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

Kable v. Lord [1812] NSWKR 7; [1812] NSWSupC 7

appeals

Court of Appeal
Governor Macquarie, 1812-1814
Source: Proceedings of the High Court of Appeals, 22 May 1812, State Records New South Wales, 4/1724[1]

[22 May 1812]

[71] Appeal 2nd - Henry Kable - appellant

Simeon Lord - respondent

The decree of his Excellency the Governor as Supreme Judge confirming the verdict of the civil court but ordering execution to be stayed until the 1st of November next, read in the words following

By his Excellency etc., etc., etc.

Whereas the Patent for establishing etc., etc., etc., an appeal having brought before me on the eighteenth day of this instant May from the Court of Civil Jurisdiction holden at Sydney in the months of July and October, one thousand eight hundred and eleven

between Henry Kable - appellant

Simeon Lord - respondent

and having duly and impartially considered the documents exhibited before me as well on the part of the appellant as of the respondent, I do confirm the verdict of the Court of Civil Jurisdiction given [72] and pronounced in this cause on the thirty first day of October one thousand eight hundred and eleven, but execution nevertheless to be stayed until the first day of November now next issuing and respondent not to be allowed to take out the same without special application to the said Court of Civil Jurisdiction upon previous reasonable notice being given to the appellant.

Given the twenty second day of May, in the Year of our Lord one thousand eight hundred and twelve.

"signed' L. Macquarie

[3 March 1813]

[88] To William Gore esq., Provost Marshal of the said territory

Whereas in the Court of Civil Jurisdiction in and for the territory aforesaid in a certain cause there pending in which Simeon Lord of Sydney merchant was plaintif and Henry Kable of Windsor merchant was defendant, the said Simeon Lord lately, to wit on the thirty first day of October in the year of our Lord one thousand eight hundred and eleven, by decree and judgment of the same court recovered against the said Henry Kable the sum of twelve thousand, four hundred and seventy three pounds, four shillings and three pence of lawful money of Great Britain for his damages which he the said Simeon Lord had sustained as well on occasion of the not performing certain promises and undertakings then lately made by the said Henry Kable to the said Simeon Lord as for his costs and charges by him about his suit in that behalf expended. And whereas the said Henry Kable, feeling himself aggrieved by the said decree of the said Court of Civil Jurisdiction, did thereupon appeal in due form of law from the said decree to me Lachlan Macquarie Captain General and Governor in Chief in and over the said territory and its dependencies, which appeal hath been duly and fully heard before me. And whereas I the said Lachlan Macquarie Captain General and Governor as aforesaid having first maturely considered and fully understood the several documents and allegations whatsoever exhibited and propounded as well on the behalf of the party appellant as on the behalf of the party respondent, did by my decree duly published in the [89] presence of the said parties on the twenty second day of May last past entirely and fully affirm the said decree of the said Court of Civil Jurisdiction before pronounced in the said cause which said decree of me the said Lachlan Macquarie Captain General and Governor as aforesaid now remains before me unappealed from and in full force and virtue, you the said Provost Marshal are therefore hereby commanded that of the goods and chattels of the said Henry Kable in this territory you cause to be made the said sum of twelve thousand, four hundred and seventy three pounds, four shillings and three pence, and have that money here at Sydney on Thursday the first day of April now next insuing to render to the said Simeon Lord for his costs and damages as aforesaid. And for so doing this shall be your sufficient warrant.

Given under my hand and seal of office at Government House Sydney, this third day of March in the year of our Lord one thousand eight hundred and thirteen.

signed L. Macquarie.

His Excellency the Governor has deemed it expedient to extend the time for making the return in the above warrant of execution from the first day of April therein mentioned unto the first day of May now next ensuing.

           Sydney, third March 1813

                                                                                               John Thomas Campbell

                                                                                               Secretary

[September 1814]

[140] Read - A memorial from Simeon Lord esq. praying for execution against the lands of Henry Kable for the unsatisfied balance due on a judgment recovered in this court pursuant to the late Act of Parliament by which lands were made liable for debts due on judgment recovered.

[153] In reply to the memorial presented by Simeon Lord esq. on the first day of the sitting of this court praying for execution against the lands of Henry Kable for the unsatisfied balance due on the judgment recovered, his Excellency directs said memorial to be dismissed, observing that as the judgment so recovered was antecedent to the period of the 24th of June last when the Act of Parliament made in this respect was to operate in the territory, it can have no retrospective effect on judgments recovered previous to that period.

Note

[1] From the barrister Ellis Bent sitting as Judge Advocate in the Court of Civil Jurisdiction, there was an appeal to the legally unqualified Governor Macquarie. Sitting in the Court of Appeals, Macquarie 's practice was not to overturn Bent on points of law, but he did occasionally extend the time for payment as in this case.

Simeon Lord attempted to obtain execution against Kable's land under a new Act of Parliament (Debtors (Liability) Act 1813, 54 Geo. 3, c. 15). Ellis Bent had recommended this reform of the colony's law. There was no such simple judgment creditor's remedy against land in England until 1838. See B. Kercher, Debt Seduction and Other Disasters: the Birth of Civil Law in Convict N.S.W., Federation Press, Annandale, 1996, 198-201, and see Eagar v. Clarkson, 1813; Kable and Underwood v. Crossley, 1814; Jones v. Knopwood, 1821.

The appellant in this case was the Henry Cable who was the plaintiff in Cable v. Sinclair, 1788.

Published by the Division of Law, Macquarie University