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

Henry v. Eagar [1821] NSWKR 11; [1821] NSWSupC 11

trover - Tahiti, trade with - missionaries - interference with contract - Privy Council, appeal to

Supreme Court
Field J., 24 August 1821
Source: Sydney Gazette, 25 August 1821[1]

This case occupied the attention of the Court the whole of Tuesday; and this day the following judgement was pronounced by Mr Justice Field.
This is an action of trover for the recovery of the value of 148 casks of pork and 11 of lard, 9 water casks (viz 3 butts and 6 hogsheads), one whale boat, and two swivels; which the defendant forcibly took from the plaintiff, upon turning him out of the mastership of the brig Governor Macquarie, on Sunday the 3rd June last; and the simple question for the Court is whose property all or any of these things were.
It appears by the evidence of Mr Campbell, merchant, that the plaintiff had formerly been master of the Missionary Society's brig Haweis, but refusing to go another voyage in that vessel by reason of certain restrictions imposed by the Directors of that Society, or to wait for the return from New Zealand of their agent here, the Rev. Mr Marsden, he entered into an agreement with the defendant on the 1st December last, by which he promised to obey and fulfil the following instructions, from the defendant as owner, to his as master of the brig Governor Macquarie:
"You will proceed with all possible dispatch to the Society Islands, and upon your arrival there communicate with King Pomare, and inform him that I have brought the brig, and laid in the cargo entirely on his account, and for his benefit; and upon his acceptance of the brig and cargo now on board and proceeding to fill up with a return cargo of pork consigned to me here, you will formally deliver her up to him on the following terms:
"1. That he pays the amount of the account current by a cargo of pork put on board the brig, and consigned to me here, to be sold on his account, and the amount to be applied to the payment of the account. If any surplus, to be accounted for to me.
"2. That the brig shall be kept constantly trading between the islands and the colony, and that I shall act as his agent, to receive and sell on his account, all the pork and other produce he shall send up; and to purchase and transmit to him down, all the merchandise, &c he may want.
"3. That I shall retain a certain share of the brig, either one-third or one-fourth part (as the King chooses) on my own account, and bear the same proportion of profit and loss and expenses."
Together with these instructions to the plaintiff, the defendant wrote the following letter:
"TO KING POMARE,
"Sydney, New South Wales,
"December 1, 1820.
"Sir,
"Mr. Samuel Henry having informed me that you wanted a vessel to be bought and sent down to you, I have accordingly bought and fitted out the brig Governor Macquarie for you, and now send her down under the command of Mr Henry. Mr Henry promised me, you would send me back a full cargo of pork, to be sold in this colony, in order to pay for her, which I am certain you will accordingly do. I have put on board the brig a large quantity of trade for you, as also as much salt as will be sufficient for two cargoes of pork, this and the next, and casks, in order that after filling the brig with her cargo of pork, you may procure oil and arrow-root to send to England, and pork for the next voyage of the brig. I will take down a ship myself in order to take all the oil and arrow-root on the islands to England direct, and, after paying all expenses, to lay out the balance in such articles as you shall direct. I will also act as your agent in this colony, to sell for you all the pork and sugar you may send up here from time to time, and send you back the value in such trade and merchandise as you shall order; and as your agent in England, there to sell all the oil and arrow-root you can send, and buy and send you back such trade, &c. as you may want; and upon your undertaking to procure all the oil and arrow-root on your islands, I will send a ship every year to take it to England; there to sell for you, and bring back all you may want in return. Mr Henry has full instructions from me, and will deliver you the invoices and account of the brig and cargo, and give you every information and explanation. As none of your own subjects understand keeping accounts, I hope you will leave all the accounts and management of the trade, and buying and selling, to Mr Bicknell, as your agent. I have engaged a Mr Scott to go down and make sugar for you; he goes in the brig now; I hope he will succeed; that you will be kind to him; and that he will behave well; and to your satisfaction. You should endeavour to forward the making of sugar as much as possible. And now, King Pomare, as I have bought and sent you down this brig and cargo, and that it has cost me a great deal of money; and seeing that no other person in this colony would do so for you, I hope you will act towards me with the honour and integrity of a King, and will fill the brig with pork as quickly as possible, and send it up to me, in order to repay me the money I have thus expended for you; and that you will always do your utmost to procure pork and sugar to send to this colony, and oil and arrow-root to send to England, for which I will send you in return every thing you shall want for yourself and your subjects. By thus acting you will become a great King; your subjects will become a civilized and happy people, and your islands become valuable dominions. By turning your own attention and that of your subjects to trade you will be able to procure every thing you can want. If you neglect it, you will not be able to get any thing. As I mean to go down to your islands, in the ship that will go for the oil, and arrow-root, I shall have the pleasure of seeing you in person and be able fully to explain all matters with you. Wishing you health and good blessing.
I am, King Pomare,
Your true friend,
EDWARD EGAR"
Dated the next day, the defendant wrote the following private instructions to the plaintiff:
"As it is probable the Hawies will be sent down to the Society Islands to procure pork, not only for the Missionaries, but for trade, I wish you particularly to inform King Pomare that you and I applied to Mr R. Campbell for that purpose; that he refused to give her up; and that he now sends her down in opposition; and that I hope and expect he will not permit any hogs to be sold to her, only what the Missionaries really will have of their own, or bought by them for their private account, and that he will not suffer the Haweis to trade at all, as it will be in opposition to him. I also wish to inform him, as I mean certainly to take down a ship for the oil, that he will not permit either his own oil and arrow-root or the subscription oil and arrow-root, to be put on board any ship, only the ship I take down, as I will take the subscription oil to England, and deliver it in his name to the Missionary Society in London. You will also impress upon him, that it is actually necessary that he permit no vessels to trade to the Islands but his own, the Governor Macquarie, and that I hope and am sure he will always allow the Missionaries to send up to the Colony, in the Macquarie, after this first voyage, all the pork they may have, to a certain tonnage, say ten tons. If the Haweis goes down, let the King not suffer any pork to be put in her, except the Missionaries, and after that let him fill her up with his own pork on freight, taking particular care to send it to me for his use, and to take the Captain's receipt to deliver it to me here; and let the King write me an account of it. I will pay the freight here for it. I also wish the King to send me a letter both in English and Tahitian, under his hand and seal, appointing me his agent here, to act for him in all matters."
The defendant's account current with Pomare charges him £3000 for the brig, £1350 for the salt and casks, £1335 9s for the merchandize, and £204 5s 9d for commission on the whole at £5 per cent making together the sum of £5969 14s 9d. It appears that the merchandize and casks were supplied by the defendant himself; and Mr Campbell and My Jenkins think they are charged at £100 or £150 per cent above the Sydney market prices, and that £50 per cent. Would have been reasonable profit to cover this risque, which it appears also from another part of the defendant's instructions to the plaintiff was intended to be insured. Mr Campbell says that 12 guineas per cent might have been added for assurances; and both witnesses agree that it is not the custom of a factor to charge his principal more than he actually pays for goods purchased he has his commission, interest, &c. Here the defendant charges £150 per cent. Profit, and commission besides. But the plaintiff does not dispute payment for the casks and goods even at these prices; and the only question is, whether Pomare accepted the brig as well as the cargo, and filled her up with a return cargo of pork consigned to the defendant, which (according to the defendant's instructions to the plaintiff) were the conditions, upon which the King was to have the brig formally delivered up to him. It is not pretended that there was any formal delivery by the plaintiff to Pomare; but the defendant contends that the brig was actually taken to by Pomare, and that therefore the return cargo was virtually consigned to him. So, although the debt (taking it as high as the defendant sets it) is only £5960 14s 9d for brig and outward cargo, and this return cargo is worth £4000, the defendant takes forcible possession of both brig and cargo, goes on board on Sunday with three men, and, himself armed with a piece of an oar, and the men with hand spikes, turns the plaintiff out of the brig. But let us see in the first place whether Pomare had, by complying with the defendant's conditions, accepted the brig, because if he had, it may follow in equity that the defendant has a right to the possession of both brig and cargo till the purchase is completed; and the ship transferred according to the Registry Acts. It would seem from the evidence of the then mate of the vessel, that the plaintiff always told him that the King had accepted both brig and cargo, that the King was very well satisfied with both, and agreeable to every thing, and that the return cargo was for the defendant to pay for the vessel. But the Court will bear in mind that this witness is now under the influence of the defendant himself, having since gone to sea as master of the vessel. From the evidence of Mr Marsden and Mr Campbell, it appears that the plaintiff, as soon as he arrived in this port, said that Pomare was not satisfied with the process of the goods: the plaintiff said nothing about Pomare's accepting the vessel: Mr Marsden considered that the King had not accepted it, and therefore said nothing about the price of the vessel, when he advised the plaintiff to pay the full amount of the defendant's bill for the goods and casks. The object of Mr Marsden's interference was to prevent the Missionaries from being deprived of all means of procuring comforts and necessaries. Pomare had made it transportation for any body to purchase a hog but himself, in his greediness for gain. Mr Marsden wished to prevent the repetition of such a monopolous voyage. But we have better evidence than the verbal testimony of what the plaintiff said Pomare did. We have Pomare's own acts. There is no doubt that he accepted the cargo; but upon what conditions did the defendant instruct the plaintiff to deliver up the brig to the King? Upon his mere acceptance of the Cargo? No, upon his acceptance of the brig also, and upon his filling her up with a return cargo of pork consigned to the defendant. There is no unequivocal proof of Pomare's actual acceptance of the brig, and there is no pretence that there was any delivery of it to him, formal or otherwise. But even if there were any acceptance, there must be more than that, before the brig could be delivered by the plaintiff as the defendant's agent to Pomare. There must be the filling her up with a return cargo of pork consigned to the defendant. Now was this return cargo of pork consigned by Pomare to the defendant? On the 7th April Pomare writes and delivers the following power of attorney to the plaintiff:
"This is my desire with you, Mr S. Henry; with you alone is the business of the property which I convey to Port Jackson in the ship: the whole business is with you, and you only; and also any other country to which it may be my pleasure to send you. Don't suffer any person to trouble you by interfering with the business of the vessel. Suffer no one to trouble you with my concerns, Mr S. Henry. The business of the vessel is entirely with you. This is my desire. This also I have to say to you, that this is my seal. Given by me this 7th day of April, 1821. "Pomare." (L.S)
"To Mr S Henry."
Together with this instrument, the King addressed the following letter to the plaintiff:
"Sir,
"Health and peace to you. Proceed with all expedition over the seas to the country to which you are bound. Do not stop at any place as you proceed. Go direct to Port Jackson. Barter when you get there for guns. They are useful things. Do not let them be bad. Let them be good. Purchase some large guns. It is bad thing for vessels to touch at lands without them. Let the large guns be for the use of the vessel. This also I have to say to you; barter for useful things. This is my address to you. I have no more to say to you on this, but proceed with all possible dispatch towards the place to which you are bound.
Health and peace to you through Jesus Christ.
"To Capt. Henry, "Pomare"
"P.R. "Brig Governor Macquarie."
These documents were translated, and the originals proved to be of Pomare's hand-writing, by Mr Eyre, who taught the King to write; and even if the Court should be of opinion that they amount to an acceptance of the ship, and not to the mere confiding of the whole matter to the plaintiff, as the only friend and agent of an artless savage; still they are a clear consignment of the cargo to the plaintiff, to barter for him, and not to the defendant; and therefore one of the conditions, upon which the brig was to become Pomare's, not being performed, the brig is still the defendant's and not his. It is not pretended that the terms, upon which Pomare was to pay the defendant for the brig, were ever entered upon. If Pomare had actually accepted the brig, he would have chosen whether the defendant was to retain a third or a fourth part of her. The defendant does not pretend that the King went this length; and it seems from these documents, that whereas the defendant was promised by the plaintiff that Pomare would send him back a full cargo of pork, which he (the defendant) was certain the King would perform, whereas the defendant hoped he would send it up to him, whereas he offered to act as his agent in this colony to sell for the King all the pork, and whereas the King to send him a letter both in English and Tahitian, under his hand and seal, appointing him his agent here to act for him in all matters, yet the King did not think proper, upon better advice, to perform the plaintiff's promise in his name; he frustrated Mr Eagar's hope that he would send the pork to him; he refused Mr Eagar's offer to act as his agent in the colony to sell for the King all his pork; and he declined complying with Mr Eagar's wish, that he would send him a letter both in English and Tahitian, under his hand and seal, appointing him his agent here to act for him in all matters; but, on the contrary, he consigned the pork to the plaintiff as his agent, and gave him the letter under his hand and seal.
But the defendant contends, in the second place, that the plaintiff was his agent, and engaged to obey his instructions, and that if he could not get Pomare to accept the ship, he should have referred to certain after instructions, which the defendant gave him, and there he would have read as follows:
"If the King declines taking the brig and cargo, you will in that case, with the trade you have, use every exertion to procure a cargo of pork on my account, and return to this port with it."
Although the plaintiff did not sign that he would obey these after instructions, as he did the instructions, yet they are perhaps equally binding upon the plaintiff, and he may be liable to answer the defendant in damages for contravening them; but since in fact he did contravene them, and attorned (or changed his agency) to Pomare, Pomare, who is the real plaintiff in this cause, cannot, by the defendant's taking the law into his own hands, be deprived of his legal rights, and if the Court shall be of opinion that Mr Henry possessed this cargo as agent to Pomare, and not as agent to Mr Eagar, then will Mr Henry be entitles to recover for Pomare the value of the cargo, which Mr Eagar has thus wrongfully seized, deduction the price of the outward cargo and the freight of the homeward; and Mr Eagar must be left to bring his action against Mr Henry for this breach of agency to him, to which Pomare was no party, and for which he ought not to suffer; for Mr Henry was the early and only friend of Pomare, and how did this poor ignorant savage Chief know how incompatible Mr Henry's agency for him might be with that to Mr Eagar? Or if he did, Mr Henry took upon himself to answer to Mr Eagar for that; and let Mr Eagar bring his action against him; But in this action Mr Henry sues as agent for Pomare, and if this cargo was Pomare's, not consigned to Mr Eagar but expressly consigned to Mr Henry to barter with for the King, then Mr Eagar cannot keep what he has wrongfully taken, but the plaintiff in this action will be entitled to recover the value of it, deducting what his principal, Pomare, owes to the defendant. It is proved that the plaintiff might have sold the pork to Government at 7d per lb; that the whale boat is worth 30 guineas; that the pork casks are worth £135 5s; the water casks £13 10s; the lard 6(?)d per lb; and the swivels £2. There is no pretence for the defendant's taking the whale boat, water casks, and swivels: they were put on board as Pomare's private property. It is for the Court to say whether they will allow the defendant to deduct all the high prices, at which he invoices his goods and casks, and whether they will allow him commission upon his own supplies. The plaintiff, as Pomare's agent, will be entitled to a verdict for the difference between the value of the pork, lard casks, boat and swivels, and is due to the defendant, for the outward cargo, and the freight of the homeward; and I am of opinion, that as the defendant refused to demand freight for the homeward cargo, it was not incumbent upon the plaintiff to tender and specific sum for freight, before he could lawfully demand the goods for which this action is brought.
The Court allowed the defendant the full amount of his charges for the goods and casks; but disallowed the commission; and taking the homeward freight at £525, the plaintiff had a verdict for £1208 6s 6d balance.

Note

[1] This spectacular case concerned trade between a former convict, Edward Eagar and King Pomare of Tahiti. The missionaries, particularly the Reverend Samuel Marsden, disapproved of such trade and tried to prevent it. Ultimately, the convict won the action, which went all the way to the Privy Council in London. The Privy Council decision is online as Eagar v. Henry, 1827.

We thank Ron Hulme for transcribing the Sydney Gazette report.

For the original record of the Court of Appeal, see Minute Books (Court of Appeals), 16 June 1817-20 April 1824, State Records N.S.W., 4/6604 at 56-57, 65-70, 73-74. That record is included in the Privy Council papers online.

See B. Kercher, "Unreported Privy Council Appeals from the Australian Colonies before 1850" (2003) 77 Australian Law Journal 309-316.

Published by the Division of Law, Macquarie University