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

Eagar qui tam v. Manigault [1821] NSWKR 8; [1821] NSWSupC 8

felony attaint - qui tam - civil procedure, non pros - alien, right to trade

Supreme Court
Field J., Second Term, 1821
Source: Sydney Gazette, 26 May 1821[1]

Mr. Garling for the defendant had obtained a rule to shew cause why judgement of non pros, should not be signed in this cause, for not prosecuting agreeably to the Rules of the Court; but, upon consideration, the Court refused to hear the plaintiff, because they thought they could not entertain such an action as these, under the powers of the Charter; and so the Court had decided in a similar action of Eagar qui tam v. De Mestre in the Third Term, 1820. The actions were brought under the 2nd Section of the Navigation Act, 12 Charles 2 c. 18, which enacts that no alien shall exercise the trade or occupation of a merchant or factor in the plantations, upon pain of the forfeiture of all his goods and chattels, one third to the King, one third to the Governor, and the other third to the informer.
Mr. Justice Field said that, before the Court entertain so highly penal an action as this, and applied the statute in favour of tradesmen, who were themselves only the creatures of remission of sentence, they ought to be fully satisfied that they had the power to try a qui tam action, public penal action, two thirds of the fruits of which are to go to the King and the Governor, under a Charter, the object of which is to make "sufficient provision for the recovery of debts and determining of private causes between party and party in New South Wales." The Court doubted this in the case of Eagar v De Mestre: and it was for that reason they granted the defendant time to procure from Ireland a copy of the record of the plaintiff's conviction of felony; and not with a view of applying to this Colony, the strict law of England upon the right of convicts to sue, as had been misrepresented in one of a string of fake and absurd resolutions in the Gazette, at the head of which Mr. Justice Field saw the Plaintiff's name. The Judge said that if he had been in this part of the Territory at the time those resolutions had appeared, he would have punished their author for a contempt of Court in making this misrepresentation. The fact was that, except in such an oppressive case as this, and in which the powers of the charter were doubtful, no convict had ever been prevented from suing in the Courts of the Colony, nor ever should be while Mr. Justice Field had the honour of sitting there; and it appeared by the returns of the Court to the Commission of Enquiry, that one third of the Plaintiffs in the Supreme Court had been convicts.
The Court refused to make any further order in this cause.


[1] See also Supreme Court of Civil Judicature, Process Papers, 1817-1824, State Records N.S.W., 9/2255 (no. 547).

Published by the Division of Law, Macquarie University