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Decisions of the Nineteenth Century Tasmanian Superior Courts

Attorney-General v. Murdoch [1841]

Crown debt, recovery of - Attorney-General - civil procedure, no new form of action - counsel, problem getting

Supreme Court of Van Diemen's Land, In Banco

Pedder C.J. and Montagu J., 11 May 1841

Source: Hobart Town Advertiser, 14 May 1841[1]

This action for the recovery of £1045, was brought in the name of the Attorney General on behalf of the Crown.  Mr. Stephen quoted Chitty and Commyns in support of this form of proceeding, but his Honor the Chief Justice did not see that any hearing precedent had been established. 

            Mr. Justice Montagu stated that the Court of this colony was not going to institute a new species of action; that the Crown possessed several forms of action more than individuals, and that until the case be brought in another form it must stand over.

Pedder C.J Montagu J., 11 May 1841

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

            Mr. S. Stephen, who had been especially retained by the Crown, appeared to argue the point whether the Crown can sue for a debt in the present form of action, in the name of the Attorney-General. The learned counsel contended at some length in favour of the point, citing several authorities in support of his argument.

            Their Honours, however, who gave their judgment at some length, were clearly of opinion that the action should not proceed any farther, and that judgment should therefore be given for the defendant.

            A short episode occurred on this occasion, to the following effect:- Mr. Allport, the attorney for Mr. Murdoch, stated to the court that he could get no counsel. In the first instance, Mr. Horne had been retained, but on his appointment to the office of Solicitor-General, the brief had been handed over to Mr. Jones, with whom Mr. Anstey was also engaged. Application had been made to the Government for permission for Mr. Horne to continue to defend the cause, but this was refused, although Mr. Horne declined to be engaged in conducting it; there was therefore no counsel to whom Mr. Allport could apply.

            Mr. Perry said that Mr. Stephen had been retained by the Crown, in consequence of Mr. Horne declining to be engaged in the case; this was long before Mr. Jones had left the colony.

            Mr. Justice Montagu observed, that we could not be without barristers; the Government had recently kindly stepped in and admitted a host. If there were none to suit, that was another thing; but there was no distinction, as all who were admitted were in fact barristers.

            Mr. Allport explained, that he did not advert to the gentlemen to whom His Honor alluded, but to those who had practised as barristers only.

            Mr. F. Browne, who sat by Mr. Allport, rose and said - I beg to inform your Honors, in reference to what Mr. Allport has just said, that I have never been applied to in this matter, and moreover, I consider that Mr. Allport intended to insult me; I must add, also, that even were he to apply to me, I should decline to act, as I do not wish to have anything to do with such a person.

            After a few observations from Mr. Justice Montagu, to the effect that Mr. Browne had misconstrued Mr. Allport's meaning, the matter dropped.


[1]              See also Austral-Asiatic Review, 18 May 1841.


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