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

Loane v. Eagar [1818] NSWKR 6; [1818] NSWSupC 6

detinue - damages, assessment of

Supreme Court
Field J., 24 November 1818
Source: Sydney Gazette, 28 November 1818[1]

This was an action of detinue to recover a day book, cash-book, and ledger, entrusted by the plaintiff to the defendant four years ago, for the purpose of recovering the plaintiff's debts from his debtors. A receipt was put in by which the defendant acknowledged to have received "books of account;" but the plaintiff could only prove him to have been in the possession of one thick book of accounts in a brown paper cover, with so many leaves torn out that the defendant's clerk could not make out some of the accounts: this book might be called a ledger. The plaintiff laid his damages at two or three thousand pounds, because he contended he should be prevented from recovering debts to that amount by the loss of the books.
But the learned Judge protested against taking into consideration any such consequential damages. How was he to prove in this action that his debts were good, and how could the expense of collecting them be set-off? If he could prove any debts at all, he might as well prove them against the debtors as the defendant, and then he would prove himself out of Court; for it would then appear he could go to law without the books. If the brown paper mutilated book, which was the only one proved to have been in the defendant's possession was so valuable as the plaintiff alleged, he should have taken care to have kept a copy of it, before he trusted it, where worms and fire might devour, or where thieves might break in and steal. Other merchants never trusted unique ledges into their Attornies hands, but kept them in iron chests; if the plaintiff chose to call himself Esquire, and to keep his books in this unmercantile manner, he must take the consequences. The learned Judge remembered an action of this nature being brought by the author of the tragedy against the manager of a theatre for the recovery of his rejected manuscript, which the manager had lost. The latter offered him his choice (like the manager in Roderick Random) of some dozen other gentlemen's plays; but the poet must have his own. Unfortunately the manager had lost this precious jewel, just as the defendant here had lost the plaintiff's account book; and Lord Ellenborough held that if the tragedy was so valuable to the plaintiff he should have taken a copy of it, before he entrusted it to the defendant without notice of the value. How could the Jury estimate the loss which the plaintiff had sustained by being deprived of the means of publishing this tragedy; and still more how could they calculate in pounds, shillings and pence the value of that immortal fame of which the poet had been deprived.
The defence in the present case was, that the defendant had made every search, but could not find the book; but not being prepared with a witness to prove that fact, or indeed that he had not now the book the Court upon the above principle awarded the plaintiff damages (in case of the book not being returned), one shilling, and one farthing for the detention.

Note

[1] Here is an example of the increased transparency of law reporting under Field J. From the records of Atkins, Collins and even Ellis Bent, we often have to guess as to their legal reasoning. By 1818, judicial reasoning was becoming more explicit. Here we can see something approaching the law of remoteness of damages. On this case, see also Supreme Court of Civil Judicature, Judgment Rolls, 1817-1824, State Records N.S.W., 9/2217 (no. 128).

Published by the Division of Law, Macquarie University