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

Pedley v. Green [1839] NSWSupC 10

board and lodging - English debt, enforcement of -oaths

Supreme Court of New South Wales

Dowling C.J., Willis and Burton JJ, 15-16 February 1839

Source: Australian, 19 February 1839

Pedley v. Green. -- In this case the plaintiff sought to recover maintenance for the defendant's wife, who had seperated [sic] from her husband.  When the declaration was filed, the defendant applied for a commission (de bene esse) to examine witnesses in England, and the commission was ordered.  The defendant paid several sums of money into his Attorney's (Mr J. W. Thurlow) hands, amounting altogether to £39, for the purpose of forwarding the commission.  Mr Thurlow repeatedly told the defendant that the commission was taken out, and the matter was going on in the regular course, upon which statement the defendant relied.  It, however, appeared that the commission had never been taken out, and Mr Windeyer now moved that the cause be set down for trial in the present term, (a common jury had been granted in the cause, before the commission was applied for) on the ground that the application for the commission to take evidence in England, had been made solely for the purpose of delay.

The Court decided that the defendant was bound by the acts of his attorney, and as the attorney had failed to perform his duty, the application for a rule to shew cause must be granted.

SATURDAY. --  Before their Honors in Banco.

In the case of Pedley v. Green, in which a rule to shew cause was granted on Saturday, Mr Windeyer moved that the rule be made absolute.

In ordering the rule to be made absolute, the Court said that the defendant must be bound by the acts of his atttorney, [sic] but if sufficient ground of complaint existed, the defendant could apply to the Court for redress.

 

Dowling C.J., 12 March 1839

Source: Sydney Herald, 13 March 1839[1] 

 

Tuesday. -- Before the Chief Justice and a Common Jury.

Pedley v. Green. -- This was action brought to recover the sum of £185 8s. 7d. for board and lodging, furnished to the defendant's wife and children, and also for goods sold and delivered.

The plaintiff resides in London, and the defendant in George-street.  The only evidence in the case was the declaration of the plaintiff made before the Right Honorable Lord Mayor of London, that the debt was due, and several letters in which Green spoke of being indebted to Pedley, and regretted that he had been obliged to use his money.

The Chief Justice said, that by the Act of Parliament 54 Geo. III. passed to enable persons in London to recover debts due to them, from persons in this Colony, it is enacted that a party may go before the Lord Mayor of London and make an affidavit, which is as effective in this Colony as if the party were in the witness box before the jury, and subject to a cross-examination.  By a recent Act of Parliament passed for the abolition of many voluntary oaths, the former Act was altered so far as to enable a party to certify solemnly before the Lord Mayor, which is to have the same effect as an oath.  This Act of Parliament was certainly a most extraordinary invasion of the common law, by which the jury ought to have every person that is examined before them, but as the wisdom of Parliament had thought proper to pass this Act, the Court was bound to pay respect to it.  By the law of the land the plaintiff cannot swear in his own case, so that if Mr. Pedley was in this country he could not go into the witness box and give evidence.  This was a subject that must hereafter be referred to the Legislative for their consideration, for by the recent Act there was no means of punishing the plaintiff if his evidence was false: he certainly might be indicted for a misdemeanor at common law, but would not be liable to the pains and penalties of perjury.  As the defendant had not thought proper to appear to resist this demand, the jury must deal with the case as proved and find a verdict for the plaintiff.  Verdict for the plaintiff, damages £185 8s. 7d.

Counsel for the plaintiff, Messrs. Foster and Windeyer; Attorneys, Messrs. Rogers and Young.

 

Notes

[1]  See also Sydney Gazette, 23 February, 14 March 1839; Australian, 14 March 1839.

Published by the Division of Law, Macquarie University