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

Bryant v. Hook [1812] NSWKR 2; [1812] NSWSupC 2

set-off - shipping law - employment, discharge - seal trade - damages, compensation for allowance of provisions

Court of Civil Jurisdiction
Bent J.A., 31 January 1812
Source: Court of Civil Jurisdiction Proceedings, 1788-1814, State Records N.S.W,   5 /1107 (case no. 88)[1]

[123] Martin Bryant, plaintiff against Charles Hook esq., agent to defendant Robert Campbell esq. the elder, who appears by George Crossley his agent

Action by special [124] suit for damages sustained by the plaintiff the amount of ¿400 as by the suit produced and read.

Defendant appears by George Crossley his agent and pleads general issue and a set-off, and that the defendant was discharged from this employ by his own consent and that he left the employ for a longer time then he was authorised by the articles and hath therefore forfeited whatever claim he had under them.

This action is brought to recover the 80th lay of a certain quantity of skins and oil and procured at Campbell and Macquarie Islands by certain persons belonging to the Perseverance.

Second to receive a compensation for a short allowance of provisions whilst in the employ of the deponent at Campbell Island, and

Thirdly to recover the sum of ¿100 being a penalty which each party born on themselves to forfeit a case they took the articles of 30th September 1809.

It is admitted that by the articles of 30th September 1809 the plaintiff entered on board the Perseverance in the employ of the defendant and went on to Campbell Island and there remained procuring oil until the 20th May 1810 and then returned in the Perseverance to Sydney, [125] where he arrived on 8th January 1811.

It is agreed that the admissions and evidence received in a cause in which Jeremiah Harrison was plaintiff and the said Robert Campbell esq. was defendant lately heard in this court shall be used as evidence in this cause.

It is further admitted that the plaintiff Martin Bryant did not go on the Perseverance on the voyage to Newcastle in that cause mentioned, nor was ever at Macquarie Island in the service of Mr Campbell the defendant.

The statement on the part of the plaintiff heard and filed.

Mr James Gordon sworn, says I am clerk to Mr Campbell the defendant. I recollect Martin Bryant the plaintiff. He was in Campbell 's employ. I do not of my own knowledge know the reason of his leaving that employ. The plaintiff entered as cooper on board the Perseverance.

Richard Jackson sworn, says I am a foremast man in the employ of Mr Hook. I serve on board the Perseverance with the plaintiff. As far as I know he was attentive to his duty. I recollect hearing some words between Mr Hook and the plaintiff. I did not see Mr Hook push him. I heard the plaintiff say "Mr Hook do not strike me". Mr Hook brought the plaintiff before a Bench of Magistrates at Sydney. It was relative to some dispute between the plaintiff and one Wood, the overseer, at Campbell Island. That charge was dismissed after leaving the court. Mr Hook said "cooper I have done with you". The plaintiff answered [126] "but I have not done with you. I hold myself in readiness to bring my skins up."

The proceedings before the Bench of Magistrates took place on the 25th May 1811.

The Perseverance sailed for Macquarie Island under the command of Mr J. Gordon on the 9th June following.

Richard Jackson cross examined says the dispute between Mr Hook and the plaintiff took place on a Saturday. On the Monday following the Perseverance dropped out of the cove and dropped down the harbour. Martin Bryant helped to winch the anchor. He had come on board just before. Murray the Master then shewed him a piece of paper. He was aboard from Saturday till Monday.

James O'Byrne sworn, says I was steward on the brig Perseverance. As long as the plaintiff served on board with me he behaved well. About the 9th February the plaintiff was taken out of the Perseverance by a constable.

It is now admitted that the plaintiff was taken out of the ship by a constable under the authority of Mr Wentworth upon the application of Mr Hook. And at this time he was a prisoner.

The case of the defendant is now heard and filed.

William Mannix sworn, says I am cooper on the employ of Mr Campbell. A few days before [127] the Perseverance sailed for the Coal River I was in his cooperage when Mr Hook came there. Bryant was there. Mr Hook asked Bryant what he was doing there. Bryant said he was at work for the brig. Mr Hook said "did not you tell me to suit myself with another cooper?" "I did", said Bryant, "and so suit yourself with another cooper as soon as you think proper". Mr Hook said, "I have done so. I have taken you at your word. I'll have nothing more to do with you, so go a long about your business." Bryant then went away. Nobody was there but a boy of the name of Richard Allwright.

Cross examined says at that time Martin followed Mr Hook out of the cooperage, and I heard him say he would not discharge himself until he had fulfilled his articles. Before this conversation took place, some days before them had been a dispute between the parties. After that dispute Bryant had returned to work without Mr Hook's knowledge. As soon as Mr Hook discovered it he came to the cooperage and expressed the evidence I gave.

Richard Allwright sworn, says I am an apprentice to Mr Campbell. I recollect a conversation taking place between Mr Hook and Martin Bryant in Mr Campbell's cooperage. All I recollect is Bryant said "suit yourself with another cooper". Mr Hook said something which I don't know and Bryant [128] said "I'll go when my articles are up".

William Mannix further says after the conversation Bryant did not come to work at the coopery to my knowledge. He could hardly come without my knowing it. He might be there without Mr Hook's knowledge. I could not get a cooper for the vessel she went for Macquarie Island. I was on the look out by Mr Hook's desire.

John Wood allowed to be called by the court at the request of the plaintiff says I was second officer of the brig Perseverance. Mr Hook sent for me and told me that Bryant had desired him to provide himself with another cooper. After he was at work with Mr Hook's knowledge. He could not be on board without Mr Hook's knowledge.

The court having had mature deliberation give judgment for the defendant, costs ¿0.13.6.

Note

[1] See B. Kercher, Debt Seduction and Other Disasters: the Birth of Civil Law in Convict N.S.W., Federation Press, Annandale, 1996, 163-165. See also Jarrett v. James, 1814.

Published by the Division of Law, Macquarie University