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

Mitchell v. Walford [1821] NSWKR 5; [1821] NSWSupC 5

debt - deed of assignment - Norfolk Island

Supreme Court
Field J., 13 February 1821
Source: Sydney Gazette, 24 March 1821[1]

This was an action of debt; and the first count declared upon a deed of assignment, dated at Norfolk Island, 5th February 1807, by which the defendant and several other creditors of the plaintiff assigned all their real and personal property on the Island to the plaintiff, and subjected both their property and their person to execution, under the process of the Court of Civil Jurisdiction there, as a security for the payment of the several sums at the several days set against their respective names and seals. To this court the defendant demurred generally; and the demurrer first came on for the argument.
Mr. Wylde, for the defendant, contended that this deed contained no confidence[?] upon which the plaintiff could declare in an action of debt; that was a mere assignment of property in Norfolk Island, and surrender of person to the imprisonment of the Civil Court there: and that it was incumbent upon the plaintiff in declaring upon this deed to aver, that the debt had not been satisfied by the defendant's property, or execution of [?] his person, in Norfolk Island.
Mr. Moore, for the plaintiff, argued that the deed acknowledged debt, and made the defendant always and even more liable upon it, without the averments contended for.
Mr. Justice Field was of opinion, that the deed of assignment did not warrant the present declaration, and that the demurrer was good. The acknowledgement of debt was only in recital, and not in covenant to pay it, and the recital was for the purpose of inducing the assignment of property and subjection of person (if such subjection could amount to a warrant of attorney) in the island. It was a mere deed of assignment in accord and satisfaction: and so far from operating as a perpetual covenant in debt, the deed says, that "when payment is duly made, rendered and satisfied accordingly; (that is to say, by sale of property, or imprisonment of person in Norfolk Island), then this security and the effect thereof is to decease and be void: and such of the said subscribing parties, respectively, as shall have duly performed and complied with the tenor thereof, from henceforth to be absolutely discharged and released from the same." After this, was it possible to say, that it was unnecessary for the plaintiff to aver that the defendant had not paid his debt accordingly, or had not duly performed the tenor of the security, when it depended upon that averment, whether the deed was void or not, or whether the defendant was released from it or not?
Upon the demurrer to the first count, the Court therefore gave judgement for the defendant.
To the other counts of the declaration, which were not founded upon the deed, the defendant had pleaded nil debet and the Statute of Limitations; and upon these issues, the Court went into evidence of the debt, when it was proved to their satisfaction, that only £16.10s.10d. pf[??] £10.8s.2d. had been discharged upon the removal from Norfolk Island to this Colony, in the year 1814, that there was no Jurisdiction to try this action in these Territories from the year 1815 till the year 1817, and that the action was brought at the last Circuit in 1818. A verdict was, therefore, found for the plaintiff upon the other counts for £84 9s. 9d.


[1] This case is unusual for its reference to civil actions concerning Norfolk Island. During the first settlement on that island, from 1788 onwards, it was more a miniature replica of the mainland colony than the place of secondary convict punishment it became after 1824. On this case, see also Supreme Court of Civil Judicature, Judgment Rolls, 1817-1824, State Records N.S.W., 9/2229 (no. 379). See B. Kercher, An Unruly Child: a History of Law in Australia, Allen and Unwin, Sydney, 1995, 28, 34-35.

Published by the Division of Law, Macquarie University