[appeal, non-prosecution of – bill of exchange]

Kable v. Harris

Appeal Committee of the Privy Council, 1813

Appeal from New South Wales

Unreported[1]

Source: PRO PC2/194 Council Register 26 Oct. 1812 to 15 Jul. 1813, 8 January 1813

New South Wales

Committee Report

for dismissing the

Appeal of Henry

Kable and another

against John Harris

and another for Non

Prosecution

Your Royal Highness having been pleased by Your Order in Council of the 9th of December last in the Name and on the behalf of His Majesty to refer unto this Committee the humble Petition of John Harris Esquire and Charles Mc.Laren, Setting forth that in the Year 1811 the Petitioners as the Payees of a certain set of Bills of Exchange drawn by Simeon Lord Esquire for the sum of £3,200 Sterling upon Messrs. Plummer, Bartiam and Plummer of London for the Sum of £3200 (which Bills had been protested) commencing their Action against Henry Kable and James Underwood in the Court of Civil Jurisdiction held at Sydney in the Colony of New South Wales to recover the payment of the said set of Bills from the said Henry Kable and James Underwood in the Court of Civil Jurisdiction held at Sydney in the Colony of New South Wales to recover the payment of the said set of Bills from the said Henry Kable and James Underwood as guarantees of the payment thereof pursuant to a certain agreement bearing date on the 28th. day of May 1807, to which Action the said Henry Kable and James Underwood pleaded the general Issue and the said Cause came on to be Tried before the Judge Advocate of the said Court on the 30th. day of July 1811 when a Verdict was found for the Petitioners Damages £3974..2..2 and Costs £2..4..4; That on the 6th. day of August 1811 the said Henry Kable and James Underwood gave Notice of Appeal to the Governor of the said Colony against the Decision of such Court, and an Appeal having been brought by the said Henry Kable and James Underwood before His Excellency the Captain General and Governor in Chief of the said Colony on the 21st. day of the same Month of August, His said Excellency on the 24th. of the same Month of August was pleased to confirm the said Verdict, from which Order the said Henry Kable and James Underwood prayed and were allowed leave to appeal to His Majesty in Council but the said Henry Kable and James Underwood have not prosecuted their said Appeal although one Year and upwards hath elapsed since the said Order was made and the said Appeal granted, and therefore the Petitioners pray that the said Appeal may be dismissed with Costs for Non Prosecution; The Lords of the Committee in obedience to Your Royal Highness’s said Order of Reference, this Day took the said Petition into Consideration, and were attended by Counsel for the Petitioners thereupon, and it appearing to be upwards of Fifteen Months and [sic] the said Order was made and that the Appellants hath not during all that time presented their Petition of Appeal therefrom, nor taken any Steps towards prosecuting the same; Their Lordships do agree humbly to report as their Opinion to Your Royal Highness that the said Appeal of the said Henry Kable and James Underwood from the said Order of the Governors [sic] of the Colony of New South Wales of the 24th. day of August 1811 ought to be dismissed for Non Prosecution, with £30 Sterling Costs.

[p. 234, 10 February 1813]

New South Wales

Order approving

Committee Report

for dismissing

Appeal of Kable

and another

against Harris

and another

for Non Prosecution

            Whereas there was this Day read at the Board a Report from the Right Honourable The Lords of the Committee of Council for hearing Appeals from the Plantations &c. dated the 8th. of last Month in the Words following vizt.

Memdum – Here the Committee Report for dismissing Appeal of Henry Kable and another against John Harris and another from New South Wales, for Non Prosecution was inserted at length as Vide entered Page    .– 

            His Royal Highness The Prince Regent having taken the said Report into Consideration was pleased in the Name and on the behalf of His Majesty, and by and with the advice of His Majesty’s Privy Council to approve thereof and to order as it is hereby Ordered that the said Appeal of the said Henry Kable and James Underwood from the said Order of the Governor of the Colony of New South Wales of the 24th. day of August 1811, be and the same is hereby dismissed this Board for Non Prosecution, with Thirty Pounds Sterling Costs.  Whereof the Governor, Lieutenant Governor or Commander in Chief of the Colony of New South Wales for the Time being, and all other Persons whom it may concern are to take Notice and govern themselves accordingly. –

Notes

[1] The Appeal Book 1781-1819 (held in the office of the Judicial Committee of the Privy Council) records the following:

[1812]

Do. [that is, New South Wales]

Henry Kable & anr. v John Harris & anr.

[Received] 24 Nov. 1812

[Referred to the appeals committee] 8 Jan. 1813.

Do. [that is, Leigh & Mason]

Do. [that is, Petn. to dismiss]