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

Ex parte McPherson [1833] NSWSupC 10

Court of Requests, jurisdiction - mandamus - supervision of inferior courts - land law, title - quit rents, whether rent or duty

Supreme Court of New South Wales

Dowling and Burton JJ, 1 March 1833

Source: Sydney Herald, 4 March 1833[1 ]

Ex-parte McPherson. - In this case a motion was made last term by the Solicitor General, for a rule nisi, calling upon the Commissioner of the Court of Requests to show cause why a Mandamus should not be issued, directed to him, ordering him to entertain certain cases in his capacity of Commissioner of the Court of Requests, brought by Mr. McPherson on behalf of the crown to recover rents for land leased to private individuals by the crown, and which he had declined to entertain, on the ground that the Act did not empower him so to do.  The Solicitor General now moved for the rule to be made absolute, and the Court were of opinion, that looking at the facts of the case, and giving the Act of Parliament a liberal interpretation, and in mercy to the suitor, that the mandamus should go, that the Commissioner should entertain this case.


Dowling and Burton JJ, 1 March 1833

Source: Dowling, Proceedings of the Supreme Court, Vol. 81, State Records of New South Wales, 2/3264

[p. 38] Last Term Court granted a rule to shew cause why a Mandamus should not be directed to R Therry Esq the Commissioner of the Court of Requests, commanding him to hear and determine a suit for one years rent of certain Crown land let for a year certain to Francis Stephen Esq.  The Commissioner had dismissed the suit for want of jurisdiction but recommended this application to be made to the Court.

It appeared from the affidavits, that the Crown had by a Government local order, notified of its intention of letting waste lands in the Colony at the rate of 2/6.d for every Hundred acres, and that the tenants of such lands should quit & deliver up the same upon receiving one months [p. 39] notice.  Mr Stephen had rented land on this terms, and had received notice of determining his tenantcy [sic] agreeably to the public order, & quitted possession accordingly but leaving the rent in arrear, for which the Collector of Internal revenue sued him in the Court of Requests.

Norton now shewed cause, and contended that this though in terms rent, yet being in the nature of a duty payable to the Crown, was not recoverable in the Court of Requests.  Future rights might also be found by the determination of the Court below, which would clearly take the case out of the jurisdiction of the Commissioners.[2 ]

Plunkett  S.G contra contended that this being an annual rent, where no future rights can be bound, it was clearly within the jurisdiction of the Requests.  This is not a duty; it is a rent.  The King may sue in any Court he pleases.

[p. 40] Dowling J. (adverting to the terms of the Statute) I am of opinion that a Mandamus ought to go.  It being here sworn that the tenantcy [sic] is actually determined, the rent then due, passes into an indebitatus & no future rights as between these parties can be bound by the decision of the Commissioner.  No question of title can arise.  Whether the tenancy was valid or not, cannot arise.  No future rights can be bound.

Burton J.  I am of the same opinion.

Rule Absolute.

F. Stephen, after hearing this decision of the Court claimed to be heard, although present during the argument without desiring to be heard before, & we thought he could not now be heard; for his argument would be in the nature of a reply upon [p. 41] our decision.



[1 ] In 1831, Chief Justice Forbes forwarded a petition for the suspension of quit rents, which claimed that those who held land in the inland, where incomes were low, could not afford it: Historical Records of Australia, Series 1, Vol. 16, 341-345, and see p. 598.

[2 ] Marginal note in manuscript: ``9 Geo. 4 c. 83 s. 18".

Published by the Division of Law, Macquarie University