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Decisions of the Superior Courts of New South Wales, 1788-1899

Gannon v. Jobbins [1828] NSWSupC 23

slander, felony attaint, civil procedure

Supreme Court of New South Wales

Dowling J., 6 April 1828

Source: Sydney Gazette, 9 April 1828

This was an action for slander.  From the evidence adduced, it appeared that the defendant in the present action was some time since, the plaintiff in a cause tried in the Court of Requests, the defendant in which case (a man named Peacock,) called the plaintiff in the present action as a witness.  Judgment in that case was given for the defendant, when several times subsequent to the trial, the defendant Jobbins, declared, in the presence of various witnesses, that he should not have lost his cause, had it not been that the plaintiff, Gannon, had perjured himself when giving evidence on the trial.  These facts were established on the testimony of several witnesses.

The defendant pleaded the general issue, and also, that the plaintiff, both before and at the time of the subject of the present action, was a convict attaint, and assigned to his wife, and consequently had no locus standi in that Court.

Mr. Rowe, on the part of the defendant, was about to address the Court on the latter plea, when

Mr. Stephen (with whom was Mr. Williams) objected upon the ground that the defendant had in the first instance, pleaded merely the general issue, and that the plea of convict attaint, had not been filed till long subsequently, and not within the period provided by the 23d clause of the Rules of Practice in the Supreme Court, which provides that the defendant in any action shall file his plea, demurrer, or defence, within eight days inclusive after the return day of the writ; and that, in case such plea, demurrer, or defence, shall not be filed within the time limited, judgment by nil dicit[1 ] may be entered against such defendant.  In the present instance the plea of not guilty had been filed on the 8th of February, and that of convict attaint, not until the 15thMarch, only the day previous to that on which the cause was set down for trial.

Mr. Rowe replied.

Mr. Justice Dowling was of opinion that the objection was fatal.  The Court was bound to abide by the rules laid down for its guidance; and the learned Counsel not having filed his plea within the period provided by the Rules of Practice, was not entitled to offer any evidence to the Court, of the matter set forth in his notice of the 18th of March.

Mr. Rowe declined addressing the Jury, or calling any evidence under the plea of not guilty.

His Honor then summed up the evidence, and told the Jury that they were to decide from the testimony before them, first, whether they were satisfied that the words alleged in the declaration were spoken by the defendant; and, secondly, if they were so satisfied, then they would take into their consideration whether they were made use of in such a way as to deliberately charge the plaintiff with having committed the crime of wilful and corrupt perjury, or whether they were the mere ebullition of an angry man.  If they should be of opinion that the words were made use of by the defendant, and with the intention of deliberately imputing so serious an offence to the plaintiff, they would find a verdict for him, and then go on to consider the amount of damages they would award; if, on the other hand, they were of opinion that the words were the mere impulse of the moment, and uttered in an angry feeling from having lost his cause, they would be then justified in finding for the defendant.

The Assessors found a verdict for the plaintiff, damages one shilling.

On an application, by Mr. Stephen, for costs, His Honor stated, that he should consider whether, under all the circumstances, he would certify, and give an answer at a future day.

Notes

[1 ] Nihil dicit: he or she says nothing, no defence.

Published by the Division of Law, Macquarie University