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

Attorney General v. Evans [1841] NSWSupC 114

bond, enforcement of - equity

Supreme Court of New South Wales

Dowling C.J., Burton and Stephen JJ, 26 November 1841

Source: Sydney Herald, 27 November 1841



BEFORE the CHIEF JUSTICE, and their Honors Judge BURTON and JudgeSTEPHEN.


The petition of appeal having been read Mr. FOSTER on the part of the appellant, said, that the question for the consideration of their Honors was so simple, that it would not occupy much of the time of the Court. The original suit by the Attorney-General, had been commenced against the defendant on a bond given by him to the Crown, conditioned for the payment of £168, on consideration of his having been allowed certain cattle and their increase; and that if the money were not paid, the cattle and their increase were to revert to the defendant. He, the learned Counsel now submitted to the Court, that the Crown had a right to these cattle and their increase, neither the money, nor any other cattle having been delivered by the defendant to the plaintiff. The terms of the bond were such, that the cattle always remained the property of the Crown, until the money was paid. This was a clear position issuing from the necessary interpretation of the bond; which he, the learned Counsel contended would settle the whole question. But independently of this point, it had been contended by the other side, on a suggestion of Judge Willis, that the remedy on this bond, was to be sought in a court of law; but he, (Mr. Foster) contended, that he crown had a right to seek its remedy in any court it chose. He was at a loss to conceive on the ground an application for an account of the cattle could be resisted by the other side; clearly both the law and the facts were for the Crown; and a decree for an account, the learned gentleman conceived, must be eventually pronounced against the defendant.

            Mr. WINDEYER followed on the same side and said, that from the materials before him [LINE OMITTED] had nearly anticipated everything which he, Mr. Win[deyer] [LINE OMITTED] the present case. It was clearly an undefended one. The case exhibited by the complainant's bill had been fully proved, and in no part answered by the defendant. On this single ground, the Crown was entitled to have a decree pronounced in its favour. The first ground which Judge Willis had alleged for dismissing the original bill was, that the Queen being merely the cestui qui trust, could not have sued on the bond at law, and therefore could not avail herself of the bond in equity. Now he, Mr. Windeyer, contended that the very reason alleged, viz. - the Queen's incompetency to sue at law was the reason, and a sufficient one, for giving her a locus standi in equity.  He, the learned Counsel, admitted that if the Commissary to whom the bond had been given, had sued in equity, he might have been turned round on the ground of the matter being cognizable at law; yet this was the very reason why the Queen was obliged to come, and did come to equity. His Honor Mr. Justice Willis was therefore quite under an error, in holding that the Crown could not come to equity; and the Court could at once see by reference to the unanswered facts alleged in the complainant's bill, that the decree which Judge Willis had pronounced must now be revised.

            Mr. DONNELLY for the defendant, stated, that the bond had all along been treated as an agreement, and admitting for the sake of argument that it was an agreement, it must be conceded by the other side, that it was incumbent on the complainant to come to the Court in reasonable time. He, Mr. Donnelly, was ready to admit that the general maxim, "time could not run against the Queen," was good at common law, but the principle did not hold equally in equity. There the Crown was required to come to the Court, at any rate within twenty years, or it was barred by time. The learned gentleman then cited a case which went to show that when the defendant was called upon in the name of the Crown, to shew by what warrant he held a certain municipal office; the rule was discharged on the ground that the applicant had not come to the Court in time. But besides this case, there were others which went to show that where a long period of time had run since a party's liability on the bond had accrued, it would be presumed by the Court to have been satisfied. He, Mr. Donnelly, would admit that it was the privilege of the Crown to sue in any Court it selected for that purpose, but even then the Crown must sue according to rules of law. The Crown had proceeded against the defendant for the increase of the cattle, when it was by no means clear from the expressions in the bond; the words "cows" and "oxen" only being used; that the means of increase had been supplied originally to the defendant by the Crown; and therefore it had no right to look to the defendant for a result, for the production of which it had wholly omitted to supply the natural means.

            Mr. BROADHURST followed, on the same side, and said, that the case was one of peculiar hardship on the defendant, and contended that the Crown had proved no such case as entitled it to a decree against the defendant. He, the learned counsel, would first call the attention of the Court to the language of the bond, which appeared to have been drawn in the dark ages of the colony, and was very ambiguous in its meaning. The Crown had contended, that the constructive admission in the defendant's answer relating to the receipt of the cattle by the defendant, constituted an e[s]toppel which precluded him from denying such receipt. This argument he, Mr. Broadhurst, contended, could not hold, as the answer had not been read by the complainant as evidence. Now, the words in the bond might, without violence being done to them, mean, that he cattle were yet to be received by the defendant, at the time the bond was executed, as nothing was more common, than for bonds conditioned for the repayment of money, to be drawn and executed long before the payment of the money, for the repayment of which, the bond was intended to be a security. He, Mr. Broadhurst, also contended, that the Crown was now precluded from having a decree, from the great length of time which had elapsed. This lapse of time created a presumption, which not being rebutted by evidence on the other side, - would induce Courts of Equity to over-rule the claim. The terms of the defendant's answer also supported the presumption that the bond has been satisfied, or that the Crown had relinguished its claim. The defendant had set forth, that, in consideration of his services as a Government Surveyer, Governor Macquarie had given the cattle in question to the defendant, conditioned upon the Government at home ratifying the gift. The bond had been sent home for perusal, and returned, and there was no evidence that the Home Government had at any time dissented from the terms set forth in the defendant's answer.  The Court, therefore, had a right to presume, that the cattle were a gift, that the bond was satisfied, and no case whatever had been made out by the other side to induce them to come to a different decision.

            Mr. FOSTER was about to reply, but was stopped by the Court.

            The CHIEF JUSTICE said, their Honors were of opinion that the Crown had equity, and the decree must be reversed.

            The Court then adjourned at about two o'clock until Friday next.

Published by the Division of Law, Macquarie University