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

Ex parte Levey [1838] NSWSupC 69

Court of Requests - supervision of inferior courts - music - theatre - damages, once and for all rule

Supreme Court of New South Wales

Dowling C.J., Burton and Willis JJ, 12 July 1838

Source: Sydney Herald, 13 July, 1838

In Banco.  Before the three Judges.

Ex-parte S. E. Levey. - In this case a rule nisi had been obtained, calling upon George Sippe to shew cause why a writ of prohibition should not be issued directed to the Commissioner of the Court of Requests, restraining him from proceeding further in the case of Sippe v Levey.  Mr. Windeyer now appeared to shew cause.  From the affidavit of Mr Josephson, and of Mr. Sippe in reply, it appeared that about the 27th of December last, Mrs Levey and Mr. Sippe entered into an agreement by which, in consideration of the weekly sum of £3, Mr. Sippe agreed to perform as principle violincello player four nights per week.  In the month of March, Mrs. Levey let the Theatre to Mr. Wyatt, and it was closed, and Mr. Sippe's services were not required.  On the 16th April, Mr. Sippe took out a summons in the Court of Request for £9, three weeks' salary, for which the Commissioner gave him a judgment.  On the 22d May, Mr. Sippe took out a second summons, and on the 8th June obtained a second verdict for £9, which was the judgment complained of, as the applicant contended that the first judgment was conclusive, and no evidence was given that Mr. Sippe had performed the services which he had agreed to.  After the Theatre was closed, Mr. Sippe tendered his services, and after the first judgment, received a not desiring him to attend to the Theatre and play his violincello four night a week, which he did for several weeks, until Mr. Wyatt refused to allow him to enter the Theatre.  Mr. Windeyer objected to the prohibition of the ground that the agreement was for the sum of £3, payable weekly, and that the sum of £3 must be looked upon as an instalment due, and could be recovered every week.  The case of the subscribers to the Patriotic Association, the learned gentleman contended was exactly in point.  He also urged that unless the want of jurisdiction was urged on the Commissioner in order that he might decide upon it, the Court would not entertain the objection.  The learned gentleman quoted a great number of cases and argued at considerable length on these points.

Mr. a'Becket replied, contending that the first sum for which judgment was given was not for services performed, but damages for the breach of the agreement, and that, consequently, the judgment was binding and conclusive.  As to the objection not having been urged before the Commissioner to have made, if he had appeared to support his own judgment, but made no difference as regarded the parties.

The Chief Justice said he was of opinion the prohibition should not be issued.  The point raised by Mr Windeyer, that it did not appear that an objection to the jurisdiction of the Commissioner was not made in the Court below was fatal, for before the decision of the Judge of an inferior Court can be impeached, it must be made manifest that the attention of the Judge had been called to the particular point.  The second action in the Court of Requests was not for damages, but for services actually performed, for Mr Sippe attended the Theatre and played the violincello for several evenings, according to the requisition of Mrs Levey.  Then arose the question whether this was a divisable contract, and could Mr Sippe sue for the money as it became due or must he wait until the whole of the time was completed.  By the terms of the contract Mrs Levey undertook to pay the sum of £3 weekly, and therefore at the end of every week a separate and distinct debt was due, for which Mr Sippe could sue in the Court of Requests; but if he had waited until more than three weeks salary was due, he must have gone to the Supreme Court.  The decision of the Court respecting the subscribers to the Patriotic Association's Bond, he held to be exactly in point.

Both the other Judges agreed with His Honor - Rule dismissed.

Published by the Division of Law, Macquarie University