[new trial – Court of Requests]

Ex parte Morgan

Supreme Court of Van Diemen's Land

Pedder C.J. and Montagu J., 28 November 1843

Source: Hobart Town Advertiser, 1 December 1843

            Mr. Fleming applied for a rule nisi to restrain further proceedings in the Court of Requests, Hobart Town, in which George Wheatley is the plaintiff, and Richard Morgan defendant. The action was brought to recover the amount of a bill for £12, and the defence was, that due notice of dishonour had not been given. The case was tried by a jury of four, in accordance with the provisions of the act, who, on hearing the evidence, immediately, and unanimously, returned a verdict for the defendant. The plaintiff’s solicitor applied for a new trial, which the learned Commissioner of the Court (J. Hone, Esq.) took time to consider, but ultimately granted. It was now contended that the Commissioner, by the 8th section of the Court of Requests’ Act, is restrained from granting a new trial, where the jury, as in this case, came to an immediate and unanimous decision. A new trial could only be granted, where the jury had deliberated for three hours, and a verdict given by three only; or, where the jury deliberated six hours, they might be discharged, and a new trial had. But, in this case, to grant a new trial was clearly in violation of the act, the power of the Commissioner to do so being positively restrained.

            The Court was of opinion that it would tend to great inconvenience if the Commissioner of the Court of Requests - a mere court of conscience, was debarred from granting a new trial, and thought such could not have been the intention of the council. They were not satisfied, either with the certificate of judgment which had been put in, as it was not sufficiently explicit.

            Rule refused.