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

Eagar v. Terry [1828] NSWSupC 19

assumpsit , common money counts, Statute of Frauds, conveyancing, Sheriff's officers

Supreme Court of New South Wales

Stephen J., 20 March 1828

Source: Sydney Gazette, 24 March 1828

This was an action of assumpsit brought by the plaintiff, Mr. Edward Eagar, against the defendant, Mr. Samuel Terry, to recover certain monies received by him for and on behalf of the plaintiff.  The declaration contained the usual money counts.  The circumstances of the case were briefly these: - It appeared that a man, named Nowlan, now deceased, was, some years ago, the owner of a certain farm, which, in the course of some dealings between the parties, became mortgaged to the defendant.  The plaintiff, Mr. Eagar, was, at that time, the defendant's lawyer, and prepared the deed between the mortgager and mortgagee.  Some time after, however, the plaintiff, who, to his profession of a lawyer in those days, added the somewhat anomalous avocations of merchant and Deputy Provost Marshal, also obtained, in consequence of some transactions between them, a lien on Nowlan's farm, and by some means, which did not appear, secured a priority of judgement, foreclosed his mortgage, levied execution, and, in his capacity of Deputy Provost Marshal, sold off the property, and became himself the purchaser; some irregularity on Mr. Terry's deed of mortgage, drawn by the plaintiff himself, thus enabling him to step in before the defendant.  Mr. Terry's claim on the farm, now became the property of Eagar, still remained unsatisfied, and he resorted to measures to obtain a settlement.  The negotiation for this purpose continued for some time on foot, until at length the plaintiff was preparing to depart the Colony for England.  Mr. Terry then became imperative in his demand for a settlement, and flatly told Eagar he should not go away till it was effected.  Eagar then produced an account current between him and the defendant, in which the former was brought in indebted to the latter, including the mortgage on the farm, somewhere about 260 odd pounds.  To liquidate this claim, it was proposed to the defendant that he should take the farm at three hundred pounds, paying the difference over to the agent of the plaintiff.  This arrangement was at first refused by Mr. Terry, but finding he was not likely to get his money in any other way, he at length consented to the proposed terms, and, on the very day that Eagar embarked for England, he left directions with his then agent, Mr. Francis Ewin Forbes, to put Mr. Terry in possession of the farm.  Mr. Forbes accordingly wrote to the tenant then in the occupation of the farm, directing him, in future, to pay his rent of £10 a year to Mr. Terry, and which he has since received.  On the part of the plaintiff it was contended by Mr. Wentworth, first, that the defendant had no title whatever to the farm; inasmuch as the mere parole assignment by Forbes, as the agent of the plaintiff, did not come within the provision of the statute of frauds, and was therefore null and void.  And, secondly, that the condition on which the property was made over to the defendant, namely, the payment of the balance of £34 odd, which was a condition precedent, had not been fulfilled.  On behalf of the defendant, it was urged by Mr. Norton that the defendant's title was not the point at issue, together with which evidence was produced to shew that the balance had been paid in goods furnished to the plaintiff, and the sum of one hundred dollars paid to his wife subsequently.  Mr. Wentworth, in reply, urged his view of the law of the case, and submitted that, if the payment shewn to have been made by the defendant were held to apply to the issue before the Court, that they were not made till two years subsequently to Mr. Terry having possession of the farm, and that, at all events, the plaintiff was entitled to recover the amount of rent recovered by the defendant up to that time.

Mr. Justice Stephen, in summing up, told the Assessors that the question for their consideration in this case, was not the defendant's right of possession, as that should be tried under another form of action.  The only subject for their enquiry at present was, whether from all the circumstances of the case, as they, had been detailed in evidence, there was any thing to shew that the defendant had received any sums of money for the use and benefit of the plaintiff, and for whinh [sic] he was entitled to be accountable to him.  The Assessors, without hesitation, found a verdict for the defendant.

Published by the Division of Law, Macquarie University