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

Thomas Kent v. Captain William Mattinson [1810] NSWKR 6; [1810] NSWSupC 6

bill of lading - non delivery of rum - damages, assessment of

Court of Civil Jurisdiction
Bent J.A.., 24 September 1810
Source: Court of Civil Jurisdiction Proceedings, 1788-1814, State Records N.S.W, 5/1104 (case no. 34)[1]

[42] Defendant appears and pleads the general issue.

For the plaintiff exhibit no. 1 is read, purporting to be a bill of lading of one puncheon marked and numbered as in the margin received by the defendant on board ship Spring Grove. Signed W. Wilson

           Exhibit no 2. read, being an invoice of the price of one puncheon containing 110 Gallons of rum, puncheon marked as in the Bill of Lading, shipped on board the Spring Grove, of which defendant was Master.

           [43] It is admitted that Captain Mattinson was Master of the Spring Grove and Mr Wilson was owner.

           David Davis, being absent from the colony, an affidavit made by him before Richard Atkins esq. late Judge Advocate was read.

           Exhibit no. 3, affidavit of D. Davis, that he applied to defendant for the above puncheon of rum, on the part of Mr Kent, and received for answer that he the said defendant had drank the same on his passage from England.

           James Gordon sworn, says the Spring Grove arrived from England in the colony 4th February 1809. William Mattinson the defendant was Master. The Master brought a bill of lading of one puncheon, being the property of William Kent. From subsequent circumstances I have no doubt it meant Thomas Kent the plaintiff of the spirits that came by the Spring Grove, which was consigned to Mr Campbell, part was permitted to be sold at 20s. per gallon, and part was sent to him by government for his own use.

           Richard Brooks sworn, says on looking at the invoice price of this rum, it must have been of the best quality.

           James Underwood sworn says, I arrived in this colony about two months after the Spring Grove. I brought a quantity of Jamaica rum with me. [44] Government took two casks of Jamaica rum and allowed me 15 shillings a gallon for it clear of duty, and in consideration of that they allowed me to have three puncheons of rum for my own use, one puncheon of which I sold for £2.10.0 sterling per gallon. Another cask I sold for £3 sterling per gallon.

           Here the plaintiff's case closed.

           On the part of defendant, exhibit no 1. was read, stating his case.

           Exhibit no. 4. read, being a custom house docket, stating that 216 gallons of British plantation rum had been entered for the consumption of the crew.

           Richard Brooks sworn, says I have very often received spirits on board for private individuals and entered it in the docket as for the use of the crew. It is quite common. It is very common that a ship is nearly laden before a Master is appointed. I should not have conceived myself in opening a puncheon described as this is in a cause book.

           John Gowen sworn says, I was the government storekeeper at the time of the arrival of the Spring Grove. I received all the spirits that was received from that ship into the bonded store. There was not any puncheon received by me marked as mentioned exhibits 1 and 2, nor [45] any puncheon containing 110 gallons.

           James Gordon sworn, says at the time of the arrival of the Spring Grove in this colony I was clerk to Mr Campbell. I received from government store into Mr Campbell's store one puncheon of rum marked as in the exhibit no. 1. It was one of those puncheons allowed by government for Mr Campbell's private use. The mark at the time was nearly obliterated. This cask was applied to Mr Campbell's use.

           It appeared that on the 17 November 1809 the present plaintiff obtained a rule of court from the then Court of Civil Jurisdiction calling upon the defendant to shew cause why he did not deliver to plaintiff a puncheon of rum. Upon the hearing of this rule defendant was ordered to give plaintiff 110 gallons of rum. The order of court was not complied with. The court then ordered Captain Mattinson to be taken into custody for a contempt of court. Captain Mattinson was allowed to leave the colony by Mr Atkins or Mr Campbell and Mr Hook binding themselves to pay such damages and should be received in action to be brought against him by plaintiff for the damages [46] sustained in consequence of the non-delivery of the rum. The bond was entered into without the knowledge or consent of the plaintiff.

           In consequence of this, an execution was issued by the then Judge Advocate to levy 110 gallons of spirits or £110 upon the effects of R. Campbell esq. and plaintiff received £110, as he says in part payment.

           In consequence of that bond plaintiff brought an action against defendant and recovered a bond of £100.

           The execution was previous to the action brought, and all these law proceedings occurred subsequent to the arrest of Governor Bligh and prior to the arrival of Governor Macquarie.

The court upon full consideration, and considering that the plaintiff had already received £110, give judgment for the plaintiff, damages £100 and costs.

Note

[1] This is the most important part of a complex series of legal actions concerning the non-delivery of 110 gallons of rum. One of the questions in issue was what was the assessed value of rum when the government fixed a price at £1 (20 shillings) per gallon? The case also shows the contemporary attitude to the consumption of rum, and sailors' customary uses of it on the voyage to Sydney.

See also in State Records N.S.W., Thomas Kent v. Captain William Mattinson, 21 November 1809, Court of Criminal Jurisdiction, Minutes of Proceedings, February 1801 to December 1808, State Records N.S.W., 2/8149; Thomas Kent v. Robert Campbell as surety for Captain Mattinson, 17 November and 22 December 1809, 2/8149; and see B. Kercher, Debt Seduction and Other Disasters: the Birth of Civil Law in Convict N.S.W., Federation Press, Annandale, 1996, 152-154.

Published by the Division of Law, Macquarie University