JUDGES OF THE SUPREME COURT OF NEW SOUTH WALES DURING THE PERIOD CONTAINED IN THIS VOLUME. SIR ALFRED STEPHEN, Knt., C.B., Chief Justice. ALFRED CHEEKE, Esq. PETER FAUCETT, Esq. PRIMARY JUDGE IN EQUITY. JOHN FLETCHER HARGRAVE, Esq. ATTORNEY GENERAL. JAMES MARTIN, Esq. SOLICITOR GENERAL. ROBERT MACKINTOSH ISAACS, Esq. the 10 Vic., Elderkin* THE declaration stated that the plaintiff, administra- An action in the Supreme trix of George Simpson, deceased and intestate, Court will sued the defendant, for that the said George Simpson in not lie on a judgment or his lifetime, on the 28th April, 1865, at the Court of adjudication Petty Sessions at Penrith, in the colony of New by two justices in Petty SesSouth Wales, in a matter then depending in the said sions under Court at the suit of the said George Simpson against No. 10; followthe now defendant, the said George Simpson by the ing Berkeley v. consideration and judgment of the said Court, then (Hargrave, J., having lawful cognizance and authority in that behalf, dubitante). recovered against the defendant the sum of £30, for a debt due from the defendant to the said George Simpson, for work and labor done and performed by the said George Simpson for the defendant, at his request, which sum of money the defendant was by the said Court adjudged and ordered to pay to the said George Simpson ; and the said judgment is still in full force and unsatisfied. Averment, that the cause of action of the said George Simpson arose within the jurisdiction of the said Court, and that the said Court was the nearest Court of Petty Sessions to the place where the said cause of action arose. Demurrer and joinder. * 1 E. & B. 805; 22 L. J. Q. B. 281. VOL. 6-A 1866. SIMPSON V. RODD. Rogers in support of the demurrer. The action is not maintainable in the Supreme Court on such a judgment or order as is here alleged. The averment that the Court. was the nearest Court of Petty Sessions, shows that this is an adjudication under the Masters and Servants Act (a); but, under that Act, the justices have jurisdiction in cases of wages; but not, as is alleged here, in cases of debt for work and labor. If the order were made under the Small Debts Act (b), as the amount is over £10, it would be necessary to aver that there was a written consent. The Masters and Servants Act contains special provisions as to the way in which the wages may be recovered. By section 6, the justices may order the agent, overseer, or manager of any master to pay the "wages due to the servant; and in case of refusal or nonpayment of any sum so ordered to be paid by such agent, &c. or in case such agent, &c., shall neglect or refuse to give a draft or order on his master, &c., for such sum" -they may issue a distress warrant. By section 10, in default of distress, the master may be imprisoned for not exceeding fourteen days. The case, therefore, is within the principle of Berkeley v. Elderkin (c). In that case Lord Campbell says, "prima facie, an action lies on the judgment of every Court of competent jurisdiction; but I think it quite clear, when we look at the provisions of stat. 9 and 10 Vic., c. 95, that the intention of the Legislature was to confine the remedy on the judgments of courts constituted under that Act to the remedies specifically provided in the Act. The policy of the Act was to give an easy and cheap remedy for the recovery of small debts. The intention of the Legislature will be entirely defeated if the creditor be at liberty to adopt this course. The Act provides special remedies for enforcing the judgment, both as against the property and as against the person of the debtor. As to his property, that is in part protected from execution. That protection would be entirely lost if this action were maintainable; for, on the judgment in the superior (a) 20 Vic., No. 28. (b) 10 Vic., No. 10. (c) 1 E. & B. 805; 22 L. J. Q. B. 281. Court, a fi. fa. may issue, under which the tools of the trade of the debtor (which are protected from seizure by the section 96) must be taken and sold by the sheriff. Again, as to the debtor's person, he can be imprisoned under the Act only for forty days; and then it is not by way of execution, but as a punishment for contempt. But if this action lies, he may be taken in execution, exactly as if the creditor had sued in the superior Court in the first instance, without availing himself previously of the facilities given by the county Court. I think this brings the case within the principle, that, where new rights are given with specific remedies, the remedy is confined to those specifically given." This authority has been followed by the Court of Exchequer in Austin v. Mills (a). As far as appears on the face of this declaration, the defendant may be the agent for the employer of Simpson. But, could an agent, against whom an order has been made under the Masters and Servants Act, be sued upon such order in the superior Court? [Stephen, C. J. In the Court below the agent can discharge himself by giving an order upon the master; but that would not be so if the action were in this Court.] It was not the intention of the Legislature that the inferior Court should be a nursery for litigation in the higher Courts. The declaration also shows on the face of it that the justices had no jurisdiction in the alleged suit. Darley in support of the declaration. There is nothing in the declaration to show that the judgment sued upon is under the Masters and Servants Act. The defendant can plead such fact, if he relies upon it. It is rather an order of a Petty Sessions Court under the 10 Vic., No. 10, under which the Court can adjudicate in cases up to £30. If there was no consent, as required by the 4th section, it should be pleaded. But it is submitted that, on this demurrer, the Court cannot take notice of these statutes. The averment as to jurisdiction is sufficient. For, in pleading the judgments of inferior (a) 9 Exch. 288; 23 L. J. Ex. 40. 1866. SIMPSON V. RODD. |