Walk out by bar

Supreme Court of Van Diemen's Land
In banco, Pedder C.J. and Montagu J., 9 and 13 August 1839
Source: Hobart Town Advertiser, 16 August 1839[1]

No business was done in Court this day, owing to a very singular circumstance, the particulars of which are as follows:- The Court officers, and a majority of the Bar assembled at the usual hour of 10 o'clock, and it was understood their Honors the Chief Justice and Mr. Justice Montagu, were in Chambers, consulting upon some case or cases, on which it was expected they would be called upon to deliver an opinion. About half-past 10 o'clock, the Judges not having made their appearance on the Bench, strong symptoms of impatience were manifested by the gentlemen of the profession, then and there assembled, viz:-
Mr. A.G. McDowel Mr. E. Butler
Mr. S. G. Jones Mr. Sutton
Mr. C. S. Ross Mr. Perry (Commissioner of Caveat)
Mr. Horne Mr. Allport, and
Mr. Harrison Mr. Browne,
Mr. Pitcairn
Mr. Young
As the conversation which passed was in the low tone, in which the profession, usually confer in Court during the absence of the Judges, the Reporters did not, and could not catch the purport, and moreover, not imagining that any thing material was in agitation paid but slight attention. Suddenly, however, all the gentlemen above mentioned rose, as with one accord, packed up their books and papers, and abruptly quitted the Bar, leaving the Court House occupied only by the officers of the Court, the Reporters for the Press, and a few solitary and silent spectators, all of whom looked at each other wondering what this extraordinary movement could mean. At this time it wanted about 20 minutes, or a quarter of an hour to 11 o'clock, and from thence till nearly half-past 11, the few parties present amused themselves by conjecturing the cause and probable termination of a scene seldom, if ever before witnessed in a Court of Justice. Finding there was nothing doing, and observing the Registrar, Clerks of the Court, and one or two Attornies, who were not present at the movement, passing in and out of the Judges' Chambers, with evident signs of dissatisfaction upon their several countenances, the Reporters enquired whether there would be any business done, and were most politely informed by the Sheriff that their Honors would not sit that day, and had left the Court House.
An occurrence of this kind, which was evidently a division between the Bar and the Bench, excited at once considerable surprise and animal version. Knots of persons were to be seen in different places adjacent to the Court House, discussing with all the vehemence of party, the respective conduct of the Bench and the Bar. Some declared that it was a most flagrant contempt of public opinion on the part of the Judges, to keep the profession waiting for three quarters of an hour, while others denounced the conduct of the Lawyers as disrespectful and insulting to the Bench, and insisted that they had no business to act as they did. This subject, in the absence of more interesting matters formed the principal topics of conversation until.

TUESDAY, AUGUST 15

When His Honor Sir John Lewes Pedder, Knt. and Mr. Justice Montagu took their seats a few minutes after the clock struck 10, and the Chief Justice spoke to the following effect:-
Mr. Attorney General, - I cannot take my seat on the Bench this morning, without offering some observations upon a circumstance which occurred in this Court on Friday morning last. Although the remarks I have to offer applies to every gentleman at this Bar, I address them to you personally, as it is usual in all cases where a Judge has occasion to address the Bar, as a body, to make his observations to the leading counsel. I wish it to be distinctly understood that I speak for myself only, and express my own individual feelings upon what took place.
On Friday, last, about 20 minutes before 11 o'clock, one of the officers of this Court came into my chambers at the Court House, and reported that the whole of the Bar had just before abruptly and simultaneously quitted the Court, without requesting any communication to be made to us, or giving the officers of the Court the slightest intimation of their intention. I was perfectly taken by surprise, and can scarcely express my astonishment when I was given to understand that the officers of the Court, the Public Reporters, and a few spectators were all that remained. On the present occasion, I feel bound to say that I consider such conduct on the part of a body of professional gentlemen was intended as a rebuke upon the Judges for not having taken their seats at the usual time, and can only be viewed in the light of a public insult to the Bench.
Attorney-General. - I beg to state, in reference to what has just fallen from your Honor, that I waited in this Court last Friday morning for three quarters of an hour, during which there was not the slightest intimation given that it was the intention of your Honors to take your seats, and I have yet to learn that it is the duty of the Attorney-General, or any gentleman of this bar to enquire whether it were the pleasure of the Judges to act or not. I have myself arrived in this Court within ten minutes of the time of sitting; and because I was not present on the instant, my causes have been struck out to the great injury of my clients. For what other gentlemen choose to do, I am not answerable, and although I said that I should not remain any longer, I had nothing to do with the movement which followed. I left the Court because I considered if it was your Honour's intention to sit, after so long a time had elapsed, some intimation should have been given to the profession, and I further did so, to make my sense, humble as it is of the discourtesy.
Chief Justice. - From what you have stated, Mr. Attorney-General, my previous impressions, I am sorry to say, so far from being removed, are confirmed.
Attorney-General. - So I should wish.
Chief Justice. - Such conduct by the body of professional gentlemen is an unheard of occurrence, and cannot be suffered to pass without reprehension. The Judges of the Queen's Bench and Westminster Hall, would not, I imagine, have been so treated by the Bar under similar circumstances, and I do not see any reason why the Judges here should submit to insult any more than the Judges of those Courts.
Attorney-General. - I disclaim all intention of offering any insult to the Bench.
Solicitor-General. - As a Member of this Bar, and being present on the occasion alluded to, I beg leave most distinctly to disclaim any participation in "the movement" in question. I came here engaged in three causes, in two of which I was opposed by my friend, Mr. Horne - in the third by the Attorney General - and when I found those gentlemen intended to depart, I followed their example, but had I expected that it would have been felt by your Honors as any insult to you, as the Judges of this Court, collectively or individually or as an insult to your Honors, personally as gentlemen, I most assuredly should not only have remained myself, but have opposed any such "movement" as has been alluded to.
Chief Justice. - Mr. Solicitor General. After what has fallen from you, I feel bound to declare I am perfectly satisfied with your explanation. I am free to admit that the Judge's ought to have been in Court at 10 o'clock, and am very sorry that they were not.
The Crown Solicitor. - I have at all times the most profound respect for your honors, and hope I have ever evinced it. I certainly did participate in the movement, but only followed the example of others.
Mr. Rowlands and Mr. Cartwright begged to inform their honors, that they had no participation in the matter, not being present.
Mr. Browne. - Was certainly present, but had no intention of offering an insult to their honors; seeing other persons leave the court, the left also as a matter of course, having nothing to do.
No other gentleman at the table offered any observation.
Mr. Justice Montagu. - In reference to the conversation which has taken place, I am very glad that his honor the Chief Justice spoke only for himself. I shall offer no remarks - I have no feeling whatever on the subject, considering it best on all occasions to treat such cases with - with - with - silence. Occurrence of this kind have been so very common, that I shall offer no commentary whatever, but allow it to pass with the most perfect - silence.
[The expression given by his honor to these few words, cannot be conveyed in print.] Thus ended this very unpleasant matter.

In banco, Pedder C.J. and Montagu J., 16 August 1839
Source: Hobart Town Advertiser, 23 August 1839[2]

FRIDAY, AUGUST 16, 1839 - Sittings in Banco.
On the opening of the Court this morning, Mr. Daniel Sutton addressed the bench on the subject to what had occurred this day week. He felt it due to himself and to their honors to offer an explanation; but in doing so, he wished as much as possible to avoid collision with any other gentleman of the profession. On Friday last, he waited for three quarters of an hour, when he saw (being rather deaf he could not hear what passed.) Mr. Attorney General and the rest of the professional gentlemen preparing to quit the Court. Thinking, however, they intended to return, he remained till a gentleman came to him with a message that he was wanted by the Attorney General immediately. Being concerned in a case, where he had the assistance of the learned Attorney General, he naturally concluded that gentleman wished to consult him upon some points of the case, and accordingly went into the room where the counsel generally confer. No one was there. He went out of the Court House, but could neither see or hear any thing of the Attorney General. He then went to his office, but could not find him there. At least concluding that the learned gentleman might be with the Solicitor General, he was repairing to the latter gentleman's residence, when he met Mr. McDowell in the street. On seeing him, he said, "Mr. Attorney General, have you not sent for me?" Mr. McDowell replied, that he had not sent, and expressed his surprise that any such message should have been delivered in his name to Mr. Sutton, who now begged of their Honors to believe that had he not been enticed out of Court under the idea that he had been sent for, he should most certainly not have left his plea.
The Attorney General said that he was incapable of resorting to any such ruse to get Mr. Sutton out of Court, and assured their Honors, that however he might himself have acted, he neither sent for Mr. Sutton, nor was he at all anxious to see him.
The Chief Justice was perfectly convinced, from Mr. Sutton's own statement that the Attorney General did not send for him.
Mr. Sutton replied in language of complaint, that he had been perfectly led astray by the message, and not only induced to leave the Court, but kept running about the streets until after one o'clock, to his own great personal inconvenience and the neglect of his business.
Mr. Justice Montagu conceived it was due to the Court, that Mr. Sutton should name the gentleman who delivered the message.
Mr. Sutton was unwilling to come in collision with any other gentlemen, but as his Honor desired it, he would without hesitation name the party. It was the Solicitor General's clerk, when he came for that gentleman's books, who delivered the message, as he understood by the order of Mr. Jones and when he (Mr. S) found Mr. McDowell had not directed any such communication to be made, he applied to Mr. Jones, who denied that he had sent the message. [Here the venerable gentleman appeared almost overcome by excitement, and in a most animated and impressive manner said.] "at the age of seventy, I cannot do that which I would have done at thirty, or I should have called Mr. Jones out for putting such a hoax upon me."
The Solicitor General met this remark with a smile, and admitted that he certainly did send for Mr. Sutton out of sport. It was a more boyish freak than he ought to have committed, but it was a mere joke, and done without any intention to induce Mr. Sutton to leave the Court.
Mr. Justice Montagu could not reconcile the fact of the Solicitor General sending for Mr. Sutton in such a way, with his previous declaration, that he left the Court having nothing to do. With that declaration his Honor had felt quite satisfied, but it now seemed there must have been some other motive.
The Solicitor General had nothing to do with any one's motives. The sending for Mr. Sutton was a mere boyish prank.
Their Honors remained silent.
Mr. Lyons begged to observe he was not in Court at the time.
Mr. Dyre also said he was not in Court, but if he had, he should not have been a participator in any such folly.
Mr. Justice Montagu. - I have been told that Mr. Jones after leaving the Court returned to Mr. Harrison at the table, took him by the arm, and said, "come along, we are all going;" and moreover actually carried that gentleman's bag out of Court. This conduct is perfectly irreconcilable with Mr. Jones's previous explanation.
Solicitor General. - I returned for some papers I had left.
Mr. Justice Montagu. - I am informed that you carried Mr. Harrison's bag out of Court and urged that gentleman to leave.
The Solicitor General looked disconcerted, but made no reply.

Notes
[1] See also Cornwall Chronicle, 17 August 1839; Tasmanian, 16 August 1839; Launceston Advertiser, 22 August 1839.
[2] See also Tasmanian, 23 August 1839.