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

Macarthur v. Smart (1843) NSW Sel Cas (Dowling) 899; [1843] NSWSupC 16


Supreme Court of New South Wales

Dowling C.J., Burton and Stephen JJ, 17 July 1843

Source: Dowling, Select Cases, Vol. 7, S.R.N.S.W. 2/3465. p. 119

Where a defendant enters into an agreement to make payment on terms in the belief that the plaintiff has obtained an enforceable judgment, but in fact judgment had not been entered; held that the agreement was not enforceable. A judgment in law has a technical, legal meaning and does not mean a mere inchoate right to obtain a judgment.*

This case was stood over for judgment from last term. It was an action of special assumpsit, tried before Stephen J. and assessors on the 15 February last.

The declaration stated that the plaintiff for and on behalf of the Bank of Australia had recovered judgment in this Court against one James Nowlan for £149.18.11, upon which judgment the plaintiff was then proceeding to enforce execution according to law, and thereupon, on the 16 April 1842, the defendant in consideration that the plaintiff would suspend the said execution for the space of two months or until delivery of certain cattle to defendant theretofore bought by him from Nowlan, the defendant promised the plaintiff to pay him the amount of the judgment so soon as those cattle should have been delivered to him to such an amount as would cover it. Pleas: 1. That plaintiff had not before the making of the promise in the declaration mentioned, recovered a judgment against Nowlan and 2. That the defendant did not receive the cattle in the declaration mentioned to an amount more than sufficient to cover the judgment. Issue on these pleas.

At the trial the plaintiff relied upon the following letter addressed by the defendant to the plaintiff's attorney.

April 16 1842.


Macarthur v. Nowlan

Having purchased some cattle from Mr Nowlan , I undertake to pay you the amount of the judgment obtained by you on behalf of the Bank of Australia against him with interest and expenses, upon you suspending execution for two months till delivery of the cattle is duly made to me to such an amount as will cover the principal and interest and costs. Yours obediently, T.W. Smart.

It appeared in evidence that the action against Nowlan at the suit of the plaintiff was upon a promissory note, to which he neither pleaded nor appeared and on the 14 April, two days before the date of the defendant's letter, the Chief Clerk of the Court computed principal and interest. Final judgment was not entered against Nowlan till the 19th April three days after the defendant's letter. It is not the practice of the Court actually to enter or sign interlocutory judgment. By the practice of the Court no computation of principal and interest on any bill or note can take place till after the default of appearance and plea, and that such computation is by the practice regarded as a judgment by default.

It was objected that as the declaration averred that the plaintiff had recovered a judgment and was then proceeding to enforce execution thereon before the date of the promise, and not having in fact obtained a judgment until after and the plaintiff not being in a condition to enforce execution against Nowlan at the time after promise, the verdict must be found for the defendant on the issue. The learned Judge said he would tell the assessors that they were bound to find for the defendant, being of the opinion that the averment that the plaintiff had recovered a judgment, which must mean a judgment upon which at the time of the promise he could have taken out execution, had not been made out.

The plaintiff's counsel then moved for leave to amend the record according to the facts, but the learned Judge declined and said he would avail himself of the power given to a judge by the 5 Vic. No. 9 (1841), s. 38 and direct the assessors to find the facts according to the evidence for the opinion of the Court as to the materiality of the variance. The learned Judge the directed the assessors that the judgment mentioned in the declaration must be taken to mean final judgment, that being the only judgment according to the practice of the Court on which execution could be taken out, before the date of the defendants' promise but required them to find the facts specially. Upon the second issue he told them that although upon the evidence the defendant had purchased cattle of Nowlan two or three different times, yet they must be satisfied that he had received enough bought on or before the 16th April out of which he might have satisfied the plaintiff's demand.

The assessors found a verdict for the plaintiff on the second issue and assessed his damages at £149.18.11 and for the defendant on the first issue, and in relation thereto found specially on the facts already set forth, leave being reserved to the plaintiff to move the Court to enter a verdict for him on the first issue. Cross motions were made by the plaintiff and defendant respectively. For the plaintiff: that the verdict might be entered for him on the first issue in pursuance of the leave given at the trial; or that notwithstanding the finding of the assessors thereon the Court might give judgment for the plaintiff according to the right and justice of the case upon the facts found by the assessors; or that if necessary that judgment might be entered for the plaintiff on that issue, non obstante veredicto, on the ground that the defendant's first plea raised an immaterial issue, the gist of the action being that in consideration of plaintiff's suspending certain legal proceedings mentioned in the declaration, and which were therein mentioned to have been suspended accordingly, the defendant promised to perform a certain act and failed in performing it and therefore the fact of the plaintiff not having actually recovered judgment as alleged formed no part of the consideration and was therefore immaterial to the merits of the case; and failing the success on these motions, that a repleader might be awarded on the same grounds as those for judgment non obstante veredicto. For the defendant it was moved that the damages that on the second issue be struck off the verdict, and judgment be given on the first issued for the defendant, or that the verdict on the second issue be set aside and judgment entered for the defendant or that judgment be entered generally for the defendant or that the verdict be set aside and a nonsuit entered or a new trial had.

The main question for our determination is whether the variance in proof from the statement of the cause of action on the record is of so merely technical a nature as in the first instance to have warranted the Judge in allowing an amendment at the trial or in the second for the Court now to hold that it was so immaterial to the merits that it could not prejudice the defendant and therefore that we are, in the language of the 5 Vic. No. 9 s. 38, bound to give judgment according to the right and justice of the case.

The defendant by his first plea directly puts in issue the fact averred in the declaration that the plaintiff had recovered a judgment upon which he could take out execution on the 16th April, the time of the defendant's promise. The assessors have negatived that fact by their finding and although they accompany their verdict with a special statement of the facts, yet it is extremely doubtful to us whether this is a case variance within the meaning of the Act and is not rather one where the plaintiff states a different cause of action in his declaration from that which he seeks to establish by evidence. The plaintiff avers that he had recovered a judgment, upon which judgment he was then proceeding to enforce execution according to law and that he was in that position on the 16th April when the defendant made his promise. According to the evidence he had not then recovered a judgment and was not in a position to take out execution. On the contrary, judgment according to the course and practice of the Court was not signed until the 19th April and he was in no condition till then to take out execution. The plaintiff therefore failed in proving his averment. The consideration for the defendant's promise is the forebearance of the plaintiff to put in force a complete and binding judgment against Nowlan and under the persuasion that execution could otherwise not be stayed, he undertook to satisfy the judgment in the manner stated.

The supposed ability of the plaintiff by the exigency of the law to enforce the judgment, must be taken be the moving consideration for the defendant's promise at the time it was made. That being the issue of the consideration, the plaintiff could not set up a matter ex post facto to make out a case not truly stated in his declaration. This was not a past but a future consideration. The materiality of the mode of stating the cause of action is that probably if the defendant knew that the plaintiff had not signed a judgment, and was not in a condition to take out execution against Nowlan he would not have signed the letter of the 16th April. It may be that the defendant in that letter, signed it is true by him but written by the clerk of the plaintiff's attorney, says "I undertake to pay you the amount of the judgment obtained by you on behalf of the Bank of Australia" amounts to an admission that the plaintiff had recovered a judgment, but this was only admitting the representation made to him by the attorney thereunder that the plaintiff had obtained a judgment. Taking this admission as strongly as possible against the defendant it appears to us that it did not shut him out from pleading and shewing that in fact the plaintiff had not recovered any such judgment.

A judgment at law must be taken to have a technical, legal meaning and not a mere inchoate right to obtain a judgment. The plaintiff by his declaration has made the fact of having obtained a complete and perfect judgment at law on which he could take out execution a material averment which he was bound to prove. This was not a matter of inducement but the description of the contract by which the defendant was sought to be made liable. The stay of execution, upon a binding judgment which could be enforced on the 16th April, was the gist of the consideration for the promise. That could not be true, for at that time the plaintiff could not suspend execution having in fact no judgment which he could enforce. Our decision may be seemingly against the right and justice of the case, but we are constrained to hold that the plaintiff having tied himself up by the mode of stating his cause of action, which the defendant has put directly in issue, and having failed to prove it as laid, we cannot give judgment in his favour on the finding of the assessors. The defendant has asked for a nonsuit by his motion. To this we accede and direct a nonsuit be entered accordingly, which would not prevent the plaintiff from bringing another action and stating his case in such manner as he shall be advised.

Judgment of nonsuit.

Published by the Division of Law, Macquarie University