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

Franks v. Ikin (1828) NSW Sel Cas (Dowling) 354; [1828] NSWSupC 49

assumpsit, common money counts, liquor laws, reception of English law, married women's legal disabilities, set off, new trial

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 4 July 1828

Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462

[p. 92]

Issue  whether spirits sold in quantities under 20s at a time can be allowed in the adjustment of accounts between parties even assuming to be matter of agreement  that the spirits are to be considered as a money payment.

 

Friday 4 July 1828

Franks v Ikin

Assumsit to recover the sum of 167£ being the amount of a tavern bill, and with the common money counts.  Plea the general issue, with a notice of sett off for rent due from the Plaintiff to the Defendant.  At the Trial before Stephen J and two Assessors on the 12 June last it appeared in evidence [p. 93] that the Plaintiff kept a Tavern or public house in Sydney and was Tenant to Defendant a Ship wright by trade who occupied the adjoining house both houses being under the same roof and a communication between the two.  The Plaintiff had supplied the Defendant and his wife from time to time with small quantities of spirituous liquors under the amount of 20/s at all times which were partly consumed in the Plaintiffs and partly in the Defendants house.  It further appeared that from time to time the Plaintiff had paid the Defendant small sums of money.  At an adjustment of accounts it was admitted by the Defendants wife that there was a sum of £59.11.8 3/4 due to the Plaintiff and that sum was to go in reduction of the Defendants claim for rent, and as and for payment of so much rent.  In support of the Defendants set off, he proved that there were 3 years & more rent due, and a memorandum of an account was produced shewing that the rent had been agreed for at 70£ per annum.  [p. 94] It was proved that at all events the house was worth 20/s a week without a licence and worth 70£ with an Alehouse licence.  On the part of the Defendant it was objected that the Plaintiff could not recover for the spirituous liquors sold by the Plaintiff to the Defendant, the quantity being less than 20/s at a time and the 22nd. G. 2nd. C. 40. s.12 was relied upon.[1 ]  The learned Judge was however of opinion that the Defendant being a Ships Carpenter he did not come within the operation of the statute it being aimed against tippling by people in low life.  He further ruled that the Defendants wifes admission were to be considered as his Agent.[2 ]

Verdict for the Plaintiff.

£32.5.6.

Wentworth now moved for a new trial first for misdirection on the part of the learned Judge and second that the verdict was against evidence.  As to the first ground he submitted that the learned Judge was error in ruling that the Defendant was not a person within the operation of the tippling act and that the admissions of the Defendants [p. 95] wife would not bind him she not being his agent in such a transaction.  As to the second objection it was proved at all events that there was more rent due to the Defendant, than the amount of the Plaintiffs claim.

S. Stephen contra;  First the Tippling act does not apply to this Colony it being a British excise law and passed for the increase of the revenue of the mother country.  Second; if it does apply to this Colony still the amount of the liquor sold by the Plaintiff to the Defendant under the circumstances must be considered as payments protanto of the rent due by the Plaintiff to the Defendant.  Third the Defendants wife is his agent and it was so put as a question of fact for the Jury and consequently her admissions bind him.  Fourth the whole case was left to the Jury, there being evidence on both sides, their verdict ought not to be disturbed unless manifest injustice appears to have been worked.  The learned Judge expresses himself satisfied with the verdict (NB)  It was stated that there was [p. 96] still a replevin suit depending between the parties.  The present defendant had distrained the Plaintiffs goods for the rent in arrear set off in this action.  The Plaintiff had replevied.  The Defendant avowed for rent in arrear, and the parties were at issue.

Under such circumstances The Court said that they would not give any opinion upon the points raised in argument at present but would order this case to stand over until the replevin suit was determined.

Adjournatur

A new trial was afterwards awarded[3 ]

 

Dowling J., 11 October 1828

Source: Dowling, Proceedings of the Supreme Court of New South Wales 1828-40, Vol. 10, Archives Office of New South Wales, 2/3193

[p. 148]

[see vol. 6 p. 43]

[see vol 12 post p. 123]

[Wentworth moved for a new trial in this case agt. the direction of the Chief Justice.  Cur. adv. vult.]

This was an action of replevin.  The Deft pleaded two pleas, first, no demise, & second, no rent in arrear.  Issue thereon.  At the trial before His Honor the Chief Justice at the sitting in last term, it appeared in evidence, as I collected from the facts reported by the learned Judge and this day, that the Deft Franks kept a public house in Sydney & was tenant to the Plf Ikin, a ship wright by trade, occupying the adjoining house, both tenements being under the same roof, & a communication between the two.  The Deft had supplied the plf & his wife from time to time during the tenancy with small quantities of spirituous liquors under the amount of 20/- at all times.  If further appeared that the Deft had from time to time advanced or lent to the Plf small sums of money at the request of the Plf.  At an adjustment of accounts it was admitted by the Plf or his wife that there was a sum of £59.11.8¾ due to the Deft & that that sum was to go in reduction of the Plfs claim for rent, & as & for [p. 149] a payment of so much rent pro tanto.  In this account was included various items for spirituous liquors sold from time to time under the account of Defs.  On the part of the Plf it was contended that the Defts set off or claim for the spirituous liquors so sold could not be allowed, being contrary to the policy & express words of the 22 G. 2 C. 40 s.12 commonly called the Gin Act.  Upon this point the learned Chief Justice left it to the Assessors a question of fact, whether the account produced was not to be considered as a settlement between the parties, and as an acknowledgement of a payment of so much money on account of rent, His Honor holding that if the assessors so considered it, then the case came within the principle of the decision in the nisi prius case of Dawson v Remnant 6 Esp. 24. where it was held by Mansfield C.J. that where credit is given for the amount of spirits sold in quantities under the value of 20/s in an account between the parties, the items cannot be objected to in an action for the balance.  The assessors were of opinion that the account was settled and that there was an agreement that the items for the spirituous liquors should be set off, and taken [p. 150] as a money payment in reduction of the rent, & found their verdict accordingly.  On this day a motion was made for a new trial on the ground of misdirection, & reliance was placed on the express language of the 12th section of the 22 Geo. C. 40 in which it is enacted "not shall any item in any account for distilled spirituous liquors be allowed where the liquors delivered at one time, & mentioned in such item shall not account to less at the least." and this case was distinguished from Dawson v Remnant, because there the agreement was actually settled, & executed & a final balance settled between the parties; whereas here there was no final ballance [sic] struck between the parties, and the agreement to set off the spirituous liquors was merely executory, & the account left open.  The Court took time to consider of the case.

Having fully & maturely considered this case it is my[4 ] misfortune to differ with His Honor the Chief Justice in his view of the question, & although I entertain the utmost deference & respect for his judgment, yet I am bound to declare my own independent opinion upon the question thus submitted to me as a member of the Court.  Without meaning to impugn the doctrine laid down in Dawson v Remnant, which appears to me to differ from the present case in the particular posited act by Mr Wentworth in the argument, [p. 151] it appears to me that the safest course is to adhere to the express language of the act of Parliament.  After solemn consideration of that statute it was held in the recent case of Brown Mannix[5 ] that the 24 G. 2. C. 40 s. 12 applies to & is in operation in this Colony.  That point being so determined, it appears to me that we are bound by the language of the Statute itself, & ought not to suffer any want of righteousness or of conscience in the party making such an objection to evade the express intention of the legislature.  The 12th section of the statute contains two distinct or divisible provisions, one applicable to the case where an action is brought, & the other where there is an adjustment of accounts between the parties.  The first declares "that no person shall maintain any action for any debt or demand for any spirituous liquors unless such debt has been bononâ fide contracted at one time, to the amount of 20/s or upwards;" then secondly it declares "Nor shall any item in any account for distilled spirituous liquors be allowed, where the liquors delivered at one time, & mentioned in such item, shall not amount to 20/s at the least."  [p. 152]  I construe this second provision to be a distinct and positive prohibition against the allowance in any account of any time for spirituous liquors sold in quantities under 20/s.  Assuming therefore that the evidence in this case, warranted the Assessors in coming to the conclusion, that it was agreed between the parties, that the amount of the liquors sold by the Deft to the plf. was to be considered as a money payment in reduction of the rent due to the Verdict for plf.  Still, I think we ought to adhere to the words of a statute which was passed for the salutary purpose of preventing the pernicious effects of dram drinking, a practice notorious in this Colony, and known to be extremely injurious to the health & morals of the labouring & working classes of society.  In this particular case it was urged that the objection taken by the plf was most unconscientious, and ought not to be permitted to prevail.  I think we ought not to be influenced in our judgement by any such consideration but that we should adhere to the words & spirit of an act so highly beneficial [p. 153] in its intent.  In my judgment the finding of the jury upon the fact, does not take this case out of the operation of the law, which expressly forbids the allowance of any itemin any account for distilled spirituous liquors where the quantity delivered at one time, & mentioned in such item, shall not amount to 20/s at the least.

As I differed in opinion with Forbes C.J. & Stephen inclining to agree with me, this case, at the wish of the latter was postponed until next term.  See post Vol. 12. p. 123.

 

Forbes C.J., Stephen J., Dowling J., 13 December 1828

SourceSydney Gazette, 17 December 1828

An action of replevin was tried some time since, in this Court, wherein Edward Franks and Alexander Ikin, both of Sydney, were plaintiff and defendant.[6 ]  A distress had been made by the defendant, who was owner of the house in which the plaintiff resided, for rent, to which the latter pleaded a set off containing, amongst others, several items for spirituous liquors supplied under the value of 20s. at one time.

On the part of the defendant, it was contended by Counsel, that those items could not be recovered, under the provisions of the Act of Parliament called the Tippling Act, which had been already held to apply to the Colony; whilst, on the other side, it was maintained, that the items so objected to, were to be considered not as a credit given for so much spirits, but as a payment of so much rent, according to an agreement between the parties to that effect.  The Chief Justice, before whom the action was tried, took this latter view of the case, and left it to the Jury to say, whether such was not the state of things, and whether, from the evidence, there had not been a settlement of accounts between the parties, in which the items objected to were included; for, if they were of that opinion, then His Honor thought the plaintiff entitled to a verdict.  The Jury found for the plaintiff, but a rule to shew cause why a new trial should not be granted was subsequently obtained by the defendant's Counsel, and, this morning, the three Judges delivered their opinions seriatim, on the application.

Mr. Justice Dowling, after expressing his regret at being obliged to differ from his learned Brethren on the Bench, in their view of the case, proceeded at considerable length to deliver his judgment on the application.  His Honor was decidedly of opinion that the items could not be recovered, under the provisions of the Act of the 24th Geo. 2, which declared that no item inany account, for the value of 20s. should be recovered, and that a new trial ought therefore to be granted.

The Chief Justice took the same view of the question, as that entertained by him on the trial.  In support of his decision, His Honor relied on the case of Dawson and Barnard, reported in Espinasse, wherein Mansfield, C.J. held a similar doctrine.  The Chief Justice regretted that he should differ from his learned coadjutor, Mr. Justice Dowling, but he thought that the case he had cited, and which was the most recent on the point, was not so strong as that which was then under consideration.

Mr. Justice Stephen entered at some length into a consideration of the policy of the Act of Parliament, called the Tippling Act, and the necessity for its enforcement in this Colony.  His Honor stated, that, previously to the question being mooted in the Supreme Court, and the decision of the Judges on the applicability of the Act to the Colony, he had always been of opinion that it did apply, and had acted on that opinion when he presided as Commissioner of the Court of Requests.  He agreed with the learned Chief Justice, however, in thinking that the case under consideration was not one that properly came under the provisions of that Act.  He also thought it a much stronger case than that of Dawson and Barnard, wherein Chief Justice Mansfield held precisely similar doctrine to that laid down by the learned Judge who tried the case then under consideration.  He looked upon each delivery of spirits in this case, not as a credit given, but as a bona fide payment of so much rent, according to a previous agreement between the parties.  These were questions of fact for the consideration of the Jury.  He was of opinion that they were very properly left for their consideration, and that their verdict having established the state, things could not be disturbed.  His Honor concluded, by expressing his opinion to be in accordance with that of the Chief Justice; namely, that a new trial ought not to be granted.  Rule refused.

 

Forbes C.J., March 1829[7 ]

Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462

[p. 171]

[The Tippling act 22 G2. C. 40. s.12 applies to N.S.W. and a publican cannot recover in an action for items of spirituous liquors sold in less quantities than 20/s at one time.]

 

Franks v Ikin

In this case which stood over from last term, Forbes CJ delivered the judgment of the Court

This was an action of assumsit for 167£ being the amount of a Tavern Bill, with the common money counts the Defendant pleaded the general issue and and [sic] gave notice of set off for rent due to him from the Plaintiff.  At the trial before Stephen J on the 12th June last it was objected that the Plaintiff being a licensed publican could not recover in an action at law by force of the tippling act 22 G2. C. 40. s.12. for a certain portion of his bill, which was for spirituous liquors sold from time to time in quantities less in amount than 20/s.  The learned Judge was of opinion that the Defendant being a Ships Carpenter he did come within the operation of the statute being aimed against tippling by people in low life, and the Plaintiff had a verdict for £32.5.6. including the items objected to by the Defendants counsel[.]  A motion having been [p. 172] made for a new trial on the ground of misdirection in this particular, and the question coming are to be argued,  The [sic] Court was informed that there was another action depending between the same parties in which the like question was involved, the Court ordered the case to stand over for Judgment until that action should be disposed of.  In that action which was replevin Ikin was the Plaintiff and Franks the Defendant[.]  The latter avowed for rent in arrear.  The Plain replied first no demise, and second no rent in arrear.  Upon the latter replication question arose whether spirituous liquors sold by the Defendant to the Plaintiff in quantities less than 20/s at one time could be allowed in account so as to reduce the claim for rent.  The assessors found as a fault [sic] that there had been an agreement between the parties.  That the items for the spirituous liquors should be set off and be taken as a money payment in reduction of the [p. 173] rent claimed by the Plaintiff.  That finding was afterwards brought under the consideration of the Court, and a majority of the Judges were of opinion on the authority of Dawson v Remnant 6 Esp.24. that it was conclusive, and took the case of it of the Statute in question, and Judgment was given for the Defendant in that action.  All the Judges were however of opinion that the Defendant could not have recovered for the spirituous liquors in an action brought by himself for the amount finding their Judgment fettered by the authority of several modern cases decided in the Courts at home.  This opinion therefore decides the question raised in the present action of Franks v Ikin, and therefore the rule nisi obtained in that action for a new trial must be made absolute[.]

Rule absolute

It was afterwards agreed between the parties to discontinue the action; each paying his own costs.  S Stephen for the Plaintiff & Wentworth for Defendant.

Notes

[1 ] On this provision, which prevented recovery of liquor debts for less than 20 shillings at time, see Cullen v. Mannix, September 1825.; Brown v. Mannix, 1828.

There was other litigation between the parties in Franks v. Ikin: see Australian, 10 October 1828 (action for rent, set off by action for money lent and for maintenance of one party and his family).

[2 ] With minor grammatical changes, this is a copy of Dowling, Proceedings of the Supreme Court of New South Wales 1828-40, Vol. 6, Archives Office of New South Wales, 2/3189, pp 43-47.  In the latter, however, this sentence reads: "He further ruled that the Defts wife's admissions were to be considered as his, inasmuch as for this purpose, she must be considered as his agent."

[3 ] The report in Vol. 6, pp 43-47 (2/3189) ends here.

[4 ] This refers to Dowling J., on whose notebooks this report is based.

[5 ] The notebook has a marginal note here: "ante p. 76".

[6 ]      In his Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462, p. 111, Dowling J. recorded this hearing as follows:

"This case stood over for Judgment from last term the Judges differing in opinion on the construction of the Gin Act the Judgment was now prayed by S. Stephen.  I differed in opinion with Forbes CJ. and Stephen J. and began first and delivered my opinion.

"Forbes CJ and Stephen J. were both of opinion that as the Assessors had found as a fact, that the parties had agreed that the account for spirits should go in part payment of the rent the case came within the doctrine of Dawson v Remnant and Judgment was given for the Defendant.

==

"In an action of replevin to which there was an avowry for rent in arrear, and replication of a set off for spirituous liquors sold by plaintiff to Defendant and it was found as a fact that the parties had agreed that the amount of spirits should go in part payment of the rent, Held by Forbes CJ. and Stephen J that the case was not within the Gin Act.  Dowling J. dissentiente."

This is a copy of Dowling, Proceedings of the Supreme Court of New South Wales 1828-40, Vol. 12, pp 123-124 (2/3195), except that the latter ends with the additional sentence, "Judgment for Deft."  At p. 96, Volume 2 of the Select Cases repeated the first part of this statement (before the dashes), though in slightly different terms.

See also Australian, 16 December 1828.  It summarised the view of Dowling J. as follows: "Mr. Justice Dowling being of a different opinion, ruled that the 24 Geo. 2, ch. 4, commonly termed the Tippling Act, had full reference to the particular point at issue, and that as the spirits were delivered in less quantities than 20s. worth at one time, the publican's bill ought not to be allowed."

[7 ] From its position in the Select Cases, it is likely that this decision was made at the end of March, 1829.

Published by the Division of Law, Macquarie University