[Court of Requests – legislation, null and void]

Adey v. Sutton

Supreme Court of Van Diemen’s Land

In banco, Pedder C.J. and Montagu J., 13 August 1839

Source: Hobart Town Courier, 16 August 1839[1]

            In this case an action was brought by the plaintiff against the defendant to recover the amount of a bill of exchange of £22, accepted by the defendant. The action was brought in the Court of Requests under that act which gave to the court jurisdiction in all such causes of action where the amount did not exceed £30. The plaintiff in that action recovered a judgment, and sued out execution, the return to the writ being nulla bona. Thus the proceedings stood, when the Lieutenant-Governor’s proclamation announcing that the act had been disallowed at home, was issued in this colony. The plaintiff then commenced an action against the defendant on the same bill of exchange in the Supreme Court. The defendant pleaded a judgment recovered in the Court of Requests, as already stated. The plaintiff then applied to the court for liberty to treat this as an unsubstantial plea. The point was argued by the Solicitor-General for the plaintiff, and Mr. Stephen for the defendant, and the court were of opinion that this was not in the nature of a sham plea, and consequently the defendant had judgment. In the last term plaintiff replied in the defendant’s plea that in substance the act itself being declared null and void by the Governor’s proclamation, all proceedings under that act not completed at the time of the proclamation were in point of law altogether void. To this replication the defendant demurred, alleging as cause of demurrer, that the proclamation had not the effect which by the plaintiff’s replication was attributable to it.

            The cause having stood over since last term, Mr. Justice Montagu said, “There is a cause which has stood over for a long time for argument - Adey v Sutton - I can never look into my bag without seeing these papers. If it is to be argued at all, when is it to be argued?”

Mr. Solicitor-General - May it please your Honor, I have been always ready to argue it on the part of the plaintiff.

The Attorney-General. - I am for the defendant, and I am instructed by him to say, that he too has been always ready and anxious to have it argued.

The Solicitor-General. - Well, I never!! ---

The Attorney-General. - I only stated that I was instructed by the defendant to say so.

The Attorney-General then proceeded to argue the case on the part of the defendant, contending the judgment was perfectly regular and good, and that the proper course for the plaintiff to have adopted was to have brought an action on that judgment.

The Solicitor-General observed that the case was one of very great interest to the public generally, as there were many cases which stood exactly in the same condition as the present - he relied upon the words in the English statute, which declared not that the act should by the proclamation be repealed, but as null and void - he cited an authority in favour of this position from Mr. Dwarrie’s book on the construction of statutes.

The Attorney-General in reply submitted, that the proceedings terminated with the judgment, and were complete.

The court were unanimously of opinion that there must be judgments in this case for the defendant.