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

Cable v. Sinclair [1788] NSWKR 7; [1788] NSWSupC 7

detinue - felony attaint

Court of Civil Jurisdiction

Collins J.A., July 1788

Source: Court of Civil Jurisdiction Proceedings, 1788-1814, State Records of New South Wales, 2/8147[1] 

Original manuscript

[1] Sydney Cove County of Cumberland to wit.                   

To David Collins esq., Judge Advocate in and for the territory of New South Wales etc. etc. etc.

Whereas Henry Cable and his wife, new settlers of this place, had before they left England a certain parcel shipped on board the Alexander transport Duncan Sinclair Master, consisting of cloaths and several other articles suitable for their present situation, which were collected and bought at the expence of many charitable disposed persons for the use of the said Henry Cable, his wife and child. Several applications has been made for the express purpose of obtaining the said parcel from the Master of the Alexander now lying at this port, and that without effect (save and except) a small part of the said parcel containing a few books, the residue and remainder, which is of a more considerable value still remains on board the said ship Alexander, the Master of which, seems to be very neglectfull in not causing the same to be delivered, to its respective owners as aforesaid. Henry Cable and Susannah Cable his wife most humbly prays you will be pleased forthwith to cause the said Duncan Sinclair, Master of the Alexander aforesaid, to appear before you to shew cause why the remaining parcel is not duly and truly delivered in that ample and beneficial a manner as is customary [2] in the delivering of goods. And also humbly prays you will on default of the parcel not being forthcoming take and use such lawfull and legal means for the recover or value thereof, as your honour shall think most expedient.

Sined by the hands of the said Henry Cable and Susannah Cable his wife this the First day of July in the year of our Lord 1788.

his                                                         her

Henry X Cable                                     Susannah X Cable

mark                                                     mark

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[3] Sydney Cove Cumberland to wit. At a Civil Court of Jurisdiction held by order of his Excellency the Governor 1st July, 1788.

Present             the Judge Advocate, the Rev. Mr Richard Johnson, John White esq.

His Majesty's Patent for establishing the Court of Civil Jurisdiction was read. His Excellency's order for its assembling and appointment of the members, were also read.

Henry Cable, labourer came before the said Court of Civil Jurisdiction, with complaint against Duncan Sinclair, Master of the Alexander transport, stating that a parcel consisting of cloaths and several other articles were shipped for the use of him, his wife and child, on board the said ship, before they left England. And that several applications had been made by him for obtaining the said parcel from the said Duncan Sinclair but without effect to the great detriment of himself, his wife and child praying that the said Duncan Sinclair may be summoned to appear to shew cause why the said parcel is not forthcoming; or to make restitution of the value thereof, which the said Henry Cable made affidavit was to the amount of 15 pounds, or thereabouts.

The court issued a warrant under the hand and seal of the Judge Advocate, to the Provost Marshal, commanding him to bring the said Duncan Sinclair before the said court, at five of the clock on the evening of the 2nd of July, to answer to the said complaint.

            [4] And the court adjourned until tomorrow, four of the clock in the afternoon.

2nd July 1788.

The court met according to the adjournment and adjourned over again to four of the clock on Saturday the fifth instant.

5th July, 1788.

The court again met according to adjournment.

The Provost Marshal at 4 o'clock, came before the court with the writ and Duncan Sinclair, Master of the Alexander transport.

The complaint of Henry Cable was read to the said Duncan Sinclair, who joined issue on the business.

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[5] Cumberland to wit.                        1st July, 1788.

I Henry Cable do make oath that to the best of my knowledge and belief, the value of the cloaths and other articles contained in the parcel directed for me, and shipped for my use on board the Alexander transport, Duncan Sinclair Master lying in the River Thames in December, 1786, was 15 pounds or thereabouts.

Sworn before me One of his Majesty's Justices.                     The mark

David Collins J.A.                                                                   of X Henry Cable.

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Cumberland to wit. 1st July, 1788.

Whereas information and complaint hath been made to the Court of Civil Jurisdiction for the territory of New South Wales, assembled in Sydney Cove, in the County of Cumberland, in the territory aforesaid, by Henry Cable, labourer, of the county aforesaid, stating, that a parcel consisting of cloaths and other articles, to the value of 15 pounds, or thereabouts, (of which the said Henry Cable hath made oath before the Judge Advocate of the territory aforesaid) was shipped for the use of him, his wife, and child, on board the ship Alexander, Duncan Sinclair, Master, in December, 1786; the said ship then lying in the River Thames, in the county of Middlesex, in the Kingdom of England; and that several applications had been made for obtaining the said parcel from the said Duncan Sinclair, but without effect, and praying the restitution of the said parcel, or the value thereof, might be made by the said Duncan Sinclair. These are therefore to require you to bring the said Duncan Sinclair, before the said Court of Civil Jurisdiction, at four of the clock in the afternoon of the second of July to answer to the said information and complaint, and to be further dealt with [6] according to law. And be you then there, to satisfy what you shall have done with the provisions. Herein fail you not.

Given under my hand and seal at Sydney Cove in the county of Cumberland, this first day of July, in the year of our Lord, one thousand, seven hundred, and eighty eight - and in the twenty eighth of his Majesty's reign.

David Collins, Judge-Advocate.

To the acting Provost Marshal of the territory of New South Wales .

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[7] The deposition of William Aston Long - First Mate of the Alexander transport,

Duncan Sinclair, Master.

William Aston Long, deposes that on the 25th of December 1786, a parcel came on board the Alexander transport, directed to Susannah Holmes, or otherwise Cable. That the parcel was sewed up in hessian matting. That the whole might weigh about twenty five pounds; that on receiving it, he sent it down in the gun-room. That the receipt of the parcel was known to several people in the ship. That Duncan Sinclair was the Master of the ship, but at that time in London . That before the ship left England, he made enquiry on board the Lady Penrhyn, if the person to whom the parcel was addressed, was in that ship. That he was answered in the negative. That at the Cape of Good Hope on the Master's enquiry for the parcel, it was looked for and said to be found. That the delivery of it was countermanded then, and put off until the arrival of the expedition at New South Wales . That on her arrival there, the owner of the parcel, as well as several others, applied for the delivery of the parcel, but it never could be found. This deponent further deposes that in the passage of the ship from the Downs to Portsmouth, a number of books had fallen from the parcel, the matting haven broken. That he took them up, and [8] made a separate parcel of them. That he took them into his cabin, where they remained for some time, until the cabin being locked, and having no dry place to put them in, he sent them down below into the gun room, and that on enquiry at New South Wales for the parcel, that of the books only could be found.

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[9] The Deposition of Thomas Trimmings, Steward of the Alexander transport.

Thomas Trimmings, being duly sworn, deposes that he remembers being directed by the Mate of the Ship to look for the parcel directed for Susannah Holmes, otherwise Cable. That he remembers also that at Sea, betwixt Teneriffe and the Rio de Janeiro, he saw the parcel. That he then put it, with several other parcels belonging to the convicts, down the scuttle into the after hold of the ship. That the ship's company were allowed to have access to the after hold. That some of the convicts sometimes were allowed to go backwards and forwards into the gunroom. That at Botany Bay, he delivered out the greater part of the parcels he put into the gun room, but did not see any thing of that containing the cloaths. He saw only the books. That at the Cape of Good Hope he was desired to look for the parcel, but could not find it.

The   mark of    X    Thomas Trimmings.

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The deposition of John Hunter esq., Captain of his Majesty's Ship the Sirius .

John Hunter esq. being sworn, deposes that at the Cape of Good Hope, application was made to him by his Excellency Governor Phillip to cause inquiry to be made for the parcel on board the Alexander . That he immediately applied to Duncan Sinclair, desiring him to search for the article. That the said D. Sinclair, said he would cause search to be forthwith made. That some after time the Master D. Sinclair acquainted him that one of the parcels was found, and he did not doubt but the other would be found, but that the after hold was in such a disturbed state, it was almost impossible to look for it. That this deponent told Captain Sinclair, that as long as the parcel was safe it was very well, and to deliver it at Botany Bay .

John Hunter

The court found a verdict for the plaintiff, to the value stated by him in the complaint.

David Collins, Judge Advocate.[2] 

 

Notes

[1] This is the first civil action brought in Australian legal history. In it, two convicts successfully sued the master of one of the first fleet ships for the loss of their baggage on the voyage. In doing so, commentators argue, the colony began with the rule of law rather than the simple rule of the lash.

It was not necessarily the rule of English law, however. In reaching this decision, the Judge Advocate, David Collins, ignored the English common law rule of felony attaint. Under that rule, those who had been sentenced to death for felony were unable to hold property, give evidence or sue in the court. Henry and Susannah had been sentenced to death, and their attaint should have followed them for the full period of their transportation (which was granted to them as a concession). Thus the ambivalent relationship between Australian and English common law commenced in the very first case.

Cable is usually spelt Kable. Henry became a leading merchant in the colony, though he later fell into deep financial difficulties.

There has been considerable commentary on this case. See for example, David Neal, The Rule of Law in a Penal Colony, Cambridge University Press, 1991, ch. 1; Bruce Kercher, Debt Seduction and Other Disasters: the Birth of Civil Law in Convict NSW, Federation Press, 1996, Introduction.

[2]  This last page is folded in four parts.   On the second part are the words "1788. Civil Court. July".   On the fourth part, it states " New South Wales. Civil Court. 1st . July 1788."

Published by the Division of Law, Macquarie University