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

Marsden v. Howe [1818] NSWKR 2; [1818] NSWSupC 2

Governor's Court, jurisdiction - courts, financial jurisdiction

Supreme Court
Field J., 1818
Source: Sydney Gazette , 28 February 1818
First Term, 1818:-- Marsden, Clerk v Howe

            The Court, after hearing Mr Garling for the Defendant, discharged the Rule to stay proceedings, which had been obtained upon, the ground that the verdict being under 50L, the jurisdiction of the Court ceased. On this occasion the Learned Judge (Field) delivered the following opinion, upon the construction of our Charter of Justice:[1] 

            "To come at the meaning of the Letters Patent, which give the Governor's Court jurisdiction under and the Supreme Court above 50L we must look at the language of each empowering part, the Courts being thus far connected that where the jurisdiction of one ends that of the other begins. The Charter first says that the Governor's Court shall have jurisdiction of all trespasses, and all manner of other personal pleas where the sum in dispute shall not exceed 50L. It does not say the sum adjudged to be due, or even the sum to be recovered, but where the plaintiff disputes that claims, demands, [?] his damages, whether rightfully or wrongfully, is for the Court to decide. It is therefore plain, from the words of that part of the Charter which constitutes the Governor's Court, that (at any rate) that Court has no jurisdiction where more than 50L is, at the outset of the case, disputed. But then it is said that the Supreme Court has no jurisdiction wherever less than 50L is found at the trial to be due that the words which define the jurisdiction of the Court are not sum in dispute but cause of action that it is the verdict which discovers what was the cause of action; and that this Court cannot give a verdict under 50L. Now I deny that it is the verdict, which discovers what was the cause of action. In the sense in which these words are [?] in the Letters Patent; and will show that, for that reason as well as from the spirit of the whole Charter, the Supreme Court must have the power of giving a verdict under although the Governor's Court cannot give a verdict above 50L. The words of the Charter, which has the Supreme Court's jurisdiction, are these; "except where the cause of action or suit shall not exceed 50L". The phrases sum in dispute in the former clause, and cause of action in the latter, are thus used to convey the same meaning, and are convertible as far as may be required to come at meaning. I am therefore of opinion, that whenever the Supreme Court shall think the plaintiff had bona fide cause (for any thing that appeared to him - that is, where he was bona fide ignorant of the good defence, which at the trial reduced his cause of action) to sue the defendant for above 50L in other words, wherever he might fairly think that i.e. had a right to dispute a sum of above £50, and therefore could not, by the words of the Charter, due in the Governor's Court; - or, in the language of pleading where ha had "any reasonable or probable cause of   action" (which it is necessary for a defendant to negative before he can bring an action for a malicious arrest or prosecution), then the Supreme Court has jurisdiction, even though the result of its judgment shall reduce the debt or damages below £50. In the case of an action for unliquidated damages, the Court will doubtless allow the plaintiff a more liberal estimation of the damages sustained by a wrong, which he who feels is too apt naturally to magnify, and the examination of which perhaps only the defendant can feel, and the Court, when they know it, after hearing his defence.

            "The construction of this Charter can be made by little other light than that which shines within its' own clear breast; for in England there are no other jurisdictions which are limited as to the value of their suits than the County Courts and the Courts of Conscience, the analogy between which and the Governor's Court here does not hold good; for both our Courts have jurisdiction of trespasses and all manner of other personal pleas, which the Courts of Conscience have not; and, even if an action be brought in a superior Court in England, for a debt, of which the Court of Conscience has   jurisdiction, all that can be done is to takeaway from the plaintiff, or give to the defendant, costs, under special Acts of Parliament, which Acts of Parliament do not annihilate the superior Court's jurisdiction, [2] as is contended for here. And see what a monstrous demand is made upon the Supreme Court! It is to try a cause in order to find out whether it has jurisdiction or not; and then if it cannot find damages above £50, the suit (pray who is to pay the plaintiff his costs of thus discovering in what Court he ought to have sued, of which in many cases he may have been innocently and invincibly ignorant, as in the case of the value of a horse or other chattel, the worth of which is in a great measure matter of opinion?) the suit is to go down to the Governor's Court, and to be tried over again, with all the plaintiff's case exposed and his witnesses open to be tampered with by the defendant, he knowing exactly how far they will swear -

No reckoning made but sent to his account

With all his imperfections on his head.

Surely this could never be the intention of Letters Patent, granted for the public benefit, by a King who is supposed to have all the principles of law written in his heart - one of the first of those maxims that the law abhors circuitry of action, and delights in terminating strife; [3] and one of the second being that all ordinances for the public good shall be construed liberally.[4] 

"But I am content to construe the words in question of this Charter of Justice literally and insulatedly and even if it be not permitted me to pray, in aid of the construction of the whole Charter, the language of the Governor's Court, wherewith to explain that of the Supreme Court, I think the words "cause of action" enough for the purpose of this opinion; and I deny that the verdict finds what was the cause - it rather find but is the effect of the action, in the popular sense which the words are used in the Charter: And even in point of Law, it does not necessarily find or touch the cause of action, as I will prove bye and bye. A plaintiff may have very good cause of action for more than 50L till the defendant's case is known; and then the Court decide what shall be the effect or result. One story is good (to use a vulgar proverb) till another is told. One party had still good cause or reasons to bring his action; but the other party had good cause to defend as, in many cases can appear only by trial. If it were the verdict which finds what is the cause of action, in the sense in which the words are used to the Charter, The Supreme Court would have no power of giving a verdict for the defendant, which the Charter expressly empowers it to do: for what does such a verdict find, but that according in the constructions contended for (and it often has the legal effect of finding, though not always, as will be shewn hereafter), the plaintiff had no cause of action at all? Then, if he had no cause of action, his cause of action was under 50L and be ought to have sued in the Governor's Court; where, to be sure, a verdict could have been given for the defendant, as well as in the Supreme Court. But the answer to this , that the plaintiff disputed above 50L and the Governor's Court cannot entertain the cause where the sum in dispute is above 50L; Non vestrum tautas componere lites. Then, if the Governor's Court cannot, the Supreme Court must even though it should terminate the dispute by awarding damages under 50L; the power to do which must be intended to be given to it by a Charter which has expressly clothed it with the greater power of giving a verdict for the defendant, for enme majus contict in seainus : otherwise the Public would be without any other than a circuitous, expensive, and exposing remedy in such cases; an inconvenience which the Charter could never intend, and which the law will never permit; for its eternal maxims are interpretatio [?] est ut res majis valeat quam pereat-ut - utr evitem inconveniens et absurdum - ut ne judicium sit illusotium.

"The principle which construes the words Cause of action as they must be construed for the purpose of giving effect to this Charter, is recognized in England, where a defendant is never allowed to suggest the Court of Conscience Acts, when the verdict is reduced within their jurisdiction, by set-off or tender; and it may be illustrated by the defence of the Statute of Limitations, which (it is expressly held) does not extinguish the plaintiff's cause of action, but only suspends or takes away the remedy. [5] So it is where a debt is barred by infancy or bankruptcy, or where the promise is void for want of writing, by the Stature of Frauds. The language of pleading in the case of bankruptcy expressly admits the plaintiff's cause of action, but says he "ought not to maintain it, because after the making of the promise, if (gif, give, grant) any such were made, the defendant because a bankrupt, and that the said supposed cause of action (here we have the very words of our Patents) if any such there (what? were? no) be (be now) acceded to the plaintiff before the defendant became a bankrupt." These are the exact words of a plea in bar of bankruptcy; which (says Mr Justice Denison) is not a plea to the action but only a personal discharge: 1 Wilson , 90. And yet the defendant would be entitled to a verdict upon it, without disputing the plaintiff's cause of action which proves that it is not the verdict which is the test of the cause of action: And what is the language of the Record in case of a verdict for the defendant? Does it say that the plaintiff has no cause of action? No: that he shall take nothing by his writ. Hence it is, I argue, that a plaintiff may have cause of action, and a defendant at the same time, cause of defence. If the verdict is to be   the test of the cause of action, then the jurisdiction of the Supreme Court must cease in every case, as soon as a defendant reduces a plaintiff's demand below 50L by   act of tender, for then it may equally be said his cause of action does not exceed £50; which is more than the defendant's Solicitor cared to contend for and yet they who insist that it is the verdict of the Court which finds what is the cause of action, must necessarily be either driven this length, of deprived of the power of making any exception for the cases of set-off or tender. But the language of the Courts in England, in deciding that none of the Court-of-Conscience Acts extends to cases where the sum recovered is reduced under the limited sum by means of a set-off or tender, is also decisive that the words cause of action must be construed demand , and not verdict ; for the word in those Acts is debt which is nearer to meaning what the Court finds due, than the words cause of action ; and yet that word debt was construed demand   in all the following, which are the only cases on the subject; viz 2 Strange 1191, and 1 Wilson 19; (see also 2 Wilson 68), 3 Wilson 48; 1 Bos and Pul 223; (Of this case, it is not the principle but the application thereof that is shaken by 8 East, 28 and 14 Esat, 301); Dong 448; 8 East 317. In the first of these cases, which was that of a demand reduced within the Court of Conscience jurisdiction by set-off, the very reason given by the Court for refusing to suffer the Act of Parliament to be suggested was, that the verdict was not the test of the cause of action. The verdict was under 40s; but said the Court, "the plaintiff has in effect recovered more than 40s because a debt which he must otherwise paid is now satisfied. Here are two causes (that is of action) determined, both of them of greater value than is within the inferior jurisdiction." The distinction which the Court thus takes between the cause of action and the verdict, is the very hinge upon which the case of set-off and lender turn; and therefore they who contend that the verdict finds the cause of action cannot be allowed to avail themselves of the reason for which they would admit the verdict   of   the Supreme Court to be reduced under £50 by set-off or lender, in conformity with the principle of inferior Courts in England, since that very reason expressly drives them from their contention, that it is the verdict which finds the cause of action. This appears to me to be demonstrative; and I have not the least doubt that it is the principle which must be applied to the jurisdiction here, in all actions for liquidated damages. Of actions for unliquidated damages, the Courts of Conscience have no cognizance, as the Governor's Court here has; but if they had, the same principle which has decided that that shall be considered a debt above 5L under the statute, which, at the time of action brought, is a rightful demand , for more than that sum would doubtless decide that, in cases of unliquidated damages, that sum should be considered plaintiff's rightful demand, at which (without knowing the defence) be bona fide estimates his damages.

"See in how many cases a plaintiff may therefore bona fide mistake the Court in which he is to bring his action, if the Supreme Court shall not be permitted to give a verdict under 50L. In all actions of trespass and personal injury, he will most naturally over-estimate his damages, and find himself saddled with costs and exposed in Court, because he valued his injury at perhaps 60L and the Court think it worth only 50L in all actions to recover money due upon contracts, when it bona fide appears upon the face of a plaintiff's account that more than 50L is due to him, he cannot do otherwise than sue in the Supreme Court and yet it shall be allowed to a defendant to turn him out of Court, by merely pleading ( non constat   that he will prove) a set-off or tender sufficient to bring the sum within 50L; for as soon as the defendant pleads either of these defences, the plaintiff goes to trial at his peril; since, if he do, and the defendant make his defence good, there is an end of the cause - cadit quastio - the suit drops, as it is contended; and the plaintiff must by all costs. But the cases I have cited satisfactorily prove that the Supreme Court must be allowed, in cases of money accounts, to give verdicts under £50; and if it may balance such accounts even below the amount of the sum, the original demand of which gives it jurisdiction, why may it not, upon hearing a defence, which pares down a demand of damages for a trespass to the person or property, weight injuries.

"It would be very impolitic, and hard, even upon defendant's to force a Court to strain a point of damages in order to maintain its jurisdiction; and the enabling all persons to sue in the Supreme Court for unliquidated damages by laying them above 50L would work no impolicy or hardship upon defendants since whenever the Bench should see that such action is wantonly brought in the more expensive Court, they could at the trial punish the plaintiff by giving him even less damages, than is probable the Court would have awarded or by giving him no costs, under the equity of its judgment; for the Charter contemplates the power of the Supreme Court to "award costs to the plaintiff" or not; or they could even before trial stay proceedings, wherever, although the damages were laid above, it plainly appeared upon motion that the real demand was below 50L. 4 T.R.495; 5 T.R.64; 2 Black.Rep.754; or the defendant may plead to the jurisdiction, through not in bar; for our authority is a King's Patent, not an Act of Parliament; and, without a provision that where the defendant should avail himself of the plea in bar, the plaintiff might afterwards sue in the Governor's Court, the plaintiff would lose his debt altogether, where the defendant should prevail in his plea in bar, because the judgement of the Supreme Court would be a bar to the action in the Governor's Court. 2 H.B. 352.


[1] The reference is to the Second Charter of Justice, as to which, see J.M. Bennett and Alex C. Castles, A Source Book of Australian Legal History , Law Book Co., Sydney, 1979 at 31. We thank our volunteer, Ron Hulme, for his careful transcription of this difficult technical judgment.

[2] Footnote in original: I had three exceptions to this position, viz the Westminster, the Tower-Hamlet, and the Isle of Ely Acts, which it has been held may therefore be pleaded in bar, or may nonsuit upon the general issue. 3 T.R. 432; 2 H.B. 350; 1 East, 352. See the conclusion of this opinion for the reasons why our Letters Patent cannot be pleaded in bar; but perhaps upon the authority of these cases, the Supreme Court would be found to nonsuit, where the plaintiff goes for under 50L.

[3] Footnote in original: Circuitus est evitandus; et boni Judicis est lites dirimere, ne lis ex lite oriture; - nam interest Republicae sit finis litium.                                                                                                                                  Lord Coke.

"Vir bonus est quis?Qui consulta patrum, qui leges juraque servat, Quo multae magaieque secantur judice lites. Nil agit * * * * * * litem quod lite resolvit.                                                                                                 Horace

[4] Footnote in original: Statuta pro publico commodo late interpretantur,                                                                         Jenk. Cent.21

Literae Patentes Regis non erant vacuae, if by reasonable construction they may be made good. 1 Buls 6.

[5] Footnote in original: 4 Bac.Ab.484; 2 Vern 141; 1 Salk. 154; 2 P.W. 374; 3 P.W.79; 2 Stra. 746; 5 Bur. 2628; Cowp. 548; 15 Ves 479.

Published by the Division of Law, Macquarie University