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

Smith v. Rose [1834] NSWSupC 66

currency - law reporting

Supreme Court of New South Wales

Dowling J., 5 June 1834

Source: Australian, 10 June 1834[1 ]

With the present Term of the Supreme Court, we have commenced a complete report of all cases tried on the Civil side of the Court, and all decisions in banco, for the accuracy of which we pledge ourselves.  They will be continued regularly, and will form to those who may be disposed to take any interest upon the point, a brief but connected and correct report of the proceedings of the Supreme Court.

Thursday. - Before Mr. Justice Dowling, and J. E. Manning and A. Kinghorne, Esquires, Assessors.

Smith v. Rose.  - This was an action on the case brought to recover a compensation in damages, for that the defendant maliciously pretending that certain rent was due and in arrear from the plaintiff, did seize certain articles of furniture as a distress, in consequence of which the plaintiff was obliged to enter into a replevin bond.  The second count was of a similar nature, but admitted that a smaller portion of rent was due than was distrained for.  The third count was in trover.  The defendant pleaded the general issue.

It appeared that in 1825 the plaintiff had hired a house in O'Connell street from the defendant, at a weekly rent.  The rent was never regularly paid, but certain payments were  made on account at various periods.  The defendant distrained for £71, and the plaintiff admitted only about £18 as being due.  The difference between the parties arose on the question whether the rent was sterling or currency.

The learned Judge left it to the Assessors upon that point as a question of evidence for them to decide, premising, that in the absence of any express understanding they must take the account as a sterling one.  They would look at the receipts of the defendant and the account put in by the plaintiff, and as they would find what the nature of the agreement was between the parties, so they would find their verdict.

The Assessors found a verdict for the defendant.

Keith and Sheehy for the plaintiff; Norton for defendant.



[1 ] See also Sydney Herald, 5 June 1834; Sydney Gazette, 7 June 1834.  For the trial notes, see Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3281, vol. 98, p. 63.

The Australian reported on 27 June 1834 that the judges had interfered with its plan to publish law reports.  An officer of the court supplied accurate reports two or three times, but the judges told him to stop doing so.  The Australian speculated that this decision had been precipitated by a complaint by the Monitor, and the judges were afraid of being partial to one newspaper.

Published by the Division of Law, Macquarie University