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

Murphy v Paul [1835] NSWSupC 56; sub nom. Murphy v. Paul (No. 1) (1835) NSW Sel Cas (Dowling) 890; and Murphy v. Paul (No. 2) (1835) NSW Sel Cas (Dowling) 892

civil procedure - demurrer - debt, action in

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 30 March 1835

Source: Dowling, Select Cases, Vol. 4, Archives Office of New South Wales, 2/3463



30th March]

[Where plf declared in debt on a sealed agreement between him & Deft to be paid for making soap & candles at so much per pound respectively, without setting out the quantity of eacharticle made.  Held ill on demurrer.]

In Banco

John Murphy v John Paul Jun.

Debt on a sealed agreement between Plf & deft dated 30th April 1834.  After reciting that Deft had agreed with Plf for managing conducting & working the manufacture of soap and candles & other business of a soap boiler for one whole year, it was agreed that deft should pay the Plf by weekly payments the sum of one half penny per pound for all soap, three half pence for mould, & one half penny for dip candles, without regard to any expense or outgoings whatever.  Averment "that plf by his management, superintendence & working did make a great quantity of soap & also of mould candles & dip candles for which he was entitled to the weekly payments as aforesaid from the Deft.  Breach that deft hath neglected & refused to pay Plf by said weekly payments the sum of one half penny per pound for all soap, three [p.119] half pence for mould & one half penny for dip candles without regard to any expense or outgoings whatever, although requested by Plf so to do to wit: re Demurrer to the declaration assigning for causes, that it is not averred that Plf made a pound of soap or of mould candles or of dip candles, - nor averred what quantity of soap & of mould candles & of dip candles respectively were made by Plf for Defendant; nor averred that Plf made any soap or mould candles or dip candles for Deft; nor averred that Deft had notice that plf had made any soap or mould candles or dip candles.

Joinder in demurrer.

S. Stephen in support of the demurrer, contended that the omission to specify the quantity of work performed under the contract was a fatal objection & in violation of all rules of pleading, & he relied upon Stephen on Pleading 2 Ed.pp.347. 349. and the cases there collected.  He was [p.120] stopped by the Court.

Plunkett contra relied upon the 27th rule of this Court, which authorizes the Plf in all cases to file a short declaration setting forth in a plain, simple and compendious manner, the true cause for which the Plf brings his action and particularly avoiding all superfluous forms and unnecessary matter.  No doubt it is usual to set out quantity & quality under a videlicet, but it is not necessary in such cases to prove the quantity & quality.  The videlicet does not tie down the party to prove the quantity & quality so stated.  It is necessary therefore to state what [?] not be proved.

Forbes CJ.  You have put the case in the only way in which it can be put to help the difficulty; but you have not adhered to the spirit of the rule of Court, which no doubt authorizes a short & summary statement of the Plf's case, so that it shall be equivalent to a declaration [p.121] according to the English rules.  This rule does not dispense with the certainty of stating what you really go for in quantity.  Here the Plf has not set forth with sufficient certainty the ground of his claim or the measure of it.  He claims to be paid at a certain rate but that must depend upon the quantity of the work done.  Here no quantity is shewn, in order to ascertain the amount of remuneration he claims.  This declaration therefore is radically defective not only on this but on the other points of demurrer.  If parties will unnecessarily hamper themselves with the special pleading they must abide by the rules of the special pleading.  It is too clear for argument that this declaration is defective, & the Deft must have judgment; but we will allow the Plf to amend on payment of costs.  The Court does not encourage objections of form, but where they are relied upon, we cannot help ourselves.

Dowling J & Burton J. same opinion

Judgment for Deft on demurrer.



Forbes C.J., Dowling and Burton JJ, 11 July 1835

Source: Dowling, Select Cases, Vol. 7, Archives Office of New South Wales, 2/3465




11th July]

[If there are issues of law & of fact, the Plf may try his cause upon the latter first, unless restrained by the Court until the issues of law are disposed of.  A verdict obtained upon issues of fact, before a demurrer is argued upon a plea of law, is not irregular if the deft has taken no steps to stay the trial.]

Murphy v Paul

Covenant on sealed articles of agreement.  Pleas 1st. Non est factum 2nd. Performance of the Covenant & 3rd.  Excuse for non performance.  The Plf took issue upon the first & second pleas, and demurred specially to the third, for that being special, it required to be signed by Counsel & was not.  The Deft joined in demurrer.  The Plf afterwards treated the third plea as a nullity, & set his cause down for trial, & being undefended obtained a verdict for £48.10.

Stephen now moved to set aside the verdict for irregularity, & contended that the Plf had no right to set down his cause for trial until the demurrer to the third plea was disposed of.

Plunkett S.G.  If there are several issues, some of law & others of fact, the Plf may try his cause upon the latter at his option, unless restrained by a rule to stay proceedings until the issues of law are disposed of. [p.26]  It was the duty of the Deft to apply to the Court to have the trial of the issues of fact postponed until the demurrer was argued & determined, & having failed so to do, the Plf might regularly try the issues of fact first.  Beside the third plea is a mere nullity.

Forbes CJ.  There is no irregularity in this verdict.  It is a rule of practice, that if there are issues of law & of fact, it is in the power of the Plf; if he thinks fit to have his cause tried upon the latter.  If the deft wished to have the issue of law first disposed of, he should have applied to the Court to stay the trial of the issues of fact, until the others were disposed of.  He has not done so, & I think the Plf was at liberty to treat the third plea as a nullity, & the effect of the demurrer does not alter the case.  Whether there may be another ulterior application, to enter up judgment non-obstante veredicto is a different matter.

Dowling & Burton Js concurred.

Rule refused.[1 ]



[ 1] There was a further hearing on 6 August 1835: Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2420, vol. 19, p. 26.

Published by the Division of Law, Macquarie University