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

Gilroy v Mannix [1833] NSWSupC 22

Condon v. Martin

felony attaint - ticket of leave - retrospective legislation - costs, security for

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 23 March 1833

Source: Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266[1 ]

[p. 14] In these cases the plf's were stated to be convict felons whose sentences were unexpired, but were holders of tickets of leave.  The Defts had pleaded respectively "convict attaint", & applications were made calling upon them severally to give security for costs, in consequence of the passing of the late Act of Parliament restraining transported persons from acquiring property or maintaining any action or suit at law.

It was contended on the part of the plf's that the recent act of Parliament was not retrospective, & could only be constrained to apply to persons transported under & by virtue of that act.  This could not operate as an expost facto law.

The two first named actions [p. 15] were in assumpsit, & the last was for assault & battery.

Contra - The act covers every body who has been transported, or who may be transported.

Forbes C.J.  We have no hesitation in saying that the argument that the Act of Parliament is not retrospective is not well founded.  These are not applications to stay proceedings, but to require security for costs.  It is a general rule that if by circumstances a party to a suit is placed in such a situation as not to be amenable to the process of the Court, the Court will call upon him to give security for costs.  This is the rule where a party resides abroad, & in some cases where the party is a pauper.  Looking to the history of the transportation laws there is nothing new in the doctrine of incapacity from suing where the party is a felon in [p. 16] execution of his sentence.  In deciding, however, that these parties under the circumstances disclosed must give security for costs, we distinctly guard ourselves from expressing any opinion upon the general question whether these plf's are actually incapacitated by law from suing.  That is a question to be determined by the Country upon a trial of the causes on the merits.  We simply determined that there is enough disclosed in the affidavits to require the parties to enter into security for costs.  This decision is justified by Harvey v Jacob. 1 B & A. 159.

Rules Absolute.

Rowe, Stephen & Keith.



[1 ] See also Attainted Jurors Opinion, 1833; Tunnicliff v. Barrett, 1833.

Published by the Division of Law, Macquarie University