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

O'Burne v. Campbell [1812] NSWKR 3; [1812] NSWSupC 3

wages due - set-off - maritime law - George Crossley - Charles Hook

Court of Civil Jurisdiction
Bent J.A.., 3 and 4 February 1812
Source: Court of Civil Jurisdiction Proceedings, 1788-1814, State Records N.S.W, 5/1107 (case nos. 92 and 95)[1]

[134] James O'Burne plaintiff and Robert Campbell esq . the elder of Sydney defendant

Writ for £700, for so much money due to the plaintiff as a hired mariner and servant of the defendant and also for money paid laid out and extended by the plaintiff for the defendant at his request etc.

The defendant appears by George Crossley his agent duly authorised, and pleads the general issue and a set-off.

The plaintiff exhibits a written statement of his case which is read and filed.

It is admitted that the plaintiff by virtue of certain articles of agreement executed by him dated 30th September 1809, between the defendant on the one part and divers persons therein mentioned the other part entered the ship Perseverance in the employ of the defendant as steward and for his services therein was to draw the lay (expressed opposite his name) of such things therein mentioned as should be procured by them. The lay first signed opposite his name was the 80th. His name and the lay was afterwards erased, and afterwards the following entry is made on the same articles.

Date                 Place of Entry Men's name                  Station              Lay       Witness

30th August     Sydney             James O'Bern               Steward            60th      Fred

1810                                                                                                               Hasselburgh

[135] The admission and evidence given in the case in which J. Harrigan was plaintiff and said R. Campbell defendant, are allowed to be read as evidence in this cause.

The plaintiff does not proceed for any short allowance of provisions or for the penalty of the articles. But says he is entitled to the 60th lay instead of the 80th by the consent of the Master of the ship, who himself made the last mentioned entry on account of the great services of the plaintiff, which was afterwards confirmed by the defendant, and also says that he is entitled to wages at £6 per month from May to December 1811, and also £9 for maintenance for an interval of six weeks when the vessel was on a voyage to New Castle and he was left behind to settle the accounts and also support for 29 weeks at 30s. per week for so many weeks as he was on shore and other things as by the plaintiff's account produced.

The following document is duly proved and read.

"I do hereby certify that by the directions of Charles Hook esq . I have reentered James O'Bern ship and cabin stewart in the articles of the agreement Regd 216, and set opposite his name the sixtieth lay. I further add that he is to be paid the aforesaid sixtyeth lay share or proportion in lieu of the eightyeth the letter I have crossed.

" Governor Macquarie's Island

"October 17th 1810

"witness Robert Murray, Frederick Hasselburgh "

[136] The said Frederick Hasselburgh was Master of the Perseverance , and is now dead. The said Robert Murray was chief mate of the said vessel and is now absent.

The handwriting of both is duly proved on the oaths respectively of Catherine Hasselburgh widow of the said Frederick , and of Thomas Prosser.

It is also admitted that the said Charles Hook esq . was general agent of the said defendant at the time of the date of the said document before the date, and still is agent aforesaid.

Mr James Gordon sworn, where the steward of a ship is kept behind for the particular service of the house which employs him it is usual to allow him a maintenance. We never have paid more than 20s.6d. a week for maintenance under such circumstances, except one instance where we paid 25s. to a second mate.

The defendant admits that the plaintiff was desired to stay behind at Sydney when the Perseverance went to Newcastle to make out Captain Hasselburgh's accounts.

Mr James Gordon further says I was in Sydney on the 30th August 1810. The ship Perseverance then lay in Sydney Cove. At that time recourse might have been had to Mr Hook. I recollect the plaintiff applying to Mr Hook either to have his lay increased or to have some reward for secrecy. Previous [137] to the 6th September 1810 I recollect the plaintiff Captain Hasselburgh and Mr Hook having some conversation together. Mr Hasselburgh informed Mr Hook that the plaintiff had been offered a reward to disclose the situation of Macquarie Island . In the course of that conversation Mr Hook in my hearing told the plaintiff that if he chose he might be a rascal. He could not give him any thing to induce him to be secret, but as the Captain told him nobody have but him self and plaintiff know the situation of the island, until he was satisfied that he had not disclosed the situation of the island, he should not give him any remuneration. I have every reason to suspect he did disclose the situation of the island from what Mr Underwood told me at Macquarie Island . In point of fact the situation of the island has been discovered. The schooner Unity took a gang of men for Mr Underwood direct from their place to Macquarie Island . She sailed from the point about September 1810 I believe. The overseer of the gang told me that Oburn had given Mr Underwood the situation of the island.

Charles Feen sworn says in April 1811 I applied to O'Bern to employ him on board of the Mary and Sally , of which I was Master. I did not employ him because he said he had not his discharge from the house of Campbell .

James Bloodsworth sworn says I recollect about seven weeks ago attending at Mr Hook's the day he appointed all the men belonging [138] to the Perseverance to settle their accounts. O'Burn attended with the books. I understood him to attend as steward. I never heard of him being discharged. I believe it was a few days after the skins were landed from the Perseverance .

Wood sworn says I was one of those employed on board the Perseverance . I believe Robert Murray sold this island. I mean that he discovered the situation of the island to Captain Smith of the Aurora at Campbell 's Island about the 10th or 11th of November 1810.

Wood sworn says, question, did James Underwood disclose the situation of the island to you or any one else that you know of?

Answer. No, nor to Captain Cowper. I disclosed it to Captain Cowper.

The defendant now calls, Joseph Thompson sworn, says I was left in the employ of the defendant on Macquarie Island on the 18th of July 1810, and remained there till the 27th of August 1811. I recollect the Unity , Captain Cowper, bringing a gang of men there for Mr Underwood in December 1810.

The account of the defendants set-off is exhibited and examined by the court.

The court take time to consider till the morrow. The court adjourned until further orders.

By the court.                                                    Ellis Bent J.A.                         

The court here upon adjourns until the morrow.


Source: Court of Civil Jurisdiction Proceedings, 1788-1814, State Records N.S.W., 5/1107 (case no. 95)


[141] 4 February 1812, James O'Bern against Robert Campbell. For former proceedings in the cause see ante 92 above.

The court having heard and considered all the evidence produced now give

judgment to the plaintiff, damages £14.13.4 ½, costs £3.11.10.

           Notice of appeal on the part of the plaintiff on the 10th day of February 1812.[2]


[1] In this extraordinary case, a sailor was promised extra money to keep the location of Macquarie Island a secret. The value of the discovery of a new island is shown by the fact that 56974 seals were killed at Macquarie Island in a short period. (See Wood v. Campbell, 1812.) The plaintiff's name is spelt in three different ways in this court record.

See B. Kercher, Debt Seduction and Other Disasters: the Birth of Civil Law in Convict N.S.W., Federation Press, Annandale, 1996, 163-165.

[2]The plaintiff apparently did not proceed with the appeal. It does not appear in the Proceedings of the High Court of Appeals, 1810-1816, State Records N.S.W., 4/1724.

Published by the Division of Law, Macquarie University