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

The Governor v. Browne [1819] NSWKR 5; [1819] NSWSupC 5

assumpsit - maritime law - master and servants - India - Asiatic Servants case

Supreme Court
Field J., 14 September 1819
Source: Sydney Gazette, 18 September 1819[1]

This was an action of assumpsit brought by His Excellency against a Merchant of this Town to recover the sum of £63 10s which the Governor had caused to be paid by the Police Funds for the subsistence and £322 10s. for the passage to India of 30 native Asiatic servants of the defendant. It appeared by evidence that these natives having been brought to this Colony from Calcutta as servants by the defendant, made complaint to the Governor in the month of June last of cruel usage and ill state at the hands of the defendant, in consequence of which His Excellency caused said complaints to be investigated by the Bench of Magistrates. On the 12th day of July the bench found that the complainants "had been misused as to inadequate and very insufficient wages for the due maintenance and support in this Country and otherwise insufficiently paid, ill fed, duly worth, greatly aggrieved and unjustly treated in the service of the defendant, and did therefore in pursuance of the statute order them to be discharged from the said service." During the investigation, the Indians were supported at the expense of government, and in consequence of the determination of the Magistrates, they were shipped on board the Mary of which ship the defendant is principal owner the Crown paying for their passage; and the question was whether the Governor could recover these payments against the defendant in this action upon promises. It appeared that the defendant was always present during the investigation by the Magistrates; and had then said he would give all such of his servants, as were entitled to it by their agreements, passage home, and would generally submit to what was right. On the 17th of June he wrote to the Judge Advocate as Chairman of the Bench that he would give passage to all such as were unwilling to remain; but on the 12th July the day of the Magistrate's order to rescind the relation of master and servant, he restricted this offer to sending home by the Mary only such whose times had expired: and on the 18th July four of the Indians entered into a new agreement with him for another year. The Governor however determined to send them all home at the expense of the Crown; and on the 22nd July they would shift accordingly on board the Mary, the master of which received the passage money.
Under these circumstances the Learned Judge (Field) held that even if the Court should be of the opinion that the defendant was morally bound to repay this outlay, yet there must be an express promise to do it on the part of the defendant, before the action should be maintained: and so far from this express promise to repay another person for passage money expected for all, the defendant had before the outlay was made restricted his promise to "giving" passage to the 5 whose terms had expired. But the Court did not think the defendant was morally bound to repay this outlay; and acquiesced in the learned Judge's opinion that the relation of master and servant having been put an end to by the Magistrate's order, the Government had parted with the staff, and could no longer compel the defendant to terms. Still less could the action be maintained against the defendant under his liability as master when the Magistrates had adjudged him no longer to be. Together with the order for rescinding the contract between master and servants, it appeared that the magistrates had made a report to the Governor that they could not do more than discharge the servants: but were of the opinion that in justice and right a free passage to India, with a maintenance and necessaries during the voyage, should be found by the defendant leaving the servants wages to be recovered there. Mr. Justice Field was of opinion that under the Governor's Proclamation of 21st November 1818, which enables Magistrates to make order for payment of so much wages or rations as shall seem reasonable, under £10, the Bench might have done more; and might have compelled the defendant adequately to [?] and clothe his servants till they should be entitled by their agreements to passage home; and that the finding of such passage too might have been compelled by the Governor, at the peril of the defendant's being sent out of the Colony himself. But the Governor could not recover his maintenance and passage-money by paying it for the defendant, and then seeking to recover it back from him in a Civil Court, in an action upon promise, which were not proved: and the learned Judge believed this was the first action of assumpsit ever brought by the Crown in our Court in the World. It was beneath the dignity of the Crown to bring an action upon promises: the Government should have taken a bond from the defendant before these Indians were allowed to settle. The Judge supposed some bond was given in India before the defendant was allowed to bring them into so cold a latitude; and whatever remedy the King might have there upon that bond for the defendants inhumanity here, in this action the verdict must be for the defendant.

Note

[1] This is the Asiatic servants case. When a merchant brought 30 Indian labourers to Sydney to work and the Governor paid their return passage, was the Governor able to recover the cost of the return fare? More broadly, how could the government control the immigration and treatment of such servants? See also Supreme Court of Civil Judicature, Judgment Rolls, 1817-1824, State Records N.S.W., 9/2220 (no. 201).

Published by the Division of Law, Macquarie University