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

Attorney General v. Abercrombie [1841] NSWSupC 78

Crown debt - liquor laws - reception of English law, procedure - imprisonment for debt, Crown debt - Port Phillip, in jurisdiction of Supreme Court of New South Wales

Supreme Court of New South Wales

August 1841

Source: Sydney Herald, 9 August 1841

THE ATTORNEY GENERAL V. WILLIAM ABERCROMBIE.

This was an action of debt at the suit of the Crown, to recover a sum of £150,000, as the amount of penalties for several breaches of the provisions of the 44th section of the 2nd Victoria No. 9.

            The action is given by the Act of Victoria, which creates the penalties for brewing and distilling with prohibited materials.

            The defendant pleaded a plea of nil debet, which the Attorney General moved to set aside as irregular, but Mr. Justice Stephen, before whom the case was first brought, made an order allowing the defendant to amend his plea by adding in the margin thereof the words "by statute."

            The plea of nil debet is not given by the Act creating the penalties.

            The ATTORNEY GENERAL, with whom were the SOLICITOR GENERAL and Mr. WINDEYER, now moved to set aside the defendant's plea as being a violation of the rule of Court, which provides "that the plea of nil debet shall not be allowed in any action."

            The Counsel for the Crown contended that by the 128th rule, adopting from the 1st January, 1840, the new rules established by the Courts at Westminster, in Hilary Term, 1834, the plea of nil debet was abolished in all actions, and that the 5th section of the statute of the 21st of James I. C. 4, only referred to proceedings upon statutes then passed. They also contended that the statute of James was inapplicable to the case of the defendant, who was sued by the Crown, and not by a common informer.

            Mr. FOSTER and Mr. BROADHURST for the defendant, cited the case of Jones v. Williams, 7 Dow. P. C., p. 206, as an authority, to show that the statute of [James] referred to all actions on penal statutes, and they insisted upon the statute being applicable to the case of the defendant.

            The Judges delivered their several opinions that the statute of James did apply to the case before them; that the new Rules of Court, with respect to pleading, only adopt the English rules as they are in force in England; and that the case of Jones v. Williams was decisive in establishing that the statute of James applies to all actions on penal statutes. The Court therefore held that the plea was good, and refused the motion. The ATTORNEY GENERAL then applied for a trial at bar, and, after some opposition, to an immediate trial on the part of the defendant, on the ground of the absence of material witnesses, the Court fixed Thursday, the 26th of this month, for the trial, with liberty to the defendant to apply for its postponement.

Dowling C.J., Burton and Stephen JJ, August 1841

Source: Sydney Herald, 14 August 1841

THE ATTORNEY GENERAL V. WILLIAM

ABERCROMBIE

Mr. WINDEYER moved, upon the affidavit of the Collector of customs, for liberty to arrest the defendant in this case. The affidavit stated, that an action had been commenced against the defendant by the Attorney General at the instance of the Collector to recover a sum of £150,000, for penalties for breaches of a Colonial Act, which prohibited brewing and distilling with prohibited materials: that the defendant stated on the 11th instant to the Collector, that he intended sailing in the Seahorse for Port Phillip, and that the Collector believed that the defendant intended removing himself out of the jurisdiction of the Court.

Mr. JUSTICE BURTON said, that he thought that law of Arrest did not apply to pending actions on penal statutes, and that the affidavit was defective in stating that in proceeding to Port Phillip the defendant sought to remove himself from the jurisdiction of the Court, inasmuch as Port Phillip was within the jurisdiction of the Court, besides, the affidavit should specially state the acts by which the penalties were alleged to have been incurred.

            The Chief Justice and Mr. Justice Stephen concurred and the motion was refused.

Dowling C.J., Burton and Stephen JJ, August 1841

Source: Sydney Herald, 16 August 1841

THE ATTORNEY GENERAL V. WILLIAM

ABERCROMBIE

Mr. FOSTER and Mr. BROADHURST for the defendant, moved to postpone the trial of this case till next term. The affidavit in support of the motion, stated that the defendant could not safely go to trial on account of the absence of six material witnesses, and that the application was not made for delay.

            It was an action to recover the sum of £150,000 for penalties for breaches of a Colonial Act, which prohibits brewing and distilling with prohibited articles.

            The action was commenced on the 23rd, and the plea was filed on the 28th of July, and on the 7th instant, at the instance of the Attorney General, the 26th of this month was fixed for a trial at bar.

            The ATTORNEY and SOLICITOR GENERAL and Mr. WINDEYERopposed the motion, and relied upon the insufficiency of the defendant's affidavit, and upon [an affidavit of] the Collector of Customs, to the effect, that the defendant mentioned his intention of going to Port Phillip in the Seahorse, that he was therefore about to escape beyond the jurisdiction of the Court, and that the application was only for the delay, and to enable the defendant to make away with his property.

            The CHIEF JUSTICE said, that the case came before the Court under special circumstances, and without any delay upon either side. The affidavit of the defendant was not strictly within the rule of Court, for it did not show any reasonable expectation of procuring the attendance of the absent witnesses, neither did it precisely state the nature of the evidence which they could give; but the trial had been fixed for the 26th, subject to leave for the defendant to move for its postponement; besides, the affidavit of the Collector of Customs was not at all sufficient in shewing that the defendant had any intention of absconding. The defendant's application was on the ground of the absence of six material witnesses, and though the affidavit was not strictly within the rule; yet the rule contemplated cases ordinarily set down for trial, and not cases like the one before the Court, which had been taken out of the ordinary course of trial and fixed for a day out of term, at the instance of the Crown. Therefore having reference to the peculiar circumstances of the defendants case, the Court would postpone the trial, lest it might be said that the defendant had been hurried on to trial without being allowed sufficient time to prepare his defence; for in every case it was the object of the Court that justice should be well and satisfactorily administered.

            Mr. JUSTICE BURTON said, that he was of opinion that the trial ought to be postponed, and that the defendant was entitled to its postponement, but upon somewhat different grounds from those which had been stated by the Chief Justice. The action was a penal one, brought to recover heavy penalties at the suit of the Crown, and though no moral crime might be imputed to the defendant, still the action was one of a highly penal character, and should be regarded somewhat in the nature of a criminal charge. It was an action on a statute passed by the local legislature, not for the purpose of suppressing colonial distillation altogether, but of prohibiting distillation with molasses or sugar - an act which was in itself perfectly harmless - and, therefore, considering the peculiar constitution of the legislature which had passed the statue, as well as the highly penal nature of the action upon it, he was of opinion that the defendant ought not to be pushed on without being allowed sufficient time for his defence. The case was in the light of a criminal one, and therefore differed from ordinary cases for the postponement of trials. The Crown ought to be more lenient in this case, than it would be in a criminal case, for although the action did not subject the defendant to loss of life or of liberty, yet, if it were successful, it would undoubtedly go far to deprive him of the means of enjoying life, and, therefore, though the affidavit of the defendant might not have been sufficient between party and party, yet, as the affidavit on the part of the Crown contained no denial of any of its statements, but merely stated a belief that the application was made for delay, and that the defendant intended disposing of his property, there was no ground for refusing to postpone the trial. If a man was charged with murder and moved for a postponement of his trial, would it be any answer to that application to say that the accused intended disposing of his property if his trial were postponed, when it was always in his power to dispose of his property between his commitment and his conviction? Great injury might be [do]ne to the defendant by refusing to postpone his trial, whereas no injury could be done to the Crown, for even if the Crown obtained a verdict against the defendant upon the immediate trial, no judgment could be entered till next term, and the defendant could then dispose of his property in the mean time; besides, if the defendant was to apply for a new trial after the refusal of his motion, the court could not deny him a second trial, and then the Crown could gain nothing by the refusal. In the case before the Court, the Crown was arrayed against the subject in a penal action almost amounting to a criminal charge, and therefore it was the duty of the Court to secure to the defendant a full and fair trial.

            Mr. JUSTICE STEPHEN said, that he concurred in the judgment of the Court, and that he would express his opinion somewhat fully, because he conceived the case was of a nature which deserved the separate judgment of each member of the Court. The trial had been fixed for a particular day subject to the defendant's application for further time, and therefore he considered the present application as merely part of the former one, which thus left the Court the full power of extending the time for trial. The learned Judge said that he differed from his brother Judges in thinking that the defendant's affidavit, if not within the very words, was fully within the spirit of the rule of Court for the postponement of trials. His Honor then went through the main points of the affidavit, and after expressing an opinion that it was fully in accordance with the spirit of the rule - he concluded his judgment by saying, that the affidavit on the part of the Crown was wholly insufficient, in not showing one single fact to contradict what was positively sworn to on the part of the defendant.

            The Court then fixed Thursday the 21st of October, for trial peremptorily.

Published by the Division of Law, Macquarie University