Australian Access Federation

You are here: Home Corpora Corpus of Oz Early English 1-253 (Raw)

1-253 (Raw)

Item metadata
author,male,Morning Chronicle, The,un addressee
Word Count :
Plaint Text :
Speech Based
Decisions of NSW Supreme Court
Document metadata

1-253-raw.txt — 6 KB

File contents

The following case, lately decided in the Supreme Court of New South Wales, is reported as very important to Merchants in England who have any debtors or mercantile connexions in that Colony, where a general feeling has evinced itself amongst the honest inhabitants, on many occasions, to keep in the Colony all the money they can, to the prejudice of their just creditors here. We know very little of Mr. Forbes, the gentleman who presides as sole Judge, at this place, or where he has acquired his great legal knowledge, excepting that it may have been at Newfoundland, where he is said to have presided as Judge for a considerable length of time. We must, however, say, that he is extremely popular in New South Wales. It is to be remarked, that none of the Colonial Newspapers made any report of the trial; but it is, at the same time, to be observed, that the defendant had held a situation in the Courts of Law at that place.
D. Willink, Esq, against J.J. Moore, Gent. - This was an action of assumpsit on common promises, and was brought to recover the sum of 200£. due from the defendant to the plaintiff. In the year 1812, the defendant gave the plaintiff his acknowledgement for this sum, &c. &c. &c. The defendant kept entirely aloof from the plaintiff from this moment, and about three years after took his departure from England for New South Wales, where through the interest of some friends, he obtained an appointment of Registrar, and afterwards of Prothonotary, or Clerk to the Supreme Court. In 1821, the plaintiff having ascertained what had become of the defendant, wrote to a professional gentleman in the Colony to apply to him for his just and reasonable demand of 200£. A considerable delay took place in procuring the requisite legal evidence of the demand, to go into a Court of Justice with. This did not arrive in the Colony until February 1824, and in consequence of the great alterations which were taking place in the officers and practice of the Courts consequent on the new Charter of Justice, the cause could not be brought before the Court until December of that year, when the defendant pleaded and relied on the Statute of Limitations alone as a defence. The pleadings on the part of the plaintiff, in answer to the Statute Limitations, set out the fact of the plaintiff being beyond seas (i.e.) in England, at the time the action accrued, and had not since been within the jurisdiction of the New South Wales' Courts. The defendant rejoined, that he was also in England at the time the cause of action accrued, and that no action had been commenced or prosecuted within six years - to which the plaintiff answered, that the defendant had left England about three years after the cause of action accrued; that the plaintiff was not bound by the laws of the realm to bring his action within a less period of time than six years, and that the defendant had absconded long previous to the expiration of such six years. On the part of the plaintiff, it was urged - first, that the Statutes of Limitations were never meant by the Legislature to apply to the Colonies, and that they were, by the wording of the Statutes themselves, confined to England, and the parts within the four circum adjacent seas. That, secondly, supposing the statutes to have effect in ordinary cases within the Colony, they should not apply in the present case, because they must operate in the Colonial Courts in the same way that they do in the Courts at Westminster, and one of the exceptions in the statute is, that of the plaintiff being beyond seas at the time of the action accruing. It was further urged that the Statutes of Limitations never, in any case, have been suffered to work an injury to any set of men, that they were salutary and beneficial acts for quitting pretended long outstanding and trumped-up demands. That the Courts in England always gave them an equitable construction suitable to the construction of the case; that if they were to be constructed according to the strict letter of the acts neither a new premise nor a case of fraud should exempt any demand from their operation, both of which circumstances, as well as many others of a similar nature, it was every day's practice to [NN] ce contrary decisions on. That if these acts were held to apply to the present case, it would work a most serious injustice, not only to the present plaintiff, but to all merchants who had any dealings with the numerous persons who had lately come to the Colony, as it was next to impossible for any merchant in England to ascertain to what place his debtor had flown; and after having ascertained it, to forward the necessary proofs of his demand, to so distant a place in sufficient time* for the action to be brought before the six years should have expired. Amongst other cases cited, and the one particularly relied on, was, that of Williams against Jones, tried in the Court of King's Bench, May 7th, 1811, and the whole of the arguments there urged, were made use of in the present case. It is cited at some length in 13 East, 439, and seems to be as similar to the case in question, as any two can possibly be, and in which Lord Ellenborough, C.J., Mr. Justice Grose, and Mr. Justice Bayley (Mr. Justice Le Blanc being ill and absent), all concurred in opinion that the Statutes of Limitations did not apply. In the present case, Mr. Forbes, Chief Justice in New South Wales, gave judgment for the defendant, without alleging any other reason than that the opinions given by Lord Ellenborough and Judges Grose and Bayley, in the case of Williams v. Jones, were not law, and that what was a legal act in one country, where that act was done or committed, must be held to be legal in any other country where the same act comes to be investigated or inquired into, and on that principle he decided this case.
This report left Sydney on the 19th March, 1825, and arrived here the 17th September, so that that the transmission of any document required, or a letter containing an answer, might be obtained in about a year.