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

Anonymous (No 1) (1830) NSW Sel Cas (Dowling) 114; [1830] NSWSupC 5

convict rights, felony attaint, costs, legal

 

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 1 March 1830[1 ]

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

 

[p. 278]

[A Plaintiff stated to be convict attaint, cannot be called upon to give security for Costs before he is allowed to give security for Costs.]

Anonimous[sic]

Poole moved for a Rule calling on the Plaintiff to shew cause why he should not give security for Costs, on a suggestion that he being a Convict attaint if he failed in his action the Defendant could never recover his costs against him.

S Stephen opposed the rule on the ground first that this would be trying the attainder of the Plaintiff on affidavit  second that if the Plaintiff was in fact a Convict attaint the Defendant might plead it to the action; and third that if such an application could be made in this Colony it would have the effect of shutting the doors of justice against all Class of persons, who it had been decided that if they traded as free persons, they might sue and be sued.

Per Curiam  We think we ought not to grant this application it would establish a precedent which might lead to many inconvenient consequences.

Rule Refused

 

Notes

[1 ] From its position in the Select Cases, it is likely that this case was heard between 26 February and 4 March 1830.  The most likely date was 1 March, which was the first day of term, when all three judges sat in banco to hear motions of this kind.

 

Published by the Division of Law, Macquarie University