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

Samuel v. Hatfield [1841] NSWSupC 100

civil procedure, false plea

Supreme Court of New South Wales

Stephen J., October 1841

Source: Sydney Herald, 16 October 1841

Before Mr. Justice STEPHEN, in chambers.

In this action now pending, Mr. RODD applied on affidavit to have the plea, filed by the defendant, taken off the file, on the ground that it was false.

            His HONOR enquired if Mr. Rodd, was prepared with any English authorities in support of his application.

            Mr. RODD admitted that he had not any such authority; but he relied solely on a precedent afforded by a late decision of Mr. Justice Burton, in which he believed his Honor the Chief Justice had concurred.

            Mr. Justice STEPHEN, said that precisely the same application had been made to him last month, by Mr. Michi, in the case Reuben v. Green, and that he had then (it being previously to Mr. Justice Burton's decision) promised to grant the application if the learned counsel could produce to him a single case of this kind, in which the Judges at home granted such one. At Mr. Michi's request, the matter stood over for some days, to enable him to look into the books; and finally the plaintiff's attorney admitted that the search had been unsuccessful, and the application was abandoned. He (Mr. Justice Stephen) had not enjoyed the advantage of hearing the grounds of Mr. Justice Burton's decision, and until he had done so, he should, out of respect to his learned colleague, abstain from adjudicating in the present case; he would therefore enlarge the summons until the first day of the Term, when the matter might be openly and fully discussed, and set at rest by a decision of the full Court. In the mean time he would frankly express his own opinion, that he had no power to accede to any such application. It was the common error to confound a simple plea in denial with a sham plea. A false plea and a sham plea were by no means identical. A sham plea was, as it name implied, - either a mere pretence of pleading, or it set up some new affirmative matter, wholly imaginary; or, it was complicated and trickey in its structure, so as to baffle and perplex. In all cases as these, the Court regarded the defendant's act as a pretended, and not a real plea; and, on affidavit of its falsity, they would generally set it aside. But he (Mr. Justice Stephen) ventured to say, that no such case existed as that of setting aside a mere plea in denial, such as the present. It was the privilege of every defendant to put the plaintiff to the proof of his case; and he had no means of doing so but by a plea in denial. He did not mean to say that a defendant could plead as many pleas in denial as he chose, for, at common law, he could only plead one plea. Where, however, a defendant merely took issue on one allegation, could a Judge order his plea to be quashed and set aside? If such a practice could obtain in actions on bills, or notes, why should it not equally obtain in actions on bonds or other written instruments? why not also in actions for wages, or for work and labour? why should a defendant be permitted to deny a promise, or his signature, or the doing of the work, as the case might be, in such actions? On principle there was no more reason for depriving a defendant of his right of denying the claim in these instances, then in another, and so by and bye, we should be subverting the mode of trial provided by law in every action, and trying questions on affidavits by our own authority as judges, instead of by the only legal mode of trial, viz., on oral testimony before a jury. He (Mr. Justice Stephen) looked on such an Act as an inlet to an unconstitutional and unprecedented course of things, and therefore viewed it with great alarm. He was not fond of stretching his judicial powers, and he never should be, and he thought that it would be an unwarranted exercise of power in a court, to deprive a defendant of his right, as exercised in this case, of compelling the plaintiff to go to a trial, according to the established and ancient course of investigation. The morality or immorality of disputing or denying a just claim was not a matter for him, as a Judge, to enter into. The simple question was, had he a right to try and determine on affidavit and without trial by jury, whether the claim was just or not. If he had the power and were extensively to exercise it, the constitutional mode of trial, and course of investigation, which remained the law of the land at this hour, would be entirely changed and subverted. This was the consequence, to which he felt himself bound to look. He did not sit there to introduce new modes of trial; that was the province of the Legislature. For these reasons, which he had thought it proper to give, as most strongly operating on his mind, he could not acquiesce in the decision of his Honor, Mr. Justice Burton, who probably had not before him the English cases in which the Judges in England had expressly repudiated the power which he was asked to exercise. If, however, what he now referred to had been overruled, or, he (Mr. Justice Stephen) could be convinced that such a power resided in him, he would have no objection to hear Mr. Rodd again; and he repeated that, on the other hand, until he could have the benefit of hearing Mr. Justice Burton's reasons, he could not deem it respectful to dismiss the application. He then enlarged the summons till the first day of Term.

            Mr. RODD subsequently observed that he had thought it his duty, at his client's express desire, to make the application; but he frankly acknowledged, that there was no precedent for it in the books; and that (as he understood) the opinion of the Bar was, that such an application could not be supported.

Published by the Division of Law, Macquarie University