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

Noble v Cotton [1831] NSWSupC 45

arrest of ship - customs duties - non suit - civil procedure - new trial - laches

Supreme Court of New South Wales

Dowling J., 6 July 1831

Source: Sydney Gazette, 9 July 1831[1 ]


(Before Mr. Justice Dowling and Special Juries.)

Noble v. Cotton and others.

This was an action of trespass brought by the plaintiff, Hugh Innes Noble, against the defendants, Michael Cullen Cotton, Comptroller of Customs; Thomas Oliver, Searcher of Customs; and Cornelius Prout, Under Sheriff, for an alleged illegal seizure of the schooner Darling, at Sydney.

Previous to the jury being sworn,

Mr. Therry, of Counsel for the defendants, stated, that the plaintiff in this case, or his attorney, did not appear; and, although a notice had been served on the defendants' attorney, stating that the plaintiff was not ready to go to trial, accompanied by a request that the case might be allowed to stand over, he (Mr. T.) could not consent to any further delay.  The action had been pending for eighteen months, and this very day was the second anniversary of those proceedings in which it had originated.

Mr. Justice Dowling said, if the case were suffered to be put at the bottom of the paper, the defendants would be entitled to the costs of the day.

Mr. Therry could not suffer the case to stand over any longer, and must claim a non-suit if the plaintiff did not appear.

Mr. Justice Dowling. - I am not in a condition to non-suit at present.  The jury are not sworn in the cause.

The following gentlemen were then sworn on the jury: - George Bunn (Foreman), John Hosking, John McLaren, John Scougall, Henry Donnison, James Chisholm, Archibald Mossman, William Lawson, Thomas McVitie, Prosper D'Mestre, Joseph Barrow Montefiore, and James King, Esqrs.

The learned Judge then ordered the plaintiff to be called, in the usual manner, and no answer being given, His Honor directed a non-suit to be entered.

Mr. Therry requested to know if His Honor would certify, under the Act of Council, that the case was a proper one to be tried by a Special Jury, in order to entitle the defendant to the costs of the Jury.

The learned Judge was of opinion that he could not grant such a certificate.  He knew nothing whatever of the case, except what appeared upon the record.  The learned Counsel, however, might moot the point, on another occasion, if he thought proper; but, as at present advised, His Honor did not see how he could certify.

Forbes C.J., Stephen and Dowling JJ, 15 September 1831

Source: Sydney Herald, 19 September 1831

In Re Noble v. Cotton. - Mr. Rowe moved that the case be restored to paper, the plaintiff having been non-suited last term, through the absence of the leading Counsel on public duty.  Mr. Therry opposed the motion, it being one that he felt assured the Court would not grant; a non-suit had been obtained, that ought to have been first set aside, and a motion made for a new trial; he objected to the case ever being put on paper again, the defendant being now out of the Colony; it had been a long and expensive suit to the revenue, and he contended that on the merits of the case, it could not again be restored.

Mr. Foster in reply, argued that according to the authority of decided cases, they were entitled to have the case restored to paper reasonable cause having been shown.

The Court refused the motion.  No affidavit having been filed of merits, so as to make a case sufficiently strong, to authorise the Court to set aside the proceedings.[2 ]


[1 ] See also Sydney Herald, 18 July 1831; Australian, 5 July 1831; and see Noble v. Cotton, 1830.

[2 ] The Australian, 16 September 1831 said that the rule was refused "as the plaintiff appeared to have lost through his own laches".

Published by the Division of Law, Macquarie University