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

Thompson v. Baxter [1827] NSWSupC 14

promissory note - piracy - passenger on ship - damages, assessment of

Supreme Court of New South Wales

Stephen J., 7 March 1827

Source: Sydney Gazette, 10 March 1827


Mr. GARLING stated the plaintiff's case. --- This was an action on a promissory note, to recover the sum of £50.  It appeared that the defendant was master of the schooner Brisbane, which was seized by the Government at Van Diemen's Land, together with her stores and every thing on board, on account of some infraction of the maritime regulations of that Colony.  The plaintiff was, at that time, master of the brig Lord Rodney, then lying at Port Dalrymple, and the defendant, being anxious to get to Sydney, engaged a passage for himself, a person named Smith, and a New Zealand boy, for which he gave the note upon which the action was brought.  Mr. Garling handed in the note, but called no witnesses.

Mr. W. C. WENTWORTH, for the defendant disputed the consideration given for the note.  The defendant, as had been stated, by the Counsel for the plaintiff, was anxious to get to Sydney after the seizure of his vessel, and engaged with the plaintiff for his own passage, together with that of his mate, and a New Zealand boy, for which he was to pay £40.  Afterwards, upon further conversation with the plaintiff, he agreed to give £10 more, on condition of being provided with fresh provisions, porter, and other good things throughout the voyage, and accordingly gave his note for £50.  The plaintiff, however, only laid in one pair of fowls, for the extra £10, which were eaten before the brig cleared the heads; leaving nothing during the remainder of the voyage but salt pork; and having sent a boat on shore to procure some necessaries, in which was his second mate and the New Zealand boy, whose passage was part of the consideration to be given for the note, a breeze sprung up in the mean time, and he, being in a state of intoxication, immediately put to sea, leaving the New Zealand boy, who was afterwards obliged to work his passage up, in the Governor Philip, together with the second mate, behind, notwithstanding every remonstrance to the contrary.  Mr. Wentworth called witnesses in support of his case, and contended that the plaintiff not having performed the conditions on which the note was given, was not entitled to recover the full amount.

Mr. JUSTICE STEPHEN observed, that the defendant had placed himself in an awkward predicament, still it was in the power of a court of law, when the whole equity of the case was let in, to controul the plaintiff, and to see that he did not receive more than he was justly entitled to.  It appeared that the bill was given in consideration of a particular act to be done, and it was not obligatory on the Jury to award the full amount, or any more than appeared to be equitably due.  It appeared, from the evidence, that the agreement for the passage of the three persons was £40, and that the extra £10 was given on consideration of having fresh provisions.  It was also clear, from the testimony brought forward, that the condition, as regarded one of the parties, the New Zealander, had not been performed, nor had the plaintiff proved that he gave any consideration for that part of the bill.  Allowing, then, £40 for the passage of the three persons, a proportion should be deducted for the passage of the New Zealander; and, as for the extra £10, if the Jury were of opinion that one pair of fowls was sufficient consideration for that sum, they would award it to the plaintiff. --- Verdict for the plaintiff, £30, sterling.

Published by the Division of Law, Macquarie University