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

Smith v Elder (1831) NSW Sel Cas (Dowling) 222; [1831] NSWSupC 69

supervision of inferior courts - Court of Requests - prohibition

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 22 October 1831

Source: Dowling, Select Cases, Archives Office of N.S.W., 2/3466

[p. 116] Prohibition lies to the Commissioner of the Court of Requests to restrain him from proceedings in a cause for rent where future right may be bound thereby between the parties.


Source: Dowling, Proceedings of the Supreme Court, Vol. 61, Archives Office of New South Wales, 2/3244

[p. 148]

22d. Oct. 1831.

Wentworth moved for a writ of Prohibition to restrain the Commissioner of the Court of Requests from proceeding in this cause now depending in his court, for the sum of £8.10. being the arrears of a weekly rent charge covenanted to be paid by the Deft to the Plf.  The Plf being possessed of  Crown lease of premises [p. 149] situate in Parramatta executed an agreement inter partes, with the Deft to sell him the same, in consideration of the latter paying the Plf & his wife a weekly sum of 10/- during their joint & several lives, together with the use of a cottage on the land and the pasture of a cow.  Subsequent to this bargain & sale another person took adverse possession of the premises, so sold by the Plf to the Deft under authority from Plf, & the Deft refused ant longer to pay the weekly annuity.  The suit was therefore instituted for the recovery of the arrears of the annuity & the question was whether the jurisdiction of the Court of requests was not ousted by reason that ``future rights," might be bound by his adjudication.

Norton contra contended that this was not a case in which future rights could be bound, & came within the jurisdiction of the Court below to determine rents & other liabilities. [p. 150] of that nature.

Forbes C J. I should be extremely unwilling to abridge or narrow the jurisdiction of the Court of Requests which is most undoubtedly a very useful court for the cheap & speedy administration of justice; but I cannot say that this is not a case in which future rights may not be bound.  The consideration of the alleged claim of rent, is the assignment or sale of a premises held by the Plf under a crown lease.  Now it may be that the rights of the Crown may be affected, for it may be that the sale of the lease may be without the consent of the Crown.

Stephen J. was of same opinion.

Dowling J. This being a specialty under seal, containing special covenants, I think that is one reason why this case would be taken out of the summary jurisdiction of the Inferior Court.  The payment of 10/- [p. 151] weekly & every week to the husband & wife jointly & severally during their respective natural lives, looks very like a covenant running with the land, which may involve future rights.  Beside the consideration in the part of the Plf, by letting another person into adverse possession, may fail & then surely the Deft could not be compelled absolutely to go on and pay the annuity absolutely: - A Court of Equity would relieve in such case, & this shews again the reason of holding that this is not a case within the jurisdiction of the Superior Courts which has cognizance only of debts certain & rents certain where the adjudication cannot affect future rights.  I therefore think the Prohibition must go.

Prohibition granted.

Forbes C.J. and Dowling J., 31 October 1831

Source: Sydney Herald, 7 November 1831

Mr. Norton showed cause against a rule obtained on behalf of Mr. James Elder, of Parramatta, for a writ of prohibition, to prevent the Commissioner of the Court of Requests from proceeding to execution in a case pending in that Court, Smith v. Elder; and also to prevent him from taking cognizance of the agreement on which such judgment was founded, on the ground that he had no jurisdiction in such matters, the judgment being pronounced for money, accruing on a covenant under seal.  Mr. Wentworth opposed the jurisdiction of the Commissioner, on the ground that the future rights of parties were involved, consequently out of the pale of the jurisdiction of the Court of Requests. - Granted.

Published by the Division of Law, Macquarie University