[barristers’ dress – civil procedure – deeds, alteration to]

Hardiman v. Bingham

Supreme Court of Van Diemen’s Land

In banco, Pedder C.J. and Montagu J., 10 May 1839

Source: Tasmanian, 17 May 1839

            Mr. Horne rose to address the Bench; in order to set aside the verdict in the case of Hardiman and Bingham, when Mr. Justice Montagu observed, that he considered a Barrister ought to be distinguished by the wearing of a gown; he knew that Mr. Horne was a Barrister at home, and considered that he ought to be so distinguished.

Mr. Horne replied, that he had not the slightest objection to wearing a gown, but he did not consider that to be the distinguishing mark of a Barrister: he would, even wear a wig, also, if necessary; but, as to the gown, he thought it was more characteristic of a parish clerk, than a Barrister.

Mr. Justice Monatgu remarked, that he maintained, that the Judges had a right to prescribe a proper and becoming costume for the Bar. The Solicitor General had, certainly, set the Bar a good example; (he had both gown and wig on, and looked, as Sam Weller would have said, “werry awful!”) but, as far as the wig went, the learned gentleman would find it very inconvenient, when the hot weather arrived. His Honor proceeded to say, that, when sitting alone in that Court, he would not permit any Barrister to plead before him, unless he wore a gown; of course, in sitting with the Chief Justice, he would not exercise any such authority.

Mr. Horne, after this gentle lecture, proceeded with the merits of the application, which rested on an erasure upon a material part of the deed, or grant - the name of William the Fourth having been scratched out, and that of Queen Victoria substituted, without any attestation of the fact. Mr. Horne cited several cases, and obtained his rule.

In banco, Pedder C.J. and Montagu J., 1 June1839

Source: Tasmanian, 7 June1839

            In this case, a new trial had been moved for, by Mr. Horne, upon the ground, that the deed of grant, procured on the trial, and in which there was an erasure, had not been submitted to the jury, for them to decide whether the erasure had been made, before or after the deed was issued. The Court now delivered its judgment.

Chief Justice. - This was an application for a new trial, upon the ground, that the deed had not been submitted to the jury, as to the erasure. It, in his opinion, ought to have been put to the jury, whether the erasure had taken place before or after the grant was given out; and, upon that ground, he thought that there ought to be a new trial. The name of William iv, had been scratched out, and that of Queen Victoria inserted; they had, therefore, a right to a new trial, if they thought fit to take advantage of that circumstance.

Judge Montagu quite concurred in what His Honor the Chief Justice had said. Formerly, a deed was before the Court, and a judge looked at it, and if there was an erasure, he declared it to be void; but it had, latterly, been held to be a question for the jury to decide, upon an interlineation, and to say, whether it was a valid and substantial grant, and whether it had taken place before or after the great seal was attached to it; and, upon the trial of this case, it not having been submitted to them, if they insisted upon it, a new trial must be granted; but if the erasure was there at the time the seal was affixed, it was a good and valid instrument.