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

Jennerett v. Smeathman [1834] NSWSupC 26

perjury - appeals - medical attendance

Supreme Court of New South Wales

Forbes C.J., 5 March 1834

Source: Australian, 7 March 1834[1 ]

Jeanneret v. Smeathman. - This was an action brought to recover the sum of of [sic] £31 10s. for a set of false artificial teeth alleged to have been supplied to defendants wife.  The defendant had pleaded the general issue, and paid £7 into Court in full.

The following is a sketch of the case, about eighteen months ago, Mrs. S. finding herself in want of some teeth, applied to plaintiff, who made her four, three for the upper and one for the lower jaw, mounted upon gold springs, through some strange circumstance plaintiff now brought his action to a whole set, and even went so far as to put into the box a brother in law of plaintiffs, who swore that sixteen double and three single teeth were made, and that Mrs. S. had only live natural teeth in her head, when it was most incontestibly [sic] proved that only four had been made, and that Mrs. S. had eleven natural teeth in her head.  The Chief Justice put the case to the Jury in the following way, no defence had been set up that the articles supplied were not necessaries, if appeared to be admitted that they were necessary - the question for the consideration of the assessors was, whether the work alleged to have been was done, and if done, what was the value of it.

The Jury found for defendant, being of opinion that the seven pounds paid into Court was more than equivalent to the work done.

Mr. D. Chambers for plaintiff, and Mr. Wentworth for defendant.

 

Forbes C.J., Dowling and Burton JJ, 15 March 1834

Source: Sydney Herald, 17 March 1834[2 ]

 

Jenneret v. Smeathman. - The Chief Justice stated that this was an action of assumpsit brought to recover a balance of an account for 19 Teeth, supplied to defendant, and medical attendance.  In this case the plaintiff was nonsuited, and moved for a new trial on the grounds that the defence set up on the occasion was a fraudulent one.  The learned Judge then read the evidence.  Mr. Chambers stated that the ground on which he moved for a new trial was, that the defence produced before the Court was a fraudulent one, and both the plaintiff and the Counsel were taken by surprise.  No anticipation could have been made, that such a defence would have been set up, and if a new trial was granted, plaintiff would be able to produce persons to prove that the number of teeth charged had actually been supplied.  The contradictory evidence given on the occasion had excited great surprise, and one or other of the parties must have perjured themselves.  Mr. Chambers therefore contended that setting aside even the first ground for a new trial, a new one ought to be granted, in order that the perjured party in question may be brought to justice.  A material witness had been subpoened on part of plaintiff, but on the trial he was non est inventus.

Mr. Wentworth stated that it had been elicited from Jenneret's affidavit, which was read by Mr. Chambers, that the chief ground for a new trial was, that many material witnesses could be produced to support the just claim of plaintiff.  If Thomas Lambert were a material witness, why was not the nature of his evidence adduced. - Mr. Wentworth here quoted an authority stating that in a similar case, refusal had been given, because motion had not been made to put off the trial, on the ground of the absence of a material witness.  There was, he said, an evident case of perjury on the part of some of the witnesses.  Why did not the plaintiff bring forward the whole host of witnesses he speaks of, instead of putting his own brother-in-law in the box.  Merret had made an affidavit that Smeathman who gave his evidence on the trial, was in Court during the examination of other witnesses in the case.  A counter affidavit was produced on the part of Smeathman, in which he swore that he was not in Court until called upon to give his testimony, and that not more than three teeth had been supplied by plaintiff to his mother.  The plea of surprise being the ground for claiming a new trial was decidedly groundless.  This was a case peculiarly for the attention of the Assessors, being a case of evidence, and they came to a very right conclusion on the occasion.

His Honor Judge Dowling stated, that he had, conjointly with his learned colleagues, carefully examined the case in question, and they were of opinion, that the verdict should not be disturbed.  The ground of surprise ought to have been anticipated, and guarded against accordingly.[ 3]  The Assessors were competent to adjudicate, and the Court could not interfere, unless there was a manifest display of injustice.  If any of the parties had sworn false, there was a regular method to be adopted to bring them to justice; but to grant a new trial, because, from conflicting testimony, some of the witnesses were supposed to have perjured themselves, would be adopting a dangerous precedent. - Motion refused.

 

Notes

[1 ] The Sydney Gazette, 6 March 1834, stated that its reporter was not in court during the trial.  The action was brought to recover upwards of £30 for professional services rendered by a dentist to the wife of Major Smeathman, the Coroner of Sydney.  Two other dentists gave evidence that all but one of Mrs Smeathman's teeth were her own.  That was not quite accurate, said the Gazette: she had lost two teeth, and the plaintiff replaced them in their correct position by the aid of gold wire.  See also Sydney Herald, 10 March 1834.

[2 ] See also Australian, 17 March 1834.  It said that there were five grounds of appeal: that the verdict was against the weight of the evidence; that the defence set up was unjust and a surprise; ``upon affidavits filed"; upon the absence of a material witness; and that H. Smeathman one of the defendant's witnesses was in court during the trial, despite all witnesses being directed to leave the court.

Dowling, Proceedings of the Supreme Court, vol. 94, State Records of New South Wales, 2/3277, p. 51 records the judgment as follows: ``Assumpsit for work & labour in making a set of artificial teeth.  Non. Ass. & £7.10. paid into court.  At trial before Forbes C.J. the Deft had a verdict.  A motion was now made for a new trial, & refused on the ground that it was a proper case for the assessors whose verdict was binding."

[ 3] The Australian, 17 March 1834, reported that Dowling J. said that the payment of money into court should have awakened the suspicion of the court as to the defence to be set up.

Published by the Division of Law, Macquarie University