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

Hudson v Fitzgerald [1811] NSWKR 1; [1811] NSWSupC 1

money had and received - promissory note, note of hand - appeals

Court of Civil Jurisdiction
Bent J.A., 22 January 1811
Source: Court of Civil Jurisdiction Proceedings, 1788-1814, State Records N.S.W, 5/1104 (case no. 165)[1]

[169] Jesse Hudson, plaintiff, against Richard Fitzgerald, defendant

Writ for the sum of £300 sterling, for so much money had and received by the said Richard for the use of the said issue.

Defendant appears and pleads the general issue.

[170] The plaintiff puts in a memorial containing a statement of his case, which is received and read in court.

The defendant admits that he sometime ago commenced an action against Hudson the plaintiff to receive the sum of £210.0.0 upon a note of hand stated by him to have been given to by Hudson as the consideration of a house sold by Fitzgerald to him the said Jesse Hudson.

It is further admitted that this action was tried by a Court of Civil Jurisdiction at Sydney on or about the 10th day of July 1809, that a verdict was then given by the members of the said court, (viz. Richard Atkins esq., Judge Advocate, Mr Broughton esq. and Charles Throsby esq., who was not present at the trial) for the said Richard Fitzgerald. That £210 was awarded to the said Richard as his damages. That the defendant thereupon appealed to [ struck out: the Lieutenant Governor] Lieutenant Colonel Paterson, who acted as Lieutenant Governor, and Governor, during the suspension of Governor Bligh. That the verdict of the civil court was affirmed on that appeal. That the mutiny of the civil court at which such action was tried was by a Precept signed by the Lieutenant Colonel Paterson, Lieutenant Colonel Foveaux at this time Chief Military Officer in the colony, Governor Bligh being at that time on arrest. That after the appeal execution issued against the said Jesse Hudson, under which his effects were sold, and that the sum of £93.5.0 came into the hands of [171] the said Richard Fitzgerald. It was further argued that the note of hand upon which that action was brought was after the verdict given up.

The grounds upon which the present plaintiff proceeds, were

First, that the verdict of the civil court of the 10th July 1809 was not properly given, against the weight of evidence.

Secondly, that the verdict of the civil court of the 10th of July was given by a jurisdiction declared to be incompetent, and therefore that all acts done under such jurisdiction were illegal.

In support of this ground, he relied upon the following clause in a proclamation issued by his Excellency the Governor bearing date of Sydney 4th January 1810, which was as follows:

In further obedience to his Majesty's commands his Excellency also declares all trials and investigations had since the arrest and removal of William Bligh esq., to have been had before an incompetent jurisdiction and to be illegal: And he hereby publickly declared them to be and the same are of none effect whatsoever in law [172] and equity.

As to the first ground, the court consider that it is not competent to them to review or examine into the proceedings of any former Court of Civil Jurisdiction, which have been adopted, and acted upon and which are in themselves complete, that such is the province of a Court of Appeal.

As to the second ground, the court considers that the clause in his Excellency's proclamation above mentioned extended only to said acts and decrees of the court alluded to as incomplete and had never been carried into effect, and that to extend it further would be to put innocent parties into a worse situation than they were in before they had secured those verdicts which by the construction sought to be put upon such clause would now be set aside.

Upon these grounds the court give judgment for the defendant.


[1] When Governor Macquarie arrived in the colony to restore legality after the coup against Governor Bligh, he issued a proclamation declaring void all the decisions of the Court of Civil Jurisdiction during the period of unlawful government (1808 to 1809). On its face, that would have required the re-hearing of all cases decided in the previous two years. As this case shows however, Bent J.A. decided that any judicial decisions made during the rebel period and fully acted on were to be left to stand. Only incomplete cases needed re-hearing.

See B. Kercher, Debt Seduction and Other Disasters: the Birth of Civil Law in Convict N.S.W., Federation Press, Annandale, 1996, 39-40; and see Hook v. Paterson and others, 1810.

Published by the Division of Law, Macquarie University