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Decisions of the Nineteenth Century Tasmanian Superior Courts

Blastpiel v. McNeely [1833]

statute of limitations - civil procedure - goods sold and delivered - conflict of laws

Supreme Court of Van Diemen's Land

Pedder C.J., 10 July 1833

Source: Tasmanian, 12 July 1833

Before His Honor the Chief Justice. Charles Swanston and Charles McLachlan, Assessors

This was an action brought by the plaintiff, a furrier in London, against the defendant, residing in this Colony, for a balance of account amounting to £285 4s. 6d., for goods sold and delivered.

For the defence the statute of limitations was pleaded. The Attorney General appeared for the plaintiff, and Mr. Gellibrand for the defendant. This cause was a very important one. It appeared that the defendant, McNeely, who had formerly been a furrier in Dublin, had carried on extensive dealings with the plaintiff, and that before he came to this Colony, about six years ago, he had arranged all his affairs, leaving, however, a balance of some amount due to the plaintiff. The Attorney General rested his plea upon an Act of Parliament (54 George 3, c.15), for the better administration of justice in New South Wales, which enacts, that by an affidavit, made before a major, or principal magistrate of any town in England, a creditor can maintain an action in the courts of the Colony aforesaid. An affidavit, therefore, from the plaintiff, and one from his solicitor, Mr. Reed, were put in and read, with several letters of the defendant, proving his commercial dealings with the plaintiff.

Mr. Gellibrand took an objection to the affidavit, and to the Act altogether. The Act, however, provided that the affidavits only of such persons should be received, as were themselves qualified to give evidence, had they been personally present. He submitted, that as the plaintiff could not appear as a witness in his own case, his affidavit was of no use; and he urged very forceably the impolicy and the evil tendency of the Act, if it were to be thus construed, by the latitude it would give to unprincipled persons to sue, under false pretences, individuals of property, in this or the Sister Colony.

The Attorney General, in reply, observed that this Act was not impolite; that it was enacted for a peculiar exigency, and to operate upon peculiar persons. He instanced the present defendant, who first refused to acknowledge any balance, and afterwards endeavoured to avail himself of the statute of limitations.

It was proved, however, by the defendant's own letters, that a balance was due, and the assessors found for the plaintiff. Damages - 1s.

Published by the Division of Law, Macquarie University and the School of History and Classics, University of Tasmania