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

Were v. Smyth

civil procedure, pleading

Supreme Court of New South Wales, Port Phillip

Willis J., 12 June 1841

Source: Port Phillip Patriot, 14 June 1841

Were and another v. Smyth and another. On demurrer, Mr. Barry, who appeared in support of the demurrer, urged that the plea filed in this case was insufficient.

Judge Willis: the point you have to argue upon is the objection you have made on the margin of the demurrer. The plaintiff has followed the rules of pleading prescribed by this court (as illustrated in the forms set forth in the supplement of these rules) in the terms of his declaration, a declaration which neither in the commencement or conclusion is according to the English practice of special pleading, because the defendant has followed the same, and followed the form of general denial given likewise in the supplement to the rules of the court, and has not in express terms "concluded to the country." The plaintiff has demurred; the plea I think sufficiently shows the defence insisted upon is such a defence as must be "inquired of by the country," and is in compliance with the rules of this court, which were expressly framed to avoid all special pleading. The forms in the supplement which appear to have been followed in the present case, are those given by Lord Brougham in the appendix to his Local Courts Bill, which passed the House of Commons. Mr. Justice Burton, is I find of opinion that the old system was much better than the present system of special pleading; in a Sydney journal of the 27 th of May, there appears the following report:---

MARTHA STEPHENS v. S.C. FANIER.---This was an action of assumpsit on the defendant's two promissory notes to the plaintiff. The pleadings ran to some length in this case, and Mr. Justice Burton said that he must confess he did not see the use of the new system of special pleading, which the pleadings so long and so voluminous; and in his opinion, the general issue under the old system would answer much better.

The one I have followed would answer much better than the new English rules of special pleading adopted by Chief Justice Dowling and Mr. Justice Stephen, and the demonstration of these new rules is one of the causes of the present distress. In a Sydney newspaper, the Australian , perhaps the best legal authority in the colony, I perceive in one of the leading articles an observation which tends to confirm the opinion I have ever entertained on this subject:---

"The great harvest reaped by the lawyers, arises out of small cases of debtor and creditor, say to the amount of $50, and is occasioned by the new special pleading rules of the Supreme Court. More justice was done, and less inordinate gains accrued to the solicitors, and the Court generally, in former days, previously to the opening of the door to the pernicious special pleading. Then matters were more summarily determined."

A long discussion on points of practice now followed, which, as they can be of no possible interest to the public, we shall omit, with the exception of one observation made by the learned Judge, who said, if special pleading according to the English law was established here, he was sure none of the profession would understand it.

Mr. Brewster opposed the demurrer, which was dismissed with costs.

Published by the Division of Law, Macquarie University