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

Cunningham v. Gray and Munce [1850] NSWSupC 2 [Masonic Lodge - prohibition - appeals]

Masonic Lodge - prohibition - appeals

Supreme Court of New South Wales, Moreton Bay

Full court, 25 April 1850

Source: Sydney Morning Herald, 26 April 1850, Supreme Court Collection, vol. 3, pp 92-93

In this case, which was part heard last Monday, the plaintiff, as it was now said, (though it did not appear on the plaint or bill of particulars) a member of a certain Masonic Lodge, sued the defendants, also members of the same Lodge, in the Court of Requests, Sydney, to recover from them rent for a room occupied by the lodge.

It now appeared on affidavit that the defendants never undertook to make themselves personally responsible for the rent in question. The defendants pleaded first, never indebted; secondly, that the plaintiff was a member of the same lodge with the defendants; and, thirdly, that defendants were members with others, who were in existence, but not all named.

Upon the case coming on to be heard, the Commissioner when applied to, struck out the last plea, as being bad for uncertainty. The plaintiff had a verdict for £15.

An application was now made for a writ of prohibition to prevent the plaintiff and the Commissioner from proceeding to judgment.

Mr. HOLROYD, for the plaintiff, applied to have the motion postponed, on the ground that his client could not procure a copy of the Commissioner's notes; it was sworn that they were material for the purpose of the motion.

Mr. FISHER, who appeared to make the motion, contended that the notes were not necessary.

The Court called upon Mr. Fisher to proceed, adding, that if the Court found the notes were necessary, a rule nisi would only be granted in the first instance.

Mr. Fisher then proceeded: He contended that a writ of prohibition ought to go on the following ground, first, because the Commissioner had no jurisdiction, inasmuch as the provisions of the Joint Contractors Act did not apply to the Court of Requests, but only to the Supreme Court; secondly, and if it did so apply, then it ought to appear on the pleadings that all the other partners were not in existence, or not in the colony, &c.; thirdly, that though the Court could decide and does decide according to equitable principles, yet it had not the power of a Court of Equity to entertain this case, being in its nature a bill in equity, one partner suing another; and, fourthly, the Commissioner had exceeded the powers given him by the statute, by striking out one of the pleas, he having only power to amend.

At this stage of the case the Court was adjourned.

Messrs. BROADHURST and HOLROYD now opposed the motion at great length. They said sentence or judgment having been given, an application for a writ of prohibition was too late. They said, also, that the proceedings did not show that the Commissioner had no jurisdiction. He, however, in leaving the case with the assessors, left it for them to find whether the defendants were members or not, telling them that that fact would be a good ground of defence. So that the point they argued was left most favourable for the defendants, giving them a chance of getting a verdict on that ground.

Mr. FISHER replied.

His Honor the CHIEF JUSTICE said, he was of opinion there had been no excess of jurisdiction exercised in this case. The plea that the plaintiff was a member of the Lodge with the defendants, was a plea not going to the jurisdiction, but in bar to the merits. The Court of Requests was more a Court of Equity than of Common Law: and he was not prepared to say that, in that Court, one partner could not sue his co-partner, as even at common law he may do sometimes. So that, therefore, the point as to the jurisdiction failed. The Commissioner, however, left the point of membership to the assessors, telling them that if the plea were proved, it would be a good defence. The question so left, was properly left, and supposing the verdict were wrongly decided, still this Court could not review the decision. Then, as to the striking out the third plea, as a nullity; in this Court, it would clearly have been so for three reasons; but then the rules of the Court do not apply to the Court of Requests, and he was disposed to think that the Commissioner was wrong in so applying them; but this was an error of practice only. The course he ought to have adopted was, to have withdrawn that plea from the consideration of the assessors. His Honor, in conclusion said, he did not see, on the affidavits, that the plaintiff sued under the Joint Contractors' Act.

The rule, under the circumstances ought to be discharged, but without costs.

The rest of the Court concurred.

Published by the Division of Law, Macquarie University