of offending in the way that was attributed to him, perhaps both parties might concert to some accommodation, which would prevent any further exposure of the circumstances connected with the action); but the plaintiff's counsel declined adopting such a course, and the Attorney-General proceeded. - His client declined entering into any accommodation now, for he had been treated all through with scorn and ignominy: every means had been resorted to for the purpose of blackening his character, and of insulting his feelings, and therefore he relied upon the jury of his countrymen to make him some atonement for the defendant's outrage upon both. The jury would consider all the circumstances under which the assault was committed; the dastardly nature of the attack: the youth and athletic vigor of the defendant, the suddenness of the attack; the defenceless and prostrate state of the plaintiff, who had been recently enfeebled by an apoplectic stroke: the interposition of Dr. Dobie after the assault: the retreat of the defendant like "a soldier tired of war's alarms:" the public announcement of Major Nunn's quarters: the fact of the defendant and his "friends" being taken there, indisputably proving that the defendant never had any idea of giving the plaintiff what he called "gentlemanly satisfaction," and that the defendant's conduct throughout was (unmanly, dastardly, premeditated, and in no way the result of a sudden ebullition - the jury would consider these things, and, remembering that, if, by the assault, the defendant had killed the plaintiff, it would have been murder; while, if, at that moment, the plaintiff had, with a knife, ripped open the defendant's bowels, it would have been, at the most, manslaughter - remembering this, and that the eye of the colony was fixed upon them, they would firmly and unhesitatingly give such damages as would help to restrain [acts] like the defendant's, and to atone for the outrages which he had inflicted upon the plaintiff.

            The de bene case examination of Mr. Morris, who was admitted to be out of the Colony, was then read. It proved the assault almost exactly as the witnesses for the defendant afterwards described it; but it stated that the blows were given more immediately after the defendant had entered the room where the assault was committed, and also that after the assault the collar of the plaintiff's shirt was saturated with blood.

            Captain Innes was then called, and examined by Mr. Foster. I am superintendent of the civil police; on the 5th of May last, at nine o'clock at night, I went to the Military Barracks, George-street, and apprehended the defendant myself, at Major Nunn's quarters with Major Nunn and Dr. Dobie; I took a couple of glasses of wine with them; it was on the table; they were at Major Nunn's quarters; I saw a suspicious looking mahogany case on the sideboard, but I saw no pistols.

            Cross-examined by the Solicitor-General - I went twice that evening to look for Col. Wilson; I had information where to find the parties; and after arresting the defendant I went to look for the plaintiff, at his own house and at the Club-house, and could not find him; I first heard of the quarrel at nine o'clock, and between half-past five and nine I had done nothing, for I knew nothing of the assault; I did not expect that there would be an assault, but when I heard of it I was not surprised.

            Re-examined - I had been very much engaged that evening; I found the defendant, Major Nunn, and Dr. Dobie, when I went to look for them.

            The plaintiff closed his case with this evidence.

            The SOLICITOR-GENERAL then addressed the Jury. He said that his learned friend had endeavoured to inflame them with one of his usual elaborate and poetical speeches, reflecting upon parties and relating to circumstances which had nothing to do with the question which the jury had to try. The Attorney-General had borne his testimony to the high character of the defendant for gentlemanly urbanity, and no one could question his right to that character, for even in all his military service he had never been involved in a case like this; but what should he (the Solicitor-General) say of the character of the plaintiff? Why, only this, that he had been first Police Magistrate, and that he was so no longer: that fact was enough to testify for the plaintiff, and - giving him all the benefit of the doubt in which his removal could be involved - still it was enough to establish his character. The defendant did not deny the assault; he even admitted that it might have been severe; but he entreated the Jury to look to the provocation, and then to say whether it was too severe. It would appear to them that on the 11th of March last the defendant was elected to the office of Secretary and Treasurer to the Australian Club, and that from that time forward the plaintiff began his covert attacks upon the defendant, through the newspapers. On the 24th of March, and the 3rd of April, he published two of these attacks; but so long as the plaintiff confined his attacks to the defendant himself, they were treated with the contempt which they merited, and it was only when the article of the 5th of May was published that the defendant was moved to inflict upon the plaintiff that chastisement which he would have been unworthy the name of a man if he had not inflicted, after such provocation. It was on the afternoon of the 5th of May that a friend pointed the defendant's attention to the article in the Free Press of that day. He glanced his eye over it, and what was the first thing to strike him? Why, at once "Cornua CRISTAE" attracted the notice of his eye, and outraged all the feelings of his heart. What was he to do? to sit down, and fold his cravat, and ponder on the course that he should follow? He immediately rushes to the office of the paper: they announce to his agonized mind that he must wait four and twenty hours to learn the name of the assassin of his peace; - he prevails upon their humanity to tell him in a few hours; they promise to send the intelligence to the Club house. He returns to the house of his friend and there awaits the promised intelligence; his friend, Dr. Dobie, goes to receive it, and returning announces that Colonel Wilson is the author of the article. He hurries, in all his excitement and agitation, to the place where he may find the assassin -- Dr. Dobie follows to calm his feelings, not by concert to protect him from retaliation; he finds the author of his misery eating his cutlet, exulting and feasting. He says that an article had that morning appeared, reflecting upon is wife; he is answered by a [? has there?] He utters an aspiration to the purity of her in whose virtues his heart is centered; he denounces the only villian who had ever dared to defame her, and, with a riding whip, strikes two hearty blows upon the head of the heartless ruffian. And this was what was now sought to be magnified into an atrocious assault! The jury would recollect how the law peculiary cherishes the relation of husband and wife, so that if a husband apprehend an adulterer in the act of adultery he may stab him to the heart; what then might not be done to the villian who would affix an indelible stain upon her character, a stain that was to be circulated through every corner of the world, and to be disseminated amongst every class of its people? But if that stain was to be affixed to one pure and spotless, fair and lovely, against whom the breath of slander had never breathed, nor the tongue of calumny never whispered, what punishment could be beyond the deserts of the traducer in such a case? what chastisement beyond the measure of his villainy? And could, the jury, for one moment, doubt the Meaning and application of the Cornua CRISTAE? he cared not what interpretation might be given to the passage by the counsel for the plaintiff, or what was the application of the lines in the article or what was their meaning in the original; all he looked to was the meaning which every common reader of the paper should attach to them, and which he defied any such reader to avoid connecting with cornua cristae; the counsel for the plaintiff might attempt to explain it as they could, but it was obvious to every one that that was the palpable meaning. His learned friend was fond of a Parliamentary anecdote, and there he would remind him of the report which was once given of one of "Cruelty Martin's" speeches in the House of Commons which was reported in italics; the reporter said that the words were all correctly reported but he had nothing to say when Martin asked if he had spoken in italics? So he, the Solicitor-General, would ask was the original of these lines in italics? The learned gentleman then read two extracts, one to the effect "that the gallant Colonel was lately presented with a silver snuff-box, which was filled with Prince's mixture and Irish blackguard," and the other "to shew that he was sent from South America in consequence of some traitorous conduct of his there," and as no one could doubt as to the person to whom these things applied to, neither could any one doubt as to the true application of the words in the article of the 5th of May. Yes, they were too plain to be mistaken by any one; they were found and applied for their hateful purpose by him who knew well that upon so fair a creature no spot or stain could be hidden; they were applied by him who was envious of the fortune of the man whose happiness he knew to be centered in his domestic home and whose peace could be only blasted by throwing a stigma upon her who gave all the charm to that home that was the only object for which the words were published, that was the only effect which they could produce, and therefore the defendant was more than justified in the trifling vengeance he had wreaked upon the envious and heartless destroyer of all that he held most dear.

            We have given a very meagre outline of the learned gentleman's most eloquent speech.

            The following is the article as it was subsequently proved:

            "We hear that there was a new condition attached to the appointment of secretary two or three days before the election which some persons supposed to have arisen out of the partialities, attributed very unjustly no doubt to the exclusive committee. The candidates ere informed that they must produce two thousand pounds, or security to that amount, and that that this communication was made to one of them at least, they say, only two days before he was called upon to produce this sum. He and others thought at the time that this was done for the purpose of getting rid of him as a candidate, as it was reported that he had experienced some losses and might be found unprepared. For the day of election, however, it seems no mention had been made of the two thousand pound or the bond to that amount; perhaps it is etiquette to notify the matter to members until the general meeting, and it is to be hoped that in order to avoid animadversion the committee will be prepared to shew that two thousand pounds have been lodged with the bankers of the club or that two householders with £2000 have entered into securities required from the less favored candidate and the bond was signed before the new secretary entered upon his functions. It may be well to show at the same time that none of the committee have themselves laid the new secretary under obligations of this nature, which only give a colour for believing that not only a partiality did exist but that these securities went to serve an humble servant of the committee but not the club. It does seem absurd also to the uninitiated like ourselves who only glean a little information now and then from dissatisfied members that no security was ever required from the Club officials as long as there was any money belonging to it, but that £2000 should be called for as security for the Treasurer as soon as the money was all gone and large debts announced; and at the very time it was made known that even the monthly payments to the waiters had been suspended for want of funds. It was also a droll reason given for demanding those securities on the very day the new officials declared this state of things, that as long as the Treasurer had no salary there was no danger of robbing the Club, but as soon as the situation produced him a comfortable living he might very possiblyrun away with the spoons or the mull, for money there was none. Such reasons for the exaction of the new conditions could hardly be supposed to have emanated from an Anti-Irish body, for the whole thing is a complete Irish bull from beginning to end. We may be rash though in taking the bull by the horns, but it is our way.

                                                "In spite of the bull,

                                                 We'll sniff at the mull,

                                                  Till our brain shall grow dull,

                                                  And our sheet become full."

                                                                        MOORES IRISH MELODIES.

-         Si mul aptat habendo

Ensemque clipeumque et rubrae cornua CRIST[I]E.


Frederick William Bigge examined by Mr. WINDEYER - I arrived in this country about two years ago; I belong to the Australian Club; I dined there one day in May last with Mr. Moreing; the plaintiff was at the same table dining; I recollect Major Christie coming into the room; we were speaking of an article which had that morning appeared in the Free Press, about the late election at the Club; Colonel Wilson was laughing and chatting; when he entered the room Major Christie addressed Colonel Wilson and said, that an article had that morning appeared in the Free Press, reflecting upon Mrs. Christie, of which he understood Colonel Wilson was the author; Colonel said, has there? Major Christie said that his wife was as fine and as virtuous a creature as ever breathed; I don't recollect if any thing more was then said; the defendant said that he had gone to the Free Press Office and had learned that he Colonel Wilson was the author of the article; the defendant then said that Colonel Wilson was a dastardly villain, and struck him twice with a gentleman's riding whip; Doctor Dobie followed the defendant behind; when the blow was repeated the plaintiff put his hand upon his head to guard off the second blow, at the same time rising from the table; when the plaintiff rose Doctor Dobie interposed, and said that there should be no fighting there; Doctor Dobie said that if the plaintiff wished to see the defendant at any other place he could find him at Major Nunn's quarters; Doctor Dobie and the defendant then left the room; the plaintiff said I suppose they think they are going to spoil my appetite and sat down to the table; I shortly afterwards left the room; I had not seen the article at the time; I have seen it since; Moreing first spoke of it; he said that the article had hit the defendant hard; this is the article; I think it alludes to the defendant in connexion with his wife, from the way in which it is printed, notwithstanding the other allusion to which the quotation refers.

            Cross-examined by the ATTORNEY-GENERAL. - The simul is printed with the first syllable in small characters, and the last syllable apart and in small capitals; I think the passage is doubtful; it has been translated in two or three ways; I [translated the passage thus:] "upon receiving possession of his sword and shield he fits them on together with the forks of his flaming crest;" I have been at a University; I think cornua means the crest of the helmet; when I look at Heyne's Virgil to which you have referred me, I now believe cornua to mean the plume; I supposed it distinct from the cone; I think the mul in simul refers to the mull of the club; there is one there made of a ram's horn; cornua might be referred to the mull; which I suppose is in charge of the defendant; there is no direct or indirect reference to a lady in the letter containing the quotation; I think that mul might have referred to taking the bull by the horns; I know very little about either of the parties; the defendant struck the plaintiff upon the head; I understood that blood flowed from the blow but I did not see it; the defendant and Dobie came in together; Dobie was there from the first; I did not interfere till after the defendant had struck the blows.

            Re-examined - There was no time between the blows to interfere: the defendant seemed to be very much agitated: before the plaintiff was struck he might have said that the article did not refer to Mrs. Christie: when I first read the passage it appeared to me to allude to the defendant and his wife: the mull was in the club before the defendant's election.  To the Court - If I had not been told, when I first read the article, that it referred to the defendant's wife, I should still have thought that it did refer to her.

            John Dobie was then called, and objected to by the counsel for the plaintiff, on the ground of the witness having been in Court during the trial. The witness admitted having been in Court for a few minutes during the rain; but he denied having understood anything of what was passing with respect to the trial.

            The counsel for the defendant contended that the witness' case did not come within the spirit of the rule, which refused the evidence of a witness who remained in Court contrary to the order to leave Court; but Mr. Justice Stephen decided upon refusing to receive this witness' evidence, according to the invariable rule in such cases.

            The counsel for the plaintiff then withdrew the objection, and the witness was examined by Mr. Windeyer - I am a surgeon in the Navy: I am a member of the Australian Club; I remember the circumstance of the assault upon the plaintiff by the defendant: I saw the defendant about an hour before the circumstance: I went up to the Club, and found a latter there for him: I afterwards went with the defendant to the Club: I went to the room, following him, without any concern: I stopped at the door: the defendant came out, and said to me that the plaintiff was in the Club House: I followed him into the room: the plaintiff was sitting at the table: the defendant said that the plaintiff was the author of an article in the Free Press of that morning: the plaintiff said I am: the defendant said it reflects upon my wife, and a purer creature God never created: the plaintiff said "what then? I believe so:" the defendant said something, and then gave the blows: I have told every thing that was said: the defendant was excited: the plaintiff seemed sarcastic in his manner, and exciting.

            Cross-examined - I saw the defendant at four o'clock that day for the for the first time; I do not know when the letter was first applied for; I heard what was said in the room pretty correctly; I did not hear what the defendant said when he struck the blow; I would not swear to having heard anything else: I heard that the plaintiff had been unwell at Sir John Jamison's house, but I do not know what ailed him; I went to see the horsewhipping; the blow was on the head. I did not know that the defendant intended striking the plaintiff on the head; had I known it I would have prevented it; we went back to Major Nunn's quarters at about six o'clock, and we were taken into custody at nine.

            Re-examined - I endeavoured to soothe the defendant on the way down, and I did soothe him, but I believe he was excited by the plaintiff's manner, which was very sarcastic; it was a small riding whip that the defendant used.

            Donald Maclean examined by the Solicitor-General - I was a waiter at the Club-house at the time of the assault; it occurred at twenty minutes to six; I heard something said about the Colonel's paper; I saw the defendant come in with a very light riding whip, and strike the plaintiff with it. This witness was not cross-examined.

            William Abbott examined by Mr. Windeyer - I am house steward at the Club; I remember the assault; before it took place I had some conversation with the plaintiff, in which - The further evidence of this witness, for the purpose of proving that the plaintiff, before the assault, had expressed an ill-will to the defendant, was objected to, and rejected by the Judge.

            Captain Innes, recalled by the Solicitor-General - I saw the article on the morning of its publication, and upon reading it over I thought it referred to the defendant's wife; and if such a thing were written of mine, I would break the writer's neck instead of hitting him on the head. I am no classical scholar.

            Cross-examined by the Attorney-General - I am superintendent of police, and before I'd break the man's neck, I would enquire whether the article admitted of a harmless interpretation. I do not know that there is a mull at the Club; I do not pretend to understand the lines; the English poetry is certainly jocular, but I do not think the Latin is, from the way in which it is printed.

            To the Court - Even if I had known the true translation of the Latin passage, I would have still thought that it referred to the defendant's wife.

            James McEachern examined by Mr. Windeyer I am the editor of the Free Press. Colonel Wilson is the author of the article of the 5th of May; my letter was sent in the evening to the defendant.

            Cross-examined by Mr. Foster - My paper comes out at six o'clock in the morning; the defendant called on me at about two or three o'clock.

            The defendant gave in evidence a letter admitted to be written by the plaintiff, in the Australian, after the assault; and closed his case.

            The ATTORNEY-GENERAL addressed the jury in reply.

            Mr. JUSTICE STEPHEN charged them at some length; in substance telling them that the assault being admitted they had only to consider in estimating their damages, whether the words in the article fairly bore the interpretation sought to be attached to them by the defendant, and also whether the defendant took the proper means to obtain an explanation of the article from the plaintiff.

            The jury retired at about eight o'clock, and returned into Court at ten, saying, that there was no probability of their agreeing, and requesting some refreshment. The learned judge ordered them refreshment, and about twelve o'clock they delivered to the Under-Sheriff a written verdict signed by each of the jurors.

FRIDAY MORNING. - This morning the jury were in attendance and viva voce in Court gave their verdict for the plaintiff - Damages £150.


[1]              See also Australian, 12 and 15 June 1841.

Published by the Division of Law, Macquarie University