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Decisions of the Nineteenth Century Tasmanian Superior Courts

Murray v. Murray [1836]

civil procedure - libel - pleading, complexity of - Pedder C.J., anger in court

Supreme Court of Van Diemen's Land

Pedder C.J. and Montagu J., 12 April 1836

Source: Tasmanian, 14 April 1836[1]


            On Tuesday, the Attorney General, the Solicitor General, and Mr. Hesse with him, obtained a Rule to shew cause "Why the special pleas of the defendant should not be taken off the file, the defendant being allowed to amend such plea; or to plea de novo, and why the defendant should not pay the costs occasioned by such plea; and also the costs of this application." This day the defendant appeared in person to shew cause against the Rule. The circumstances in which this application to the Court originated are as follows:- On the 5th October, last year, the plaintiff brought this action for alleged libel, published by the defendant in this Journal on the 3d July, the 4th and the 18th of September preceding.       The term commenced on the 2d November, and ended on the 28th. On the 23d the defendant was served with the declaration, of the immense length of 60 folios, with a four day rule to plead, expiring on the last day of the term. On the 12th December the cause was called on for trial, when the pleadings were opened by the Solicitor General, (with whom were the other Counsel before mentioned.) That Gentlemen having read the declaration, in the abbreviated manner customary, read the pleas entire. They were verbatim repetitions of the matter inserted by the plaintiff in his declaration as forming the cause of the action; and having this copied them from the declaration, the defendant justified them. Upon the Solicitor General reading this plea, His Honor the Chief Justice, who sat to try the cause, was excited into extreme anger, and expressed himself towards the defendant in very strong terms of indignation at his daring to file pleas which His Honor was pleased to designate, disgraceful in themselves and an insult to the Court. A discussion of some length followed, in the course of which His Honor having peremptorily refused to try the case, Mr. Gellibrand suggested, as amicus curiƦ, that His Honor should order the cause to be stuck out of the paper, which was done accordingly. Thus the matter stood when the rule above-mentioned was obtained.

            Mr Murray this day addressed the Court at some length. We shall give only the heads of his argument. He commenced (and he several times repeated it) with disclaiming in the strongest terms, and in the most perfect sincerity, ant intention of offering even the shadow of insult to the Court. He referred to the extreme length and complicated nature of the declaration - that it was not what "the books" state that it shall be, "precise, certain, and clear, and no more," so as to enable the defendant to meet it with equal precision, certainty and clearness - but on the contrary, in every respect deficient in all those qualities. Knowing he was enabled to justify every word contained in the declaration, and finding it laid down in the books as an absolute requisite to all pleas of justification, that they shall set forth everything intended to be justified in the fullest manner, "in iisdem verbis," he considered the safest course for himself, as it was assuredly the most honourable, and, the most candid towards the plaintiff, to be, to follow verbatim the plaintiff's declaration, and inform him in his pleas of every word contained therein, which he intended to justify. Mr. Murray pressed strongly upon the Court, that he considered he had good cause to complain of having been unjustly visited with the anger of the Court, for an offence, which if it was one, which of course he was bound to believe, from the excitement which it had occasioned in His Honor the Chief Justice, the real offender was the Attorney General who had prepared the plaintiff's declaration, of which the plea was a mere copy, not a particle of new matter - not one single additional word being contained therein. Mr. Murray said, he was aware that it was quite possible, that pleas might have been prepared by some ingenious artist in that mysterious science - special pleading, which might have admitted him to have defended himself without following the words of the declaration; but it was also quite possible, that even such an accomplished person might have failed in the attempt, so intricate were the mazes of that inextricable labyrinth. He pressed upon the Court the possibility that by omitting to justify every word contained in the declaration, he might have omitted some, which the plaintiff's counsel would then tell the Jury, he (Mr. Murray) had not dared to justify; and, although, of course it might be possible that the Judge would tell the Jury, that by the forms of special pleading, he had no occasion to do so, yet the fact of his not having justified them, would have remained on the minds of the Jury, and he might have suffered severely therefrom. If the pleas were "absurd and insensible," as Mr. Hesse, one of the counsel for the plaintiff had sworn that to be, then, the plaintiff's declaration was also absurd and insensible, for the plea was a mere transcript of it. If on the other hand, the words were necessary to be inserted in the declaration; and being so, not offensive to the Court, he could not comprehend by what reasoning they becameunnecessary to have to be repeated, and his repetition of them should become offensive to the Court. The passages which he understood the Chief Justice chiefly to complain of, were those in which he stated, that "the engineering abilities of the Town Surveyor, were pre-eminently humbug," - that it was a comfortable thing to be Town Surveyor - THAT HE WAS a distinguished equestrian - and heving possessed a "religious horse," he had endeavoured to dispose of him to the Government in the name of his constable." Mr. Murray stated, that however inelegant or offensive to extremely polished and delicate criticism the word "humbug" might be, it was in constant use in the very highest assemblies, even in both Houses of Parliament. In respect to the opinion which His Honor the Chief Justice had formed, that it was insulting to the Court to try such issues as the preceding, Mr. Murray cited cases reported in the books, which the English Court of King's Bench had tried, without so considering them, and which were of unspeakably more offensive nature, both in themselves abstractly, and in the nature of the investigation which arose out of them. He mentioned the well-know case of Villiers v Moulsely, in which the plaintiff sought to recover damages from the defendant, for having published of him that "he stunk of brimstone, and was an old stinking, old nasty, old itching toad." 2. Wils. 403. So also in the case of Beil v Stone. 1. B. & P. 331, which was for publishing of the plaintiff "that he was one of the most disgraceful villains that ever disgraced human nature." Mr. Murray also reminded the Court of the case of the Earl of Leicester, afterwards Marquess of Townshend, against Manners for a libel, of a nature unnecessary to state. The defendant justified, and the issue was joined; but when the cause was called on for trial, Lord Leicester's Counsel withdrew the record, and that nobleman withdrew to the Continent. Yet, surely, in respect to any offence to the Court in presenting offensive issues for trial, that created by the pleas in question, could not be brought into comparison, because in the latter there was not one syllable in the least offensive to the most fastidious taste. If, on the other hand, it was creating ridicule which gave offence, what was not the celebrated case of Sir John Carr v Hood, in which the action was brought expressly, for that the defendant had turned the plaintiff into extreme ridicule, by exhibiting him, amongst other highly ridiculous positions, as carrying a pocket-handkerchief in his hand, in which was contained his whole wardrobe. But giving to the pleas, all that was attached to them of impropriety, as he was bound to do of course, seeing that the Chief Justice had, on account thereof, been so highly excited, and to have ordered the cause to be struck out of the paper, yet Mr. Murray submitted, that it was upon the plaintiff's Counsel, with whom whatever blame there was thereupon rested, and not with him, the defendant, who had merely copied into his pleas the exact words he had found in the plaintiff's declaration. Admitting, however, as, of course, he was bound to do, that His Honor had acted correctly in the striking the cause out of the paper, yet he confidently submitted that the Court had not the power to remove his plea from the file, after the plaintiff had filed his replication thereto - taken issue thereon - set the cause down for trial, and it had actually come on to be tried - the Jury sworn, and the pleadings opened, upon that very plea. The practise and proceedings of the Court were governed by the rules and the practise of the King's Bench. By these rules, they had hitherto held themselves strictly bound, and he did not suppose they were now going to violate them for the first time, in this instance, merely to effect his prejudice. "I defy the best lawyer in the Colony," said Mr. Murray, "to produce one single case in which a suitor, who has taken a single step after an irregularity in the pleadings on the opposite side, can be permitted to apply to the Court complaining of that irregularity. His only opportunity is, what the books call - "the first instance" - that is to say, without delay and without proceeding one step further. If any single step, be that step ever so trifling, is taken in the cause, I defy the best lawyer in the Colony to deny that it is an immutable fixed principle, that all objection to the irregularity is waved; and, if so, as to trifling instances, how much more strongly does the principle apply, where, as in the present case, the plaintiff file his replication - took issue, and actually went to trial." Mr. Murray then cited several cases in support of his assertion. Fletcher Wells, 6 Taunt, 91; Dand vBarnes, 6 Taunt, 5; White v Howard, 3. Taunt, 339; Blewet Marsden, 10 East, 257; and several other cases in which this principle is treated as established and confirmed law; particularly that of Pearson and Rawlings, 1 East, 77 and Thomas Smith, 4 Taunt, 668, which was an application to quash a plea because it was insensible;the Court refused; adding, that it had been held that when a plea was perfect nonsense, a plaintiff might signjudgment; but even then he did it at his peril. Even in all these cases, in every one of them, the application was made before a single step had been taken after the irregularity. It was laid down as an invariable rule in Tidd, 565, Chitty, 225, and in all the books of practise, that any step by the opposite party after the irregularity, waved all right of complaint of that irregularity. Mr. Murray repeated, he defied the production of a single instance, in which that so well established law had been violated. Leaving therefore the question of the propriety or impropriety of the pleas quite aside, he submitted fearlessly that the Court could not comply with the present application, unless by violation of all which had ever been held to be the law in the Court of King's Bench in England, which he could not believe the Court here would attempt. "There is another circumstance," continued Mr. Murray, "to which I wish to draw you Honor's attention, which will prove that it is impossible your Honors can do so. This application is to strike out my plea, or that I may be allowed to amend it, or pleadde novo. Now there is not a word about striking out the replication. Is that to remain? I may be advised to a file pleas which may require very different replication to that on the file of the Court. Is a plea not yet prepared, the nature of which is not even contemplated to be answered by a replication already on the file of the Court? This very fact involves an absurdity which of itself shews the accuracy of the principle of law established by the Court of King's Bench, and will if necessity prevent the Court here from adopting, what I cannot but assert will be to me, the great injustice of violating an hitherto established principle of law, to my prejudice.

            The Chief Justice. - As to the replication we shall treat it merely as waste paper.

            Mr. Murray. - Will your Honors then allow two replications to be on the file?

            The Chief Justice. - We shall take care of that; if it is necessary it should be taken off the file, we shall order it to be taken off.

            Mr. Murray. - I respectfully submit to your Honors that there is no application on the part of the plaintiff that you should do so.

            The Chief Justice. - You have nothing to do with that. If the replication being on the file creates any difficulty in removing pleas, the Court will remove the replication also.

            Mr. Murray. - After what your Honor has just stated, that you will summarily remove from the file of the Court, so important a pleading as the replication, without any application on the part of the plaintiff that it should be done, and without the defendant being heard against so unprecedented a proceeding, merely because otherwise a very different application cannot be rendered effectual against the defendant, it is quite useless my offering one word more in my defence, and therefore much as I had to urge, I shall trouble the Court no further.

            The Attorney General then rose to reply, but the Chief Justice told him there was no occasion for him to do so.

            Mr. Justice Montagu. - I quite agree with the Chief Justice as to making the rule absolute, but perhaps it will be as well that the Attorney General should move to take the replication off the file, Mr. Murray can then be heard against it.

            The Chief Justice. - The rule is made absolute with the costs in the terms of the rule. The pleas which the defendant has dared to put upon the record are insulting and disgraceful. I cannot speak of them without being excited. (His Honor had been frequently so during Mr. Murray's defending himself against the motion.)The rule is granted "TO PUNISH THE DEFENDANT FOR SUCH CONDUCT," and as a warning to others. His Honor then stated that he should read the pleas to the Gentleman of the Bar, which he did, commenting with much anger upon the insult which His Honor considered the defendant had offered to the Court in respect to the passages referred to, the word humbug - the religious horse, the plaintiff's equestrian ability, and that it was a comfortable thing to be Town Surveyor. The question as to the replication was left undisposed of.


[1]               See also Hobart Town Courier, 8 April 1836.  For the views of the True Colonist, 29 April 1836, on this and other cases, see True Colonist on the Judges, 1836.


Published by the Division of Law, Macquarie University and the School of History and Classics, University of Tasmania