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

Yeomans and Danger v Hewitt [1832] NSWSupC 50

slip rule - civil procedure

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 18 July 1832

Source: Dowling, Proceedings of the Supreme Court of New South Wales, Vol. 72, Archives Office of New South Wales, 2/3255

[p. 79]Assumpsit on a promissory note made payable to the Plf's partners. - The defts handwriting was proved, & the same witness who proved the handwriting could have proved that the plf's were partners, but the Plf's counsel from a mere slip omitted to ask the question, & closed his case.  Whereupon the defts counsel moved for a nonsuit but the Judge (Forbes C.J.) in the exercise of his discretion allowed the witness to be called back, & the partnership being thus proved the plf had a verdict.

Foster now moved for a new trial, & contended that after the plf had closed his case, the Judge had nothing to do but nonsuit the plf on the motion of the Deft, who had a right to take every advantage of his the plf's laches.

Macdowell contra was stopped by the Court.

The rule in criminal cases is certainly very strict, but [p. 80] even in such cases, the Judge has a discretion to exercise, whether he will allow justice to be defeated for a mere formal objection.  In Civil cases the rule is not so strict.  At the same time it is a difficult thing to draw the line.  This was a mere slip of counsel, who having the witness in Court to prove the partnership was prepared to prove it.  After a case is once closed, we would not allow time to send for another witness, but in a case of mere forgetfulness to prove a fact which the plf was ready to prove, by his only witness, we think we ought not to disturb the verdict.

Rule refused.

Published by the Division of Law, Macquarie University