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

Broughton v. Clarke [1847] NSWSupC 9


Supreme Court of New South Wales

Stephens C.J., 31 May 1847

Source: Sydney Morning Herald, 3 June 1847, in Supreme Court Collection, Vol. 1, p. 118  



The defendant in this case applied to set aside the judgment by default, which the plaintiff had signed against him, for irregularity. His HONOR the Chief JUSTICE now delivered the following decision:- By the S.R. 51 (Prac. 157) a defendant is allowed four days "after the day appointed for appearing," for filing his plea. By the summons in this case, the day appointed for appearing was the 20 th of May; the fourth day next following was of course the 24 th of May; but that day was a holiday; and by the Rule of 1841 (Prac. 55), no business can be transacted in any of the offices of the Court, on any such day. The first question is, under such circumstances, whether the day limited for the plea was the 24 th or 25 th of May. The plaintiff's attorney gave notice by the indorsement on the summons for the 24 th ; the defendant contends that this was a dies non, and that the time for pleading did not expire until the 25th of May. If he is right in his impression, the judgment which was signed against him, on the 27th of May, was premature; inasmuch as he appeared, and gave notice of his appearance before the 25 th, and therefore had four days next afterwards for pleading, see Rule of 1843 (Prac. 158.)

His HONOR was of opinion, after conferring with the other Judges, that the defendant's view in this matter was the correct one; and consequently that the judgment must be set aside; but as the point was a new one, and the practice is said to be unsettled, and the defendant has delayed his proceedings unnecessarily until the last moment, costs would not be given him, except in the event of his succeeding in the trial. Being with the defendant on the first point, his Honor said it was unnecessary to decide the second, which he had raised, namely, that he was, in any event, within time, and so the judgment was erroneous; he contending that an appearance was in fact on the 22nd May, but that the notice was not served till the 24th May. If, therefore, the latter was the proper day for pleading, originally limited, the literal terms of the rule (Prac. 158) give no further time; and the plaintiff asserts that by several recent discisions of the Judges the literal terms are to be adhered to. The defendant, on the contrary, relied on two decisions, pronounced it is said in the year 1844, to the effect that the "day" limited for pleading is to be taken as if it were the "time" limited for pleading. It may be right, therefore, to state, merely as a matter of fact, that the last mentioned construction has been lately, as it is believed by all the Judges, repudiated; and that a defendant is not entitled to four additional days, unless the appearance and notice be before the day as originally limited in the strict and literal terms of the rule.

Published by the Division of Law, Macquarie University