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

Lockyer v. Hughes (1843) NSW Sel Cas (Dowling) 903; [1843] NSWSupC 15

civil procedure

Supreme Court of New South Wales

Dowling C.J. , 17 July 1843

Source: Dowling, Select Cases , Vol. 7, S.R.N.S.W. 2/3465, p. 143

Where plaintiff had not proceeded to trial, the defendant is entitled to judgment as in the case of a nonsuit if the plaintiff does not bring his cause to trial as soon as practicable.*

This was an action of assumpsit. The plaintiff recovered a verdict in assumpsit last year and on the motion of the defendant a new trial was granted in November. Last term this defendant moved for judgment as in a case of a nonsuit, the plaintiff not having proceeded to trial. This was resisted on the ground that the defendant might have himself set down the cause and given notice of trial to the plaintiff, and not having so done he could not now move for judgment as in a case of a nonsuit.

The Court has looked into this point and are of the opinion that the defendant is entitled to judgment as in a case of nonsuit. It may be that he might have set down the cause himself, but it does not appear to us that he was bound to do so. By the rules of our Court, the plaintiff is to be an active party in bringing his cause to trial as soon as practicable, and if he fails to do so without sufficient excuse, the defendant will be entitled to judgment of nonsuit. We think this rule must be made absolute. In practice there may have been cases in which the defendant has in fact set down the cause himself, but we have no rule of Court which makes it obligatory for him to do so.

Rule absolute.

Published by the Division of Law, Macquarie University