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

Lord v. Dixon [1828] NSWSupC 37

reception of English law, equity procedure, Master in Chancery, injunction, attorney, lien on costs, costs, lien, imprisonment for debt, bail, civil action

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 28 May 1828

Source: Dowling, Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461

[p. 162]

[28 May 1828  In the absence of matter in chancery, it was referred to one of the Judges to expunge scandalous and impertinent matter in an answer to a bill in Equity]

Lord v Dixon

In Equity

Stephen moved to refer the Defendants answer to the Chief Clerk to expunge certain matters therein which were alleged to be scandalous and impertinent; and also to it for insufficiency.

After conferring with  Stephen J and myself[1 ] -

Forbes CJ said that at present there was no rule of practice in the Supreme Court authority such a reference to the Chief Clerk. The general rules of the Equity Courts of England were in force here so far as they were applicable to the state of the Colony and its Juridical establishment, not being otherwise provided for in the present state of the Colony there was no such officer in the Supreme Court as a master in chancery to whom questions of this nature could be referred, In [sic] England there were trustees in Chancery who were [p. 163] in fact Judicial Officers competent to regulate the pleadings in Equity.

There there [sic] was not that complex machinery in the Judicial establishment, and there was in fact no person but one of the Judges to whom such a matter could properly be referred   the better course therefore was that the application should be made before one of the Judges of the Supreme Court at Chambers for him to determine upon the regularity of the pleadings objected to   ordered accordingly.

[p. 171]

[An attorney has only a lien upon a judgment for the costs of the action in which he was retained and none thereon for his general balance or bill of costs in other suits.]

 

Hearing, July 5 1828

Source: Dowling, Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461

Lord v Dixon

Rowe moved for leave to take out execution gainst [sic] the Defendant, upon a judgment recovered against him by the Plaintiff for the sum of 1405,9,2£ in order that he might leave his lien upon the proceeds due his Costs not only in this action, but for his general balance.  The parties were now in Equity.  The case was in the hands of other attornies, and he contended that there having been a change of Attornies in the cause without a rule for that purpose being first had and obtained he ought not to be deprived of his costs.

Wentworth and Stephen contra being heard, & having suggested that they were willing to satisfy Mr Rowe for his costs in this action, they were ready to proceed in the trial of the action which had hitherto been stayed by an injunction.

Per Curiam.  there does not appear to have been any change of Attorney.  Mr Rowe can only be entitled to a lien upon the judgment for the costs of the action [p. 172] in which he was retained and he came to have a lien upon it for his general bill of costs.  There is no ground therefore for the present motion, the Plaintiff having undertaken to satisfy Mr Rowe for any costs to which he may be entitled in this action.

Rule Refused.[2 ]

 

Hearing, 11 October 1828

Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462

[p. 98]

[Where there is a reasonable and probable cause without malice, for holding a defendant to special bail although the Plaintiff recovers less than the sum for which he has arrested the party the Defendant is not entitled to the costs under 43. G. 3. C. 46]

 

Saturday October 11 1828

Lord v Dickson

The Plaintiff had held the Defendant to special Bail for the sum of 1,350£ part of which debt he sought to recover as agent for another person and recovered by verdict only the sum of 1,054 the assessors disallowing that part of his claim which he sought to recover as agent[.]

Stephen now moved that the Defendants should have his costs under the 43. G. 3. C. 46. on the ground that he had been maliciously held to bail[3 ] without any reasonable or probable cause[.]

Wentworth for Plaintiff.

Rule refused

Notes

[1 ] This refers to Dowling J., on whose notes this case report is based.

[2 ] On attorneys' costs, see also Levy v. Porter, 1828; and Powells and Wells v. Cormack, 1828.

This vigorous litigation continued on 26 September 1828 before Forbes C.J., Stephen and Dowling JJ.  The court decided that where two parties had each recovered a verdict against the other, one judgment should be set off against the other.  (Source: Dowling, Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461, p. 340.) 

[3 ] This means that the defendant was arrested in civil process, and released on bail.

Published by the Division of Law, Macquarie University