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

Nash v. Purcell (1828) Sel Cas (Dowling) 523; [1828] NSWSupC 54

judicial notice, legislation, Governors' Orders, validity, replevin , impounded animals, distress damage feasant, new trial, repugnance to English law, judicial review of legislation, Legislative Council, legislative powers of, legislative power, delegation of, Georges River, Liverpool

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 9 July 1828

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

[pp 211-213]

[The Court may take Judicial notice of a public local ordenance as a valid and binding law upon the inhabitants of N.S.W. without preliminary proof being given that the steps required

to be taken in pursuance of the power of making laws and ordinances given by the statute 4 G 4. C. 96. ss. 24. and 29. to the legislative council of the Colony had been adopted   The local

Ordinance 4 G 4 1 (No 20) 1st Nov. 1825 may be taken in connection with the Government general order 15 April 1820 (relating to cattle poundage) as a sufficient  declaration of the purpose for which poundage is imposed in compliance with 4 G 4. C. 96. s.27.  By virtue of the Government General order 15. April 1820 a poundage of one shilling may be taken upon each and every horse, so long as the poundage does not exceed 20/s for each]

[p. 211]

Wednesday 9 July 1828

Nash v Purcell[1 ]

Present Forbes CJ. Stephen J and Dowling J


Replevin for seizing and detaining two horses of plaintiff.  Defendant confesses the Caption but avoids legal liability by averring that the horses were delivered to him as pound keeper having been taken in trespass damage feasant on the lands of one Keith; and gave notice under the rule of Court, that he was pound keeper and detained said horses for legal fees &c

The following facts were proved before Forbes CJ:- on 3rd January [p. 212] last two horses of plaintiff were taken in trespass damage feasant on a farm in the possession of a Mr Keith at Georges River, and were taken and delivered over into the custody of the Defendant as pound keeper.  The horses were kept and fed by Defendant, and he incurred expences in advertizing them to find the owner.  In consequence of these advertizements the plaintiff appeared as the owner and claimed the cattle and tendered £2. 0. 6. for the expense of the poundage and feeding of the horses.  The sum so tendered was refused by the Defendant who claimed £4. 5. 6. including the expense of advertizing the distress in the Sydney Gazette.  In order to prove the Defendants appointment as pound keeper for the District of Georges River, the Sydney Gazette of the 6 September 1826 notifying his appointment, was put in and read and it was admitted that appointments notified in the Sydney Gazette are considered as proved [p. 213] to be acts of the Colonial Government, in like manner as notices in the London Gazette.  To prove the legality of this rate of poundage charged by the defendant, John T. Campbell Esqr Secretary to Governor Macquarie proved that the Governor issued an order dated 15 April 1820 establishing rates of poundage demandable by poundkeepers for detaining Cattle distrained for trespassing and that such order was printed out and issued for general information in the Sydney Gazette 29. April 1820   the same witness proved as of his own knowledge that the rates therein specified have been the usual rate for poundage and keeping cattle distrained for trespass damage feasant.  Another witness proved the fact that the Defendant acted as keeper, of the pound of Georges River, and was in the habit of receiving and impounding cattle trespassing.  The horses in question he knew to have been pounded in the usual manner   a son of the Defendant proved the fact of the impounding two [p. 214] horses afterwards claimed by the plaintiff that they were kept by the Defendant, about a month, and were fed and attended by his Father   Sydney Gazettes were given in evidence, the first dated 9th January 1828 containing advertizements with the usual form that the horses in question had been impounded, for having been found trespassing on Keiths farm and a clerk of the Editor of the Gazette proved the receipts of the expense incurred by the Defendant for the advertizements.  It farther appeared that the horses had been in the pound 16 days before they were demanded by the Plaintiff and before tender made.

For the Plaintiff it was contended 1st that the order issued by Governor Macquarie establishing the rate of poundage chargeable by poundkeepers was of no validity, in as much as the preliminary forms prescribed by the 4. Geo 4. c.96 [p. 215] necessary to give effect to an act of the Colonial Council had not been proved, namely, the convening of the Council, the Certificate of the CJ and the passing of the act or ordinance, 2nd, that the ordinance itself does not state the purpose for which the rates are imposed; and 3rd That assuming the ordinance to have any validity in this Court, the ordinance itself limits the demand of the poundkeeper to 20/s for each head of cattle, and consequently the charge for advertisements is illegal because the ordinance points out the proper mode for ratifying the distress to the owner.  In reply it was contended that it was a question of fact for the possessors to determine the sufficiency of the plaintiff tender, and the reasonableness of the Defendants demand.  It was further urged that the horses having been impounded for a trespass the poundkeeper could not let them go without a replevin or without the [p. 216] consent of the party. and that upon their being released the poundkeeper is entitled to his legal fees Badkin v Powell. 478. per Lord Mansfield.  The production did not necessarily limit the aggregate amount of poundage for each head of cattle to 20s.  The poundkeeper was surely entitled to all the expenses to which he had been put in keeping detaining and finding out the owner of the horses   Forbes CJ in his summing up rules first That the publication of the local ordinance in the Sydney Gazette was prima facie proof that all due forms had been complied with to give validity to it as a local law conformably to the N.S.W. act.  2.  That the local law, a proclamation published in the Gazette in 1828 substantially set out the purposes for which the rate of poundage was imposed viz, as a remuneration to poundkeepers for the care, and expense of keeping the distress; and third that it [p. 217] was for the assessors to determine whether the tender for the expenses of the distress was sufficient, his Honor telling them that reasonable charges for advertisements before tender made were allowable although not within the terms of the proclamation.  The assessors found their verdict for the Defendant they being of opinion that the sum due for keeping and maintaining the distress was more than the sum tendered.  The case was argued by Wentworth for the Plaintiff and Keith for defendant on a former day, and now the Judgment of the Court was delivered by Dowling J.

This was an action of Replevin for two horses the property of the Plaintiff alleged to have been taken by the Defendant on the 15 January 1828 in a certain place called the district of Liverpool.  The defendant pleaded non cepit[2 ] and gave notice under the 24 Rule of Court,[3 ]that he would give in evidence on the trial of the cause [p. 218] that the cattle in the declaration mentioned, were delivered to him as keeper of the pound in the district of Liverpool, and that he would insist on a return of the said cattle so in the said declaration mentioned.  At the trial before his honor the Chief justice on the 9th June last, the Defendant after admitting the caption of the horses, proved the following facts in evidence: On the 13th January last, two horses the property of the Plaintiff were taken trespassing on a farm in the possession of a gentleman named Keith at Georges River, and delivered into the custody of the Defendant as poundkeeper of the district of Liverpool.  The horses were kept and fed by the defendant and he caused them to be advertized in the Sydney Gazette in order that the owner might come forward and claim them.  In consequence of the advertisements the Plaintiff appeared as the owner, claimed the cattle and tendered the sum of £2 and sixpense for the expense of pounding and feeding [p. 219] the animals, they having been then in pound for 16 days.  The sum so tendered was refused by the Defendant who claimed £4. 5s. 6d including the expense of advertising the distress in Sydney Gazette, in order to prove the legality of the Defendants demand for poundage he relied upon the public local ordinance 4 Geo 4. (No 20). 1st Nov 1825. and dated 15 April 1829 for regulating the rates to be levied by poundkeepers, and by virtue thereof claimed 20/s for the poundage of each horse beside the expense of advertising the distress.  On the part of the Plaintiff it was objected 1st.  That the local ordinance 4 Geo 4 (No20) could not be enforced by the Court without proof being first adduced that the same was passed by the local legislature in the manner required by sections 24 & 29 of the New South Wales Act 4 Geo 4. C. 96[.]  2nd That the said local ordinance without being coupled with the Government General order of the 15 April 1820 did not contain a sufficient [p. 220] declaration of the purpose for which the rate of poundage was imposed, in compliance with the 27th Section of the 4 Geo 4. C. 96. and 3 that regard being had to the particular wording of the said general Government order itself assuming that it could be taken in connexion with the local ordinance the rate of poundage claimed for these two horses together could not exceed the sum of twenty shillings in the whole[.]

The learned Chief Justice overruled these objections, and left the assessors to determine whether the tender for the expences of the distress was sufficient, His Honor telling them, that reasonable charges for advertizing the distress before the tender made was allowable, although not expressly provided for in the Government general order of the 15 April 1820.  The Assessors found their verdict for the Defendant, they being of opinion that the sum due for keeping, maintaining and advertizing the distress was more than the sum tendered.

A motion having been [p. 221] made yesterday on behalf of the Plaintiff for a new trial, the several objections taken before the Chief Justice, were renewed and fully argued by W.Wentworth for the Plaintiff and by Messers Keith and Norton for the Defendant.  The Court desired time to review the arguments urged on one side, and on the other, and having fully and maturely considered the case, we are of opinion that none of the objections ought to prevail.

We shall advert to the several objections in the order in which they are presented to the consideration of the Court   In support of the first objection it was urged that the presiding Judge at the trial could not take judicial notice of the local ordinance 4.G. 4 (No 20) as a valid and binding law upon the inhabitants of this settlement until preliminary proof was given that the steps required to be taken in pursuance of the power of making laws and ordinances given by the statute 4 G 4. C 96 ss24, and 29. to the legislative council of the Colony had been adopted as that the law before it was passed had been [p. 222] laid before the Council at a meeting convened for that purpose, by a written summons under the hand of the Governor and left at the usual place of abode of the members of the Council respectively; and that before the law was passed a copy of it had been submitted to the Chief Justice of the Supreme Court for his certificate, that it was not repugnant to the laws of England.  It was further urged that the power of legislation given to the Government and council was a mere naked authority, and it was likened to a power given to a mere private individual, which must be proved strictly to have been pursued before the act done shall be valid and effectual Hawkins v Kemp 3 East 440 DoePeach 2 M&S 576 cited.

We are however of opinion that there is no analogy between the authority given to the legislative Council of this Colony and the power delegated to a trustee or other private individual to do an act which shall be binding between subject and subject.  We do not impugn the doctrine laid down by Lord Ellenborough in Hawkins v Kemp 3 East. 440 that [p. 223] all the circumstances required by the creators of a power however unessential and otherwise unimportant they be must be observed and cannot be satisfied but by a strict and literal performance; but that doctrine does not apply to the power conferred by parliament upon the Governor and Council of this Colony to make laws and ordinances for these settlements.  It is a well known principle of law even in the case of a power or authority delegated to ministerial officers, as for instance to a magistrate "that were the legislature has given a power, the Court will presume the magistrate to have followed that power 1 stra (46. [sic] and that everything shall be intended in favour of the regularity of his proceedings until the contrary appear.  A multo fortiori this principle is applicable to the high functionaries who are authorized to make laws and ordinances for this Colony.

The 24th section of the 4 Geo 4. C. 96. recite "that it may be necessary to make laws and ordinances for the welfare and good government of the Colony of N.S.W. and the dependencies thereof, the occasions of [p. 224] which cannot before seen, nor without much delay and inconvenience be provided for without entrusting that authority for a certain time and under proper restrictions to persons resident there", and then it proceeds to point out the restrictions under which the power of legislation is to be exercised.  We must presume and intend that the powers thus given have been pursued in passing the law in question until the contrary appears.  Here is a public ordinance valid on the face of it, and it would be a strange anomaly if we, sitting as Judges, and bound to administer the law as we find it, were to assume that the constituted legislature of the Colony, had ventured to ordain laws, without strictly conforming to the power and authority conferred upon it by the wisdom of parliament   were we to give countenance to such a doctrine, it would be productive of the greatest inconvenience and mischief, and would be in violation of the known principles upon which the conduct of such high [p. 225] public functions is to be judged.  The like objection might be taken to the proceedings even of the high Court of Parliament itself and of every tribunal in the Mother Country.  Every Judgment of  Court of record might be impeached on the same ground, and it would become necessary to shew that the presiding Judge had pursued the powers of his commission and had acted conformably to the law after the most solemn consideration of the matter in judgment and the most rigid application of his functions.  Without discussing this point further, we are clearly of opinion that as this local ordinance is prima facie a valid and binding law, we must so treat it until the contrary is shown and consequently that the presiding Judge was bound to take Judicial notice of it without farther proofs of its authenticity.

In support of the second objection reliance was placed upon the provision contained in the 29 Section of the 4 Geo 4. C. 96 which restrains the Governor and Council from imposing any tax or duties, except only such taxes or duties as it may be [p. 226] necessary to levy for local purposes, and declares that the purposes for which every such tax or duty may be imposed and to or towards which the amount thereof is to be appropriated and applied shall be distinctly and particularly stated in the body of every law or ordinance imposing every such tax or duty.  It was insisted that the local ordinance in question did not comply with this last mentioned provision of the statute and that the objection could not be helped by having recourse to the Government General order of the 15 April 1820 in as much as that order having no legal basis to support it, could not be taken in connexion with the local ordinance.  This involves the question whether we can consider the general Government order of the 15 April 1820 as legalized quoad the present case, by operation of the local ordinance 6 Geo 4. No 20.  We are of opinion that we must so consider it.  The local ordinance is entitled "An act to continue, until further provision shall be made, certain duties, tolls, rates, fees and other sums of money imposed by the Governors of [p. 227] New South Wales, and for other purposes, and after reciting the Governors indemnity act 59. G 3. C. 114. and the 4. Geo 4. C. 96 (the one for staying proceedings against the Governor and other persons concerned in imposing and levying duties, and authorising the Governor, to direct the levy of any rate or duty, which might have been imposed or usually collected or levied in the Colony, previously to the passing of that act; and the other making the 59 Geo 3. perpetual) and after further reciting that it was expedient "that similar provisions should be made to continue for a limited time, all tolls, rates, fares, fees and other sums of money imposed and levied by virtue of any proclamation or order of any Governor of New South Wales before the date of the proclamation of His Excellency the Governor notifying the appointment of a legislative Council in New South Wales", proceeds to enact, That all and every tolls rates, fares, fees and other sums of money which may have been collected, levied, or received or become due, under and by virtue of any proclamation or order of any Governor [p. 228] of New South Wales before the 12th August 1824. shall be and be taken as valid and lawful as if the same had been imposed by the authority of the legislature; and that it shall be lawful hereafter, and until further provision shall be made to demand, collect levy, and receive such and the like tolls, rates fares, fees and, other sums of money as aforesaid in the same manner as heretofore used," &c and it further provides that the duties &c shall be levied and collected "as if the same had been particularly specified and enforced  by this ordinance"

Now attending to the enactment contained in this ordinance, it was quite obvious that it must be taken to comprehend and include Governor Macquaries order of the 15 April 1820 as effectually as if it had been expressly and in terms named as one of the orders legalized thereby, Indeed it is impossible to put any other construction upon the local act.  If so, then must not this Government General order, be deemed and taken to be (for the purpose of this cause) part and [p. 229] parcel of the local act itself?  We apprehend it must be so deemed and taken; and if so, then what follows in the local ordinance, shews that the 27th section of the New South Wales act 4 Geo 4 C. 96 has been complied with, for it expressly declares the purpose for which the duty or tax imposes and collected under and by virtue of such Government orders as had been so legalized, should be so appropriated.  It provides "that all sums of money collected &c under and by virtue of this act (other than the fees of such public officers as shall not be entitled to a stipulate salary in lieu of such fees) shall be paid &c and shall be applied in maintaining the highways, ferries, pounds, markets and other public establishments of New South Wales and Van Diemans Land".  Attending therefore to this part of the enactment, it appears to us that the Government order of the 15 April 1820 must be taken in connexion with the local ordinance of the 6 Geo 4. No20 and that such ordinance does in fact comply with [p. 230] the requisites of the 4. Geo. 4. C. 96. s.27.

In delivering this opinion however, the Court wishes to guard itself against being understood as giving any sanction in this Court, to such proclamations or general orders; as upon consideration shall be found to contravene the laws of England, or as shall not appear to have been sanctioned by the local legislature.  We only recognize the order in question in so far as it applies to the collection of poundage dues, and we are not to be understood as sanctioning its operation for any other purpose.  For these reasons it appears to us that the second objection cannot be supported.

In support of the third and last objection, it was contended that assuming the general ordered issued by governor Macquarie to be of any validity, still it cannot be construed to sanction a greater rate of poundage than 20 shillings for both horses together and that 20 shillings cannot be demanded for each.  This argument is founded upon the following paragraph [p. 231] of the general order viz. "But in no instances whatever shall any charge for poundage be demanded or payable above the sum of one pound Sterling",  Now it is quite clear that this paragraph must be taken in connexion with what precedes it, and if so then it appears to us that the construction attempted to be put upon it cannot be supported.  We find in the scale of poundage fees previous set out, that the order authorizes the poundkeeper to demand and receive "For horsesper head" that is for each and every head "per day one shilling"  Nothing can be plainer from this than that one shilling per day is to be paid for each and every horse brought to the pound.  It follows then, upon all reasonable intendment and construction.  That the paragraph which follows must be understood to prohibit the taking of any more than 20/shillings for each and every horse brought to the pound.  If this were not the true construction to be put upon the paragraph taken in connexion with what proceeds it would  follow that if 50, or 100 [p. 232] horses found trespassing in a squadron were taken to the pound, the poundkeeper would be entitled to no more than 20/shillings for the whole number.

This point appears to us to be too plain for argument.

We are therefore of opinion that none of the objections taken can avail the plaintiff, and consequently the application for a new trial in this case must be refused.

Stephen J expressed his concurrence in my view of the case.

Forbes J after saying that he concurred in the view I had taken of the case proceeded to deliver his Judgment as follows;-

After the opinion I expressed at the trial of this cause, and the very able and particular review of the whole case by my Brother Dowling, and the objections raised by Counsel in support of the motion for a new trial, I feel it unnecessary [p. 233] to go further at present, than avail myself of the opportunity of giving my opinion upon the important question, how far the laws of the Governor in Council of this Colony are to be regarded as public acts, and of the same general force of acts of Parliament   Mr Wentworth in support of his motion for a new trial contends that the proof of the act of the local legislature was insufficient, that the Judge at the trial could not take notice of such act judicially upon its bare production, like an act of parliament but the fact of its having passed the Council and have been proved at the trial and been certified by the Chief Justice should have appeared upon the body of the act, and have been proved at the trial.  The force of this reasoning must depend upon the nature of an act of the legislature of this colony, and how far the act or ordinance under consideration is to be considered as a public act proving itself by its production in the printed form in which all acts of the Colonial [p. 234] legislature are printed binding upon all classes of Her majesty's Subjects within this Colony, and of necessity entering into the general laws of the Colony and forming a part of that professional science which is presumed to reside in the learning of the Judges to examine this question correctly we must look into the first principles of legislation and carry them with us to the construction of the act of parliament, by which the legislature of this Colony is created.

The King by the Constitution of our country, is the fountain of legislation as well as of Justice.  In the exercise of this highest function of the Crown, His Majesty is advised by the Councils of Parliament.  By analogy to the constitution of these great councils of the realm, His Majesty may convene, or authorize, his Governors to convene assemblies of the people, in his Colonial dominions with power to make laws for the [p. 235] government of his foreign subjects.  This power if [sic] the King is now so fully recognized and settled that it may be assumed as one of the clearest prerogatives of the Crown, It is said by Mr Justice Blaxstone 1 com, p.108. in treating upon provincial establishments, that their constitutions depend upon the commissions issued by the Crown to their Governors under which provincial assemblies are constituted with the power of making local ordinances not repugnant to the laws of England.  Mr Stokes, who was a lawer by profession in his work p.155. on the constitution of of [sic] the North American Colonies, has preserved the form of one of the general commissions to the Governors as follows:- You (The Governor) with the consent of our said council and assembly, shall have full power and authority, to make laws, statutes, and ordinances, for the public peace, welfare and good government of our said province," and by an opinion of Sir Robert Raymond Attorney [p. 236] General in 1713, afterwards Lord Chief Justice of England published in Chalmers collection 2 Vol page 1 it appears that that great lawyer, considered "An Act of the Assembly of Barbadoes, was of the same effect there, as an act of parliament in England.  I may venture to add my own experience which has been extensive and law [sic] it down as generally received principle of law throughout the colonies that ordinances of the Colonial legislature, are of equal force in the Colonies as acts of parliament are in England and that the Judges are bound judicially to notice such ordinances, in like manner as they are noticed in England.

Having arrived at this step let us look at the act of Parliament 4 G  4. C. 96. s. 24. and see how far it has invested the Governor and Council of this Colony, with the general power of legislation analogous to those of the elder Colonies (see the section)  It is clear that within the [p. 237] limitations laid down, the power of legislating is general, and extends to the highest description of laws.  They may create new felonies, they may levy taxes upon the whole Colony.  Their acts are not like by laws, extending only to a particular body or place, they are coextensive with the limits of the Colony, and embrace all persons within its territorial boundaries   Laws passed with such powers are surely public laws they are as much the laws of this Colony as acts of Parliament.  How then do Judges determine whether Statute is law or not? they determine it of their own knowledge by the production of the statute, it is a branch of that learning and discretion which is presumed to reside in them and qualifies them for the important office entrusted to them.  It is said by Lord Holt, that they must judicially notice the adjournment and prorogation of parliament.It were unnecessary to cite authorities in support of this doctrine.  It is to be found in the earliest writers of the law the text may be found in Cok. Litt. 98. 6. in the Princes' case 8 Rep.18. and in Comyn [p. 238] Digest Tit Parliament R 5.  The distinction between a public and a private act, is equally clear.  The authorities which illustrate it, are well collected in Bacon AO. Tit Statute 7   the ordinance before us, falls within the description of a public act or ordinances, and we are of opinion that it proves itself in the terms it is professed to have passed and that it carries prima facie proof, that all the forms and provisoes required by the act of parliament were complied with, before it was published as a law.

With respect to the other points in this case, my Brother Dowling has gone so fully into, and illustrated them so clearly, that I do not think it necessary to add anything to what he has said, except to say that I fully concur in opinion with him, and consequently the application for a new trial must be refused.



[1 ] The Australian, 11 July 1828, described this as "One of the most elaborate judgments ever pronounced in the Supreme Court."  It praised the "sound reasons" of Dowling J., and "the calm and beautiful view taken by His Honor, the Chief Justice, of the high functions of all colonial legislatures, here, as well as in other parts of the King's dominions, [which] formed such a treat, such as is seldom to be met in the routine business of the Supreme Court."

In June 1828, Forbes C.J. told Governor Darling that he could not certify a new bill on the impounding of cattle as being consistent with English law: Chief Justice's Letter Book , Archives Office of New South Wales, 4/6651, pp 162-163.

[2 ] Query whether this is a reference to non cepit modo et forma: he did not take in manner and form.

[3 ] Rule 24 of the 1825-26 Rules of the Supreme Court allowed the defendant to plead the general issue as a general denial of the plaintiff's cause of action, with notice of particular matters to be relied on: source, J.M. Bennett and A.C. Castles, A Source Book of Australian Legal History: Source Materials from the Eighteenth to the Twentieth Centuries, Law Book Co., Sydney, 1979, p. 63.

Published by the Division of Law, Macquarie University