Denham v Peck, 1841

[civil procedure, verdict set aside – Attorney-General, whether intentionally misled court – new trial]

The Attorney-General moved for a rule to show cause why a new trial should not be granted, or the verdict set aside, as the jury did not assess the damages with respect to the third defendant, Murphy, and because they disregarded the plea of justification filed by the said defendant, which was a complete answer on his part. A brief embarrus took place in consequence of Mr. Justice Montagu’s abstract being defective. His Honor observed that, from that document, it was impossible for him to understand the case; and he animadverted in strong terms upon the tendency which the abstract had to mislead. He thought the attorney ought to pay the whole costs out of his own pocket, for he could scarcely believe the error was unintentional, but the reverse. The record, too, was wrong, and not fit to try. Mr. S. Stephen, as Amicus Curae, observed, with all due deference, that there was nothing there to show that the record was wrong, but only that the abstract was very loosely and improperly finished; he was quite sure that the attorney by whom it was finished had no intention whatever to mislead his Honor. His Honor, if the Chief Justice had no objection, would order the attorney to explain his conduct, and to show the court that the fault was not intentional and deliberate; and, after some strong remarks upon the interest which attornies in general had to “increase litigation,” the Chief Justice concurred, and a rule was ordered directing the attorney to show cause in his defence.

Source: Hobart Town Courier and Van Diemen’s Land Gazette, 14 May 1841

The Attorney-General moved for a rule to shew cause why the verdict in this case should not be set aside or a new trial granted, as the jury did not [???] the damages against the third defendant, Murphy, and [???] they disregarded the plea of justification given by another defendant, John Peck, an insolvent, which was a complete answer on his part.

His Honor Mr. Justice Montagu [???] advertised in strong terms upon the heedless manner in which the abstract presented to His Honor had been prepared; it was altogether wrong, and calculated to mislead him; he would suggest that the attorney be called upon to show cause why he should not have to pay the costs of the first trial, and of the subsequent proceedings, for His Honor could scarcely suppose that the error was unintentional, but deliberate and intentional; the record also must be bad. Mr. S. Stephen, with submission, would beg to suggest that there was nothing at present to show that the record was wrong, but that the abstract was loosely and improperly furnished; the learned counsel however could take upon himself to affirm, that the gentleman in whose office it was prepared, was the last person to permit any willful error to be committed.

A long discussion took place in the case of Denham v. Peck and others, of Launceston, as to whether the verdict of £10 should not be reduced to 1s., according to the usual practice. There appeared to be some strange error and confusion in the case, and their Honors would take time till Friday, to look into the cases cited by Mr. Stephen, who appeared to show cause against the rule on the part of the plaintiff. The Attorney General was for the defendants. – Colonial Times.

The rule mentioned as granted in this case was discharged; each party to pay the costs in issue.

[1] See also Hobart Town Advertiser, 11 May 1841; Hobart Town Courier and Van Diemen’s Land Gazette, 21 May 1841; Hobart Town Advertiser, 25 May 1841; Hobart Town Courier and Van Diemen’s Land Gazette, 28 May 1841.