Skip to Content

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

Murray v. Matthew (1840) NSW Sel Cas (Dowling) 893; [1840] NSWSupC 89

trover, civil procedure, reception of English law, procedure

Supreme Court of New South Wales

Dowling C.J., Willis and Stephen JJ, in Banco, 16 November 1840

Source: Sydney Herald, 19 November 1840

            Murray v. Matthew - This was an action of trover, to recover possession of five horses. The defendant pleaded not guilty to all the horses except one, and as to that one said that the defendant being an innkeeper, the said horse was on the 16th September, 1839, delivered by plaintiff to defendant, as such innkeeper to be by him in the way of his trade and business of an innkeeper, housed, fed, and taken care of for plaintiff, for reward to defendant, and by plaintiff in that behalf to be given, and on the terms that defendant should have lien on the said horse for the price and value of the housing, feeding, and taking care of the said horse, and the materials in that behalf, to be provided by defendant, and that defendant should be entitled to hold the said horse as a security for the payment of such price and value by plaintiff.  And that from the time of the delivery of the aforesaid, the horse has continually hitherto remained in the possession of the defendant, on the said terms and not otherwise; averment that he housed and fed the horse accordingly, and that plaintiff became indebted to him in the sum of £30 for such housing and feeding; which sum remained at the time when &c. was, and still due and in arrear to defendant, of which plaintiff had notice, but hath not paid or tendered the same or any part thereof, wherefore he refused to deliver the horse to the plaintiff, until the said sum of £30 was paid, and hath continually detained, and still doth detain the same as a lien and security for the repayment of the said sum, as he lawfully might, which is the conversion in the declaration mentioned; replication to the first plea, a similiter demurrer to the second plea, that it amounts to the general issue, that it does not traverse or confess and avoid the conversion alleged, or any conversion whatever.  Joinder in demurrer.  The case having been argued on a former day, the Court took time to consider and now gave judgment.

            The Chief Justice said - The question is, whether the special plea pleaded, amounts to the general issue, not guilty only.  I own that at first I was inclined to the opinion, that it amounted to no more than not guilty, but that impression arose from the difficulty of divesting the mind of the old rules of pleading and evidence in the action of trover, before the adoption of the late rules of Westminster Hilary, 4 Wm. IV., 1834.  Before those rules, under the plea of the general issue, the defendant could give a right of lien in evidence to negative the charge of a wrongful conversion; but now, by those rules, as the plea of not guilty puts in issue only the conversion charged in the declaration, the defendant would be shut out from his defence, excusing the conversion, unless the matter of excuse is specially pleaded.  In the declaration here, the defendant is charged with refusing to deliver up the horse of the plaintiff on request.  This is in the law a conversion; at all events it is evidence of a prior conversion; had the defendant contended himself with a simple denial of the conversion so charged, he could not have given his right of lien in evidence, and a verdict must have gone against him, upon proof of a demand and refusal to deliver.  But what does the defendant's plea amount to?  This:- "I confess that I did not deliver on request, and that I did convert and dispose of the horse in the manner you have charged, but I avoid the consequences of that confession, by undertaking to show that I had a lien for the keep of your horse, and that I was not bound to deliver it till you had discharged my lien."  Now it appears to me that the defendant was, under the new rules, compelled to plead this specially, and that the plea does not amount to the general issue, but on the contrary, it is a confession and avoidance of the conversion alleged.  So long as the new rules of pleading shall be in operation I think we are bound to carry the principles of them out.  Those rules were framed by the fifteen Judges of England, after mature deliberation, and in furtherance of that spirit of enlightened improvement which characterizes the age in which we live.  This being a peculiarly English colony, it is desirable to follow the example set us by the collected wisdom of Westminster Hall, in every advance made towards a philosophical and rational improvement in juridical science.  The new rules were adopted by the Judges of this Court, from a persuasion that they were applicable to this Colony, and could be carried out with the same advantage in the administration of justice, as in the Courts of Great Britain.  The only doubt which could be entertained of their applicability, would have been the absence of efficient practitioners; but happily such a difficulty is groundless, for we have now, a strong, able, and accomplished bar, and as competent to aid in the due administratien of justice, I will venture to assert, as any bar in Her Majesty's dominions.  The only difficulty which has hitherto arisen, has been the want of familiarity with the intent and meaning of these rules, but I am persuaded on reflection, that a little more experience will demonstrate their vast utility in simplifying and in diminishing the expense of the administration of justice, - advantages which could not be predicated of the whole practice of the Courts in this and other species of action.  The effect will be to carry out the tone and purpose of special pleading, namely, to bring the litigating parties to issue upon the precise points of difference between them, without leaving them to dive as hitherto, into an unfathomable sea of uncertainty, as to the questions which may be intended to try when they conclude to the country.  One of the great evils in the administration of justice at nisi prius, is the necessity frequently of loading a case; at a frightful expense, with the proof of facts by oral evidence, which have nothing to do with the one point intended to be disputed, but which may now be elicited on the record, and reduced to the greatest possible simplicity and economy, and render the too frequent and expensive applications for new trials, wholly unnecessary.  This is said to be a new case, and that we are not fettered by any that the plea of not guilty only puts in issue the conversion charged, and that if the defendant means to excuse such conversion, he must plead specially the matter of defence.  The conversion here charged in the declaration, amounts to a conversion in fact, or at all events to a presumptive conversion in fact, and must be taken to be so, unless explained by the defendant's special plea.  The defendant by his special plea admits the conversion charged, but justifies, as he was bound to do by specially pleading his right of lien, which raises the true issue between the parties.  The current of all the decisions in the Courts of Westminster on the new rules, goes to show that in actions of tort, the general issue only puts in issue the mere act charged to be wrongful; and if the defendant wishes to show either some incapacity of the plaintiff to sue or complain, or any matter in justification of the act charged to be tortious the defendant must plead specially the incapacitating or the justificatory matter.  This is the effect of the decisions in Vernon v. Shipton 2; Meeson & Walsley 9; Bolton v. Sherman, Id. 395; Philips v. Robinson 4 Bing. 106; Samuel v. Morris, 6 C & P 620; Dunn v. Massey, 6 Ad. & Ell. 479; Richard v. Sears, Id. 469; Pearson v. Graham, Id. 899; Heath v. Milward, 2 Bing. n.c. 98; and Owen v. Knight, 4 Bing, n.c. 54.  It appeared to me that the common sense view of the new rules, requires that the lien should have been specially pleaded and could not be given in evidence under the general issue.

            Mr. Justice Willis said - In this case I have the misfortune to differ from my learned brethren.  The question now before the Court is raised by a demurrer under the new rules of pleading, and is as follows: - Whether in an action of trover, where there has been a refusal to deliver on the ground of lien, the right of lien need be specially pleaded?  It does not appear to me that there has hitherto been any specific decision on this point.  I am aware of the peculiar difficulties which encumber every new question, in consequence of the authority which the judgment of the Court possesses as a precedent to future judicatures; authority which appertains not only to the conclusions the Court delivers, but to the principles and arguments on which they are built.  The view of this effect makes it necessary for a Judge to look beyond the case before him, and to reflect whether the principles, maxims, and reasonings which he adopts and authorises, can be applied with safety to all cases which admit of a comparison with the present.  When justice is rendered to the parties, only half the business of the a court of justice is done , the more important part of its office remains - to put an end for the future to every fear and quarrel and expense upon the same point, and so to regulate its proceedings, that not only a doubt once decided may be stirred no more, but that the whole train of law-suits which issue from one uncertainty may die with the parent question.  Hence the utility of adhering to precedents.  Hence also the wisdom of act varying, by way of experiment, rules which a court of justice has once established for the regulation of its proceedings.  To alter rules of long duration - rules well known and understood - by the introduction of a new system, must necessarily create a degree of legal uncertainty which nothing, I think, but a considerable preponderance of utility can reasonably justify.  The question now for the decision of the Court is at least the second in the action of trover alone, which the recent adoption of the new rules of pleading has already given rise to; a sufficient proof, of these Rules being productive of such uncertainty, as at least to justify me, before I proceed farther, in comparing the merits of the present with the formersystem of pleading, according to the rules of this Court.  The eulogies of Lord Coke, Lord Mansfield, and Sir W. Jones, on Special Pleading, are too well known to require repetition; and to these may be added that of Mr. Serjeant Stephen, who in his treatise on the Principles of Pleading in Civil Actions (first published in 1824, ten years before the promulgation of the "New Rules" in England), informs us, "That English pleading, when properly understood and appreciated, appears to be an instrument so well adapted to the ends of distributive justice, so simple and striking in its fundamental principles, so ingenious and elaborate in its details, as fairly to be entitled to the character of a fine juridical invention."  It appears to me, that every action or suit, of whatever nature, criminal or civil, legal or equitable, has four stages.  In the first, the proceedings are commenced by taking measures to compel the defendant to answer the charge which the complainant is about to prefer against him; in the second, the plaintiff states the facts on which he grounds his claim, and the defendant makes answer, whereby the points in dispute are ascertained; in the third, evidence to prove or disprove the disputed facts is adduced and decided upon; and in the last, measures are taken to enforce the decision of the Judge.  Thus pleading is the second stage in a suit at law.  Without doing more than referring generally to the declarations, even under the New Rules, can a greater mass of absurdity, I would ask, well exist?  The professed and proper object of the declaration is to inform the defendant which is claimed from him, and the grounds on which the plaintiff founds his claim.  Does it do this?  Does the defendant always learn from it the real amount of the plaintiff's demand? does he discover from it on all occasions on what he is sued?  I think not.  It appears to me indeed that the declaration as at present framed does little or nothing, for the most part, towards promoting the ends of which pleading professedly takes place.  It most frequently neither informs the judge (speaking of myself at least) nor the jury what are the real grounds of the plaintiff's case; in general they know no more about the actual question in dispute, after the declaration has been read, than before.  Indeed so unintelligible is this "fine juridical invention," that the plaintiff is compellable in many cases to furnish the defendant with a collateral document, containing the particulars of his demand - a document which specifies what common sense would have specified in the declaration itself.  Every declaration may be met in two ways, viz., by demurrer or plead.  With regard to the former it is said that the ground for demurrer, occasionally (mind, occasionally only) amounts to matter ofsubstance, but it is usually mere matter of form only: and this is said, moreover, by the gentleman who considers the English system of pleading as "fairly entitled to the character of a fine juridical invention."  With respect to the defence by plea, I need only say, that an instance could be adduced of no less than fifty one pleas being pleaded to the whole of a declaration, and not some to one and some to others of the counts, but in fact to a single charge, and this too but a very few years previously to the publication of the learned serjeant's work.  I admit, however, that the "new rules" do not allow of pleas founded on one and the same principal matter, but varied only in statement, description or circumstances.  But though these new rules have effected this improvement, they have, according to a learned writer, as I think is shown by the present case, "occasioned so much confusion and uncertainty as to what defences must be specially pleaded, and what may be given in evidence under the plea of the general issue, that it has become a task of no inconsiderable difficulty for the practitioner to ascertain what course it is safe to pursue."  These new rules have nevertheless been recently adopted here by way of experiment, and I have no doubt under the conscientious impression of their being a "fine juridical invention."  I now revert to the rules of pleading which previously governed the proceedings in this court.  What was formerly the 27th rule of court prescribed "that in any action at law, the plaintiff might file the particulars of his demand," instead of a declaration.  This, however, was subsequently rescinded, and that part of the rule only remained in force which says "that the plaintiff may file a short declaration setting forth in a simple and compendious manner the plaintiff's true cause of action, and particularly avoiding superfluous forms and unnecessary matter."  This mode of pleading rendered recourse to a demurrer very infrequent.  But what was the 31st rule?  The defendant, when the nature of the defence intended to be relied upon would admit of a general denial,might, instead of a special plea, plead the general issue, and file notice of the special matter on which he intended to insist in evidence; and on the general issue only being pleaded, the cause was to be deemed at issue without any further proceeding.  Thus was the declaration of the legal poet verified, viz:

            "That there were lawyers to be found

             For learning and for worth renowned,

             Who, by a summary proceeding,

             Wished to abate all special pleading"

             Join general issue, and dispense

The special facts in evidence."

'Tis true that a system of special pleading, notwithstanding those plain and admirable rules, was beginning to prevail, but the rules themselves remained to adorn this court under the auspices of their sagacious author, the late Chief Justice, of the present Chief Justice, and of Mr. Justice Burton, until, at the instigation of Mr. Justice Stephen, they were recently abolished, and the new pharos of pleading introduced to guide our course.  Its light, however, seems to me to resemble the fires placed by pirates on the rocks to lure incautious vessels to destruction; for, since the new system has prevailed, the Court has been occupied by more arguments on points of pleading, than occurred during the whole of my previous residence in the Colony.  It is a system which, from the case of Stancliffe v. Hardwicke, cited in arguing the question before us, seems evidently to have embarrassed the Judges at Westminster and the bar of England.  A system, which may possibly be considered "a fine juridical invention" by the aboriginals of Port Phillip, and the natives of New Zealand; but a system that, in my humble judgment, is at the present time but little suited for this Colony and its dependencies.  While speaking of pleading, I will avail myself of the occasion it affords, to allude to what I conceive to be a very serious evil, and one which has recently attracted public attention.  I mean a practice which is said to prevail of filing sham pleas, or pleas merely for delay, in actions on bills of exchange or promissory notes; a practice which in my opinion cannot be too strongly reprobated.  Serjeant Hawkins, in his pleas of the Crown, under the head of "Maintenance," says, "It is certain that no counsellor or attorney can justify the using any deceitful practice in maintenance of a client's cause, and that they are liable to be severely punished for all misdemeanors of this kind, not only by the common law, but also by statute."  He then sets forth the statute, 1 Westminster, c. 29, and says, in the construction of this statute, this point has been holden to be within it, viz.: - "Where one pleads a false plea, known to be utterly groundless, and invented merely with a design to delay justice and abuse the Court; and therefore," he adds, "it is said, that if a client desire his attorney to plead such a plea, the attorney ought to enter upon the roll "non sum veraciter informatus, ideo nihil dicit.'"  According to a note I have of a case in 1 Salkeld, p. 515, (I have not the book itself,) "If an attorney plead a false plea it is against his oath, and he may be fined."  A reference to Mr. Tidd's valuable and accurate book of practice, will show the discouragement given to sham pleas in the Courts at Westminster, and 1 Chit. Rep., p. 182, is cited to show that the costs were ordered to be paid by the attorney, thought it appeared he was expressly instructed by the defendant to plead a dilatory plea."  For myself I consider a sham plea as a deliberate falsehood, purposely recorded to delay the due progress of justice.  I have sworn by my oath of office, "that I will indifferently administer justice to all men; nor deny right to any."  To permit therefore justice to be delayed by a false plea, without reprehension, would I think amount to a denial of that right which the suitor is entitled to; and I will not for all the trade of Australia be guilty of what I conceive would be a violation of the spirit of my oath.  I deeply deplore the present pecuniary distress, and most earnestly recommend mutual forbearance, but I never will countenance chicanery or deceit.  The debtor should remember that time unduly obtained may be the ruin of his creditor, whose ruin may sweep way the fortunes of many others.  Again I urged the expediency of reciprocal accommodation; but again do I repeat that I will do the utmost in my power to preserve from the impurity of wilfully false or sham pleas, as they are called, the sacred stream of justice.  But to return from this digression.  The present question can only be decided with reference to the new rules of pleading.  I believe it to be established a refusal to deliver on demand, in the case of a lien, is not in itself a conversion, which may be explained; therefore, although the rule is that "not guilty" denies only the breach of duty or wrongful act alleged - and all matters in confession and avoidance must be specially pleaded - yet, if there have been no conversion, there has been no breach of duty or wrongful act committed; and there is nothing to prevent this being shown by defence under a plea of not guilty.  I think too that it is impossible to read the judgment of the Court in Stancliffe v. Hardwicke, as delivered by Mr. Baron Parke, without collecting that a special plea, in a case of this kind, is unnecessary.  "The Court," says that very distinguished Judge, "are not under the necessity of pronouncing any judgment on this question at present; but nothing that has been said is to be taken as intimation of an opinion, that in such a case where there has been a refusal to deliver on the ground oflien, the right of lien need be specially pleaded."  I consider this as a guide for outweighing Mr. Chitty's quære in its largest acceptation, Mr. Roscoe's opinion, or Mr. Charnock's fears; and I am therefore induced to determine that it is by no means essential that the right of lien should be the subject of a special plea.

            Mr. Justice Stephen said - The object of the rule, restricting the use of the general issue in trover, is obvious.  It is to compel a distinct, statement on the record of the several points of defence, and each in a separate form, so that the plaintiff may know and be prepared for them, and so that the Court, at an early stage of the cause, may be able to determine their sufficiency.  If the defendant mean to dispute the fact oftaking the goods, or of using, or detaining them, he simply pleads not guilty.  If he dispute the plaintiff's property in the goods, or, admitting his general ownership, if he dispute the plaintiff's right to their possession at the time of the conversion relied on, he either takes issue on the allegation in that behalf, which is contained in the declaration, or he pleads specially, showing how and why the plaintiff was not entitled to such possession.  If, not disputing any of these matters, he have grounds on which the taking, using, detaining, or other act of conversion relied on, he either takes issue on the allegation in that behalf, which is contained in the declaration, or he pleads specially, showing how and why the plaintiff was not entitled to such possession.  If, not disputing any of these matters, he have grounds on which the taking, using, detaining, or other act of conversion relied on, may be justified, or by which he isexcused, or discharged, he specially pleads those grounds.  On this system, the object of the rule is attained, and without difficulty.  But if, in the numerous and infinitely varied cases of lien, the general issue alone is to be resorted to, there will be a departure from that system; the object for which the rule was framed will be frustrated, and its advantages be wholly lost.  This is the good sense of the question, and an examination of the modern cases (I believe that I have looked into every one) will show that there is nothing in them opposed to it.  The whole difficulty, including that which arises out of the doubt expressed in Stancliff v. Hardwick, seems to me to be occasioned by the ambiguous use of the term conversion.  In all the old cases, that in Yelverton excepted, the term appears to have been exclusively understood, as of awrongful act only.  But, under the new rules, it is plainly taken as that particular act or circumstance only relied on as a conversion, which will be wrongful or not according to the facts put in issue on the pleadings.  Stancliff v. Hardwick expressly decided that "not guilty" puts in issue the mere fact of conversion; and that where a defendant means to show that his act was not wrongful, he must plead the right or title by which he insists that it is justified.  The Court, however, then draws a distinction; and intimates a doubt as to this being necessary in cases of demand and refusal, where such refusal is on the ground of lien only.  It is on the expression of that doubt that the plaintiffs here mainly rely.  But, with great submission, the ground on which that doubt is placed, seems a very unsatisfactory one.  A demand and refusal, said the Court, are not per se a conversion; but only, evidence of it.  According to Lord C. J. Tindall, however, in Cranch v. White, 1 Bing. N. C. 418, a demand and refusal will amountto a conversion.  But looking on a demand and refusal as merely evidence to prove a conversion, surely the nature of an act, or its quality, cannot depend on the mere mode of proof.  Surely too the mode of pleading to a charge must be the same, whether the charge be established by one kind of proof, or another.  A demand and refusal are evidence of a prior conversion.  That term, according to the very decision in which the doubt is expressed, means some act or fact merely.  The quality of it is a question distinct and separate, and to be raised by a separate and distinct plea.  The fact of a conversion, then, being determined by this evidence, it is obvious that, according to the decision, nothing more on the General Issue is left to try.  If the defendant has set up nothing to show the conversion to be lawful, it is to be taken as unlawful.  The legality of the act, whatever it may be, constituting the conversion, is not in issue, unless specially put in issue.  If the Court had said, that, where there was merely a detentionof goods, and the refusal to deliver was avowedly, and only, on the ground of lien, there was in fact "no conversion," the distinction drawn would have been more intelligible.  For, in that case, no doubt, the issue on not guilty would necessarily be with the defendant.  But this would be opposed to what the Court itself there states.  The demand and refusal would not be evidence of a conversion.  A refusal, of the kind supposed, would negative a conversion.  It would negative the fact not merely of a wrongful conversion, but of any (even a prima facie) conversion.  But, if so, another consequence follows: namely, that in all such cases of refusal, an asserted lienmerely would be sufficient.  Whether such lien were a valid and well founded one, would in this form of action be immaterial I do not find, however, that this is the law.  I do not find it laid down, that trover will not lie in any case where, - without regard to the reality and validity of the lien, - the goods are refused simply on the ground of a merely asserted lien.  But, if the validity of this lien, over and above the fact of the refusal on the ground of lien, be material in the enquiry, equally in trover as in detinue, then it would seem plain enough, - unless the distinction between the "fact" of conversion, and the "justifiableness" of conversion, be vain and idle, - that, under the plea of Not Guilty only, the defence of a lien could in no case come in question.  If a man detain goods on the ground of lien, and that lien be made out, no doubt there is no "wrongful conversion."  But, on the principle explained, it seems clear that, in good sense, as well as according to the rules of law, such a defence, (as far as theconversion is concerned,) is not one in "denial."  On the contrary, as every one will see, it admits the act complained of; but in common parlance, justifies it.  This, indeed, as it appears to me, would be an expression (strictly speaking,) not quite accurate.  Though such a plea may, in form, be one in confession and avoidance," it yet substantially (as I apprehend) is not so.  It in reality does not address itself to the point of "conversion."  It is a defence which, admitting the fact of conversion, and admitting also the plaintiff's property, sets up the lien in denial of his right to possession.  But, whether in strictness this defence of lien be of the one character or the other, it must, in my opinion, in all cases be regarded as admitting a conversion; and therefore as inadmissable under the general issue, which denies a conversion.  The cases will, I think, sufficiently bear out these opinions.  In Owen v. Knight, 1837, there was a plea of lien; for money advanced, on security of that deed there was also a plea, of "not possessed."  The jury having found the former for the defendant, the Court held, that he was entitled to a verdict on the latter equally, on the same facts.  This is not to be taken as deciding that a plea of "not possessed" will be sufficient in all such cases, without showing how and why the plaintiff was not possessed.  The many cases in which lien is pleaded specially lead to the opposite inference.  It is, however, an authority which is important as showing the point to which pleas of this kind, in effect, address themselves.  In Leukart v. Cooper, 1835, Trover against a warehouseman, the Court gave leave to plead four special pleas of Lien; one by agreement, one by usage, and two others.  They would not allow him to plead not guilty.  One of these special pleas afterwards came before the Court in 1836, on a motion for judgmentnon obstante veredicto.  In Jaulling v. Britton, 1837, (Trover v. Wharfinger,) the Court gave defendant leave to plead two special pleas of Lien.  It was stated by the Court to be doubtful whether such pleas were necessary; but though opposed leave was granted.  In Lord v. Wardle, 1837 trover for a deed, there were two special pleas of lien; one setting up a general lien for costs, and the other a special agreement of deposit for costs.  In Marks and another v. Lahee, 1837, trover for copper and etchings, there were two similar pleas; one of deposit for money lien, and the other of lien for work and labour.  Each of these pleas ended by a distinct averment that the detention then mentioned was the same conversion and disposal as the declaration complained of.  The plea in Palmer v. Jarman, trover for a bill, 1837, (to which plea no objection was taken) affords another precedent.  There the plea alleges a delivery of the bill, to be discounted; and that the defendant did discount and appropriate the proceeds as directed.  It seems not to have occurred to the Court, that such a plea as this was bad, as "not admitting a conversion." - I shall say a few words, and but a few, on the new rules of pleading.  To enter into a full exposition of their effect and object, would be here entirely out of place, and would occupy much time.  I content myself with remarking, that, by the very ablest and most distinguished lawyers of England, these laws have been framed according to the best of their lights and judgment, to promote simplicity, certainty, expedition, and economy.  It would be presumptuous in me to suppose that these learned persons knew so little of their profession and of the law as to form rules which were not at all adapted, or were not admirably and completely adapted, to the ends proposed by them.

Source:  Dowling, Select Cases, Vol. 6, State Records of New South Wales, 2/3464, p. 161

[p.161]

Monday 16 Nov. 1840

                                                                     In Banco

                                                                      Coram

                                                                  Dowling C.J.

                                                                      Willis J.

                                                                    Stephen J.

                                                        L. Murray v W. Matthew

Trover for Five Horses.  Plea 1st As to all the horse except one, Not Guilty. & 2d. As to that one, that Deft being an Innkeeper the said horse was on the 16th Sept. 1839. delivered by Plf to Deft as such Innkeeper to be by him in the way of his trade and business of an Innkeeper, housed, fed and taken care of for Plf for reward to Deft, & by Plf in that behalf to be given, and on the terms of that Deft should have lien on the said horse for the price and value of the housing, feeding, & taking care of the said horse & the materials in that behalf to be provided by Deft, & that Deft should be entitle to hold said horse as a security for the payment of such price and value by Plf.  And that from the time of the delivery aforesaid the horse has continually hitherto remained in the possession of the Deft on the said terms & not otherwise, Averment that he housed & fed the horse accordingly & that Plf became indebted to him in the sum of £30 for such housing & feeding, which sum remained at the time when &c. was, & still due & in arrear Deft, of which Plf had notice, [p.162] but hath not paid or tendered the same or any part thereof, wherefore he refused to deliver the horse to the Plf until the said sum of 30£ was paid, & hath continually detained & still doth detain the same as a lien and security for the repayment of the said sum as he lawfully might, which is the conversion in the declaration mentioned.  Replication to the first plea, a similiter demurrer to the second plea, that it does not traverse or confess & avoid the conversion alleged, or any conversion whatever.  Joinder in demurrer.

[p.163]            The question is whether the special plea pleaded amounts to the general issue, Not Guilty.  I own that at first I was inclined to the opinion that it amounted to no more than Not Guilty, but that impression arose from the difficulty of diverting the mind of the old rules of pleading & evidence in the action of trover, before the adoption of the late rules of Westminster Hilary 4 W.4. 1834.  Before those rules, under the plea of the general issue the Deft could give a right of lien in evidence to negative the charge of a wrongful conversion, but now, by those rules as the plea of Not Guilty put in issue only the conversion charged in the declaration, the deft would be shut out from his defence excusing the conversion, unless the matter of excuse is specially pleaded.  In the declaration here the Deft is charged with refusing to deliver up the horse of the plf on request.  This is in law a conversion; at all events it is evidence of a prior conversion.  Had the Deft contented himself with a simple denial of the conversion so charged, he could not have given his right of lien in evidence & a verdict must have gone against [p.164] him upon proof of a demand & refusal to deliver.  But what does the Defts plea amount to?   This: - "I confess that I did not deliver on request, & that I did convert & dispose of the horse in the manner you have charged, but I avoid the consequences of that confession, by undertaking to shew that I had a lien for the keep of your horse, & that I was not bound deliver it till you had discharged my lien."  Now it appears to me that the Deft was, under the new rules compelled to plead this specialty, & that the plea does not amount to the general issue, but on the contrary it is a confession & avoidance of the conversion alleged.  So long as the new rules of pleading shall be in operation I think we are bound to carry the principles of them out.  Those rules were framed by the 15 Judges of England after mature deliberation, & in furtherance of that spirit of enlightened improvement which characterizes the age in which we live.  This being a peculiarly English Colony, it is desirable to follow the example set us by the collected wisdom of Westminster Hall in every advance made towards a philosophical & rational improvement in the juridical science.  The new rules were adopted by the Judges of this Court from a persuasion that they were applicable to this Colony & could be carried out with the same advantage in the administration [p.165] of justice as in the Courts of Great Britain.  The only doubt which could be entertained of their applicability, would have been the absence of efficient practitioners, but happily such a difficulty is groundless, for we have now a strong, able, and accomplished Bar, and as competent to aid in the due administration of justice, I will venture to assert, as any Bar in Her Majesty's dominions.  [p.164]  The only difficulty which has hitherto arisen, has been the want of familiarity with the intent & meaning of these rules, but I am persuaded on reflection that a little more experience will demonstrate [p.165] their vast utility in simplifying & diminishing the expense of the administration of justice, advantaged which could not be predicated of the old practice of the Courts in this & other species of action.  The effect will be to carry out the true and & purpose of special pleading, namely to bring the litigating parties to issue upon the precise points of difference between them, without leaving them to dive as hitherto, into an unfathomable sea of uncertainty a to the questions which may be intended to try when they conclude to the country.  One of the great evils in the administration of justice at nisi prinis, is the necessity frequently of loading a case, at a frightful expense with the proof of facts by oral evidence, which have nothing to do with the true point intended to be disputed, but which now may be elicited on the record & reduced to the greatest possible simplicity & economy, & render the too frequent & expensive applications for new trials wholly unnecessary.  This is said to be a new case & that we are not fettered by any decision, which shall retain us from holding that the plea of Not Guilty only puts in issue the conversion charged, & that if the deft means to excuse such conversion he must plead specially the matter of defence.  The conversion here charged in the declaration amounts to a conversion in fact, or at all events to a presumptive conversion in fact, & must be taken to be so, unless explained by the Defts special plea.  The deft by his special plea admits the conversion charged, but justifies, as he was bound to by specially pleading his right of lien, which raises the true issue between the arties.  The current of all the decisions in the Court of Westminster on the new rules, goes to shew that in actions of tort, the genera issue only puts in issue the mere act charged to be wrongful; & that if the Deft wishes to shew either some incapacity of the Plf to sue or complain, or any matter in justification of the act charged to be tortious the Deft must plead specially the incapacitating or the justificatory matter.  This is the effect of the decisions in Vernon vShipton 2; Meeson & Walsley 9; Bolton v Sherman, Id.395; Philips v Robinson 4 Bing. 106; Samuel v Morris, 6 C & P 620; Dunn v Massey, 6 Ad. & Ell. 479;Richard v Sears, Id. 469; Pearson v Graham, Id. 899; Heath v Milward, 2 Bing, n. c. 98; & Owen v Knight, 4 Bing n. c. 54.  It appeared to me that the common sense view of the new rules, requires that the lien should have been specially pleaded and could not be given in evidence under the general issue. 

Judgmt for Deft.

Published by the Division of Law, Macquarie University