Skip to Content

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

England v Sandilands (1831) NSW Sel Cas (Dowling) 860; [1831] NSWSupC 51

assault - false imprisonment - damages, nominal - costs, nominal damages and - Western Australia

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 23 July 1831

Source: Dowling, Select Cases, Archives Office of N.S.W., 2/3466

[p. 80]

In an action for assault and Battery and false imprisonment to which there was a justification and verdict for one farthing for Plaintiff:  Held that if there is a battery alleged though not proved the Judge cannot certify to deprive Plaintiff of his costs.[1 ]


Source: Dowling, Proceedings of the Supreme Court of New South Wales, vol. 58, Archives Office of New South Wales, 2/3241

[p. 1]

Supreme Court N.S.W.

Coram Forbes C.J.

Stephen J.

Dowling J.

Saturday 23d July 1831

This was an action of trespass for an assault, battery, and false imprisonment.  There were several counts each of which averred a battery.  The deft pleaded the general issue not guilty; and gave the plf notice under the 24th Rule of this Court, promulgated on the 9 September 1826, (as a substitute for a special plea), that he would on the trial of the cause give in evidence, that at the time of the trespass complained of in the declaration, the plf was under commitment for felony & larceny committed at Swan River making use of no more force or injury to plf than was necessary for the purpose aforesaid.  And which are the trespasses complained of in the said declon [sic] of the sd. plf.

[p. 2] At the trial before Dowling J. on 4th April 1831, the special matter of defence was found insufficient in law to justify the trespass complained of, and the jury under the circumstances found a verdict for the plf damages one farthing.  After the trial the defts counsel applied to the judge to certify under the 43 Eliz. c. 6. so as to entitle the plf to no more costs than damages.  The judge certified accordingly in order to raise the question whether the plf under the circumstances of this case could be deprived of his costs.  After this a rule nisi was obtained calling out the deft to their cause why it should not be referred to the master to tax the plf his full costs notwithstanding the judges' certificate, on the ground that such certificate could only go to the assault & false imprisonment, and that as the defts special notice admitted a battery, & the verdict being found against him on the special matter, the plf was on the authority of decided cases entitled to full costs.  Cause was shewn against the rule, and it was contended that the notice filed as to the special matter intended to be proved on the trial did not amount [p. 3] to a justification of the battery.  Another point made was that as these had been no replication filed by the plf, there was in fact no issue raised, and the cause was out of court.  The case stood over for consideration until this day.

With respect to the second point, I am decidedly of opinion that in this stage of the proceedings in which it was made it was quite out of season.  If there was any weight in that objection it ought to have been taken advantage of before trial, by signing judgement of non-pros., because the failure to reply in time would have amounted to a discontinuance of the suit. - The deft however by going to trial appears to me, to have waived the objection, and consequently it is now too late to take advantage of it.  I cannot, however, forbear observing that since I have had the honour of a seat on this bench, I have frequently noticed great laxity in not conforming to the very simple rules of practice ordained for the conduct of business in this court.  I trust, however, that in future the court shall see no reason for resorting to the compulsory means which it [p. 4] possesses, of enforcing a more rigid observance of rules which though made for the cheap and expeditious administration of justices were certainly not intended to be wholly discarded by the practitioners.

The first and most material point, depends upon the effect, of which I shall for this purpose call the special plea of justification.  If that can be considered as a justification of the alleged battery, as well as the assault & false imprisonment then I fear the authorities upon this subject are too strong for us to get over, and the plf will be entitled to full costs notwithstanding the judges certificate under the statute 43 El. c. 6. because that clearly limits the powers of certifying to cases of assault and false imprisonment, & does not touch a case where a battery is admitted on the record.  The principal object of our desiring time to consider of the case was to have the opportunity of referring to the record and examining the notice of justification.  Having examined it according, it appears to me that although it has not all the technical formality of a special plea yet it does in substance and effect go to justify all the matters set forth in the declaration.  [p. 5] It notifies that the Deft will on the trial give in evidence that at the time of the trespass complained of, the plf was under commitment & so forth, and then it concludes with saying "which are the trespasses mentioned in the declaration.["]  If the deft had confined himself, as in the case of PageCreed 3. T. R. 301. to a justification of the assault & false imprisonment only, then the plf according to that authority would be entitled to no more costs than damages unless the judge certified under the statute 22 & 23 Car. c. g. that a battery was proved.  But I apprehend we are bound to treat this notice as a justification of the whole matter put in issue by the defts declaration, inasmuch as it goes to all the trespasses complained of.  Now in the case of Smith vEdge 6 T.R. 562. Lord Kenyon says, with the concurrence of the other judges "Where the plea justifies the battery as well as the assault, & where the justification goes to the battery, it has been the usuage at all times, without any contradiction, to allow the plf his full costs."  In that case the plf declared for an assault and battery.  [p. 6] The deft pleaded first, not guilty, and secondly a justification to the whole, & the jury having found for the plf damages one farthing, the Court held that a battery being admitted on the record, the plf was entitled to full costs, even without a certificate under the statute 22 & 23 Car. 2. for if it appears on the record that there was a battery no certificate was necessary under that statute to give full costs.  The later cases ofEmmett Lyne 1 N.R. 255 & Wiffien Kincard 2 N.R. 471. cited in argument do not appear to me to be in point.  In those cases the defts only pleaded the general issue, & the plfs recovered damages under 4 c/ts, and all that the court heard was that a judges certificate under the 43 Eliz. c. 6. would deprive the plf of his costs for the assault & false imprisonment, though in one of the cases a battery was proved.  Here the justification makes all the difference, and a battery being admitted on the record, we are bound by the express authority of Smith Edge.  I have reason for believing that the jury in the this case intended to give the plf such damages as would carry costs, and although that circumstance ought not to affect our decision one way or the other, [p. 7] yet, it is however to be regretted that the real intention of the jury should be carried into affect if they can be so consistently with the law.  The foreman of the jury advised the court what were the lowest damages that would carry costs.  They were told that there being a plea of justification, any damages would carry costs, unless the judge had power to certify; but that was a point upon which the court could not with any propriety give any opinion in that stage of the proceeding. - the jury must consider their verdict without reference to the consequences.  After a careful review of the pleadings & of the authorities bearing on the case, it appears to me that we have no power by law to deprive the plf of his costs, there being a battery admitted in substance on the record; & therefore we must make the rule absolute.

The like decision must be given in the other cases against the same defendant.



[1 ] See also Mackay v. McQuoid and Murray, 1831; Mackay v. Sandilands, 1831; England v. McQuoid and Murray, 1831.  For comments and reports of other cases in this series, seeSydney Gazette, 8 February, 3 March 1831, 7 April 1831; Australian, 12 and 19 February, 8 April 1831.  See also Australian, 18 March 1831.

In 1832, the New South Wales Legislative Council passed a new statute to regulate convict escapes and rewards: see Australian, 20 April 1832.

Published by the Division of Law, Macquarie University