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

Hall v Hely [1830] NSWSupC 18; sub nom. Hall v Hely (No 1) (1830) NSW Sel Cas (Dowling) 570

convict service, withdrawal of, press freedom, trial by jury, Crown debt recovery, Law of Extents

Supreme Court of New South Wales

Dowling J., 17 March 1830

Source: Australian, l9 March l830[1 ]

JURY TRIAL.

ANOTHER CASE OF ILLEGAL CAPTURE.

SUPREME COURT.  WEDNESDAY.

Hall v. Hely.

Mr. Justice Dowling having taken his seat at ten A. M. and the Special Jury of the previous day being called over,

Mr. Keith, on the part of the plaintiff moved, that he be allowed to come up from the Sydney Gaol,[2 ] as it was necessary to the case then about to come on, that he should be present during its adjudication.

Mr. Justice Dowling observed, he could exercise no jurisdiction in the case.  The gentlemen who composed the Special Panel on that day previously being then called over one by one, and having entered the box, were objected to by

Dr. Wardell, who challenged the whole array, on the ground that this action being mainly similar to that tried the day before it was not competent to the same Jury to try both, and this was the identical Jury, with one exception.  Dr. W. therefore prayed a tales, which

Mr. Wentworth for the plaintiff agreeing to

Dr. Wardell added to his former objection that the Special Jury had not been framed according to Act of Council,[3 ] in such care made and provided, and he would, therefore, on that ground alone demand another Jury.

Mr. Justice Dowling felt the Court was bound by the Sheriff's return to the venire; if Sheriff or Magistrates had neglected adhering to their duty and instructions they were amenable to the Court, but any such informality should not disqualify the Jury.  The tales being agreed to, the following gentlemen were severally called, and sworn in the Jury box; viz.

Mr.F. Mitchell   Mr.Farmer

Pritchett Connell

Marsden Bell

D. Cooper Foster

WilsonGrose, and

KingG. Paul.

Counsel for the plaintiff Mr. Wentworth, Solicitor Mr. Keith; for the defendant, Dr. Wardell and Messrs. Therry and Foster  Damages 300l.  Two Jurors were fined for absence by the Judge in l0l. each, but subsequently on explanation, the fine of one was remitted.

Mr. Keith having stated this to be in action of trespass brought against the defendant, who is Principal Superintendent of Convicts at Sydney, for taking, or causing to be taken away from plaintiff's employment his assigned servant, one Peter Tyler and detaining Tyler for a certain period, unlawfully,  and having stated in substance the various counts of the declaration,

Mr. W. C. Wentworth followed in his usual clear, forcible, and able manner, explaining the nature and bearings of the case which he was prepared to prove incontestibly, on evidence, and concluded by calling witnesses.  The principal evidence in this case was the assigned servant Peter Tyler, who deposed nearly as follows:

I am an assigned servant to Mr. E. S. Hall, Editor of the Sydney Monitor; I have been four years in Mr. Hall's service come May; previous to the 12th March nobody told me to deliver myself up at the Barracks; the reason I gave myself up was in consequence of these letters; I cannot say I ever read the letters; I think I saw one; I delivered myself for fear I should get in trouble; I saw Mr. Hely, and told him my name was Tyler; that I understood I was wanted by Government, and that I gave myself up; he asked me if I was brought up, and I replied I came by myself; I was not allowed to go out of Barracks for three or four days I returned to my master on the 25th; on the 5th April, Sunday, while standing at the Monitor Office, I ran in, shutting the door they came up and knocked; finding I could not get away without being taken, I gave myself up to Collins was by him taken to the Barracks; I did not hear Lackey call to me; there was nobody but a lad at the gate, to whom I gave the key; on the Monday morning I say Mr. Hely; he called me to him, and reprimanded me for leaving the Barracks; I told him I did not know what to do; he told me I ought to have known better; I showed him a note from Mr. Hall; taking the blame from me for leaving the Barracks; I was taken to the Police Office about six o'clock the same evening; on the following Thursday I was sent to Parramatta and eventually to Bathurst, where I remained about twelve weeks, employed by Government in the bush; I was foreman in Mr. Hall's office; I am a printer by trade; this is a number of the Sydney Gazette, dated Tuesday, March 4, 1829; this is a number of the Sydney Monitor, April 4, 1829; it is headed April Fool Day; some boys assisted me in the printing office; they could not have conducted the Paper themselves.

William O'Neil, clerk in the Monitor Office, where he was also in March and Apri1 1829, deposed that Tyler was a skilful compositor; that a delay took place in the publication of the Monitor for the want of Tyler and that plaintiff was obliged to employ in his place an indifferent compositor, to whom he paid 30s. or £1 15s. a week.  Heard great complaints of irregularity after Tyler was taken  some of the subscribers gave up the paper from that cause.

The plaintiff's case having closed, Dr. Wardell addressed the Jury, but called no witnesses; the learned Judge then summed up, and the Jury after a short absence returned a verdict for the PLAINTIFF  DAMAGES £25 AND COSTS.

 

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

[p. 305]

[By the 9 G 3. C.83. s.9. the Governor has no authority to cancel the assignment of a Convict Servant except for the purpose of granting a remission of his sentence and therefore where the superintendent of Convicts took away the Plaintiffs servant by the Governors orders held that an action would be against the Superintendent.]

Hall v Hely

Trespass.  Declaration states that on 12th March 1829 at Sydney Defendant made an assault upon one Peter Tyler being an offender, duly assigned by the Governor of the said Colony for the time then being to Plaintiff and then &c seized taken and carried away Peter Tyler from Plaintiff being of the value of £300 and forcibly and unlawfully kept and detained Peter Tyler from and out Plaintiffs service without licence or consent and against the will of Plaintiff and converted and disposed him to his own use.

2nd Count.  That Peter Tyler assigned Servant was taken away without the assent of Govt.

3  General Servant of Prisoner.

4  2nd assault on 5 April being an offender duly assigned by the Governor

5  Sent without Governor

[p. 306]

6  General servant

loss from 5 of April up to return of Tyler in service.  General Issue.

Keith opens pleadings

Wentworth

Plaintiff Hall well known Defendant well known

On two several days to divest Mr Hall of the person and services

5  G4 Transportation

9S.9G4.C.8.

 

Forbes C.J., Stephen and Dowling JJ, 1 September 1830

Source: Dowling, Proceedings of the Supreme Court, Vol. 43, Archives Office of N.S.W., 2/3231

[p. 162]

[The Court will not on mere motion review an opinion delivered in a case already decided without being brought before it in due form.]

Wednesday 1st Sept 1830

In Banco

Forbes CJ

CoramStephen J

Dowling J

Hall v Hely Hayes v Hely

At the sitting of the Court this morning.

Baxter Att General rose and addressed the Court to the following effect.  "I am instructed by the Executive Government to request your Honors to revise an opinion delivered by your Honors (Vide Jane News Case Vol 15 p.93, 19. p.1) with regard to the Governor's power of revoking the assignment of Government servants.  Having given an opinion to a certain extent on this point in two cases it will be desirable that you should again revise that opinion; and I have now to move that in the case of the two servants removed from Mr Hall and Mr Hayes.  Your Honors will reconsider the opinion given or supposed to have been given.

[p. 163] As to the Governor's power of revoking assignments of Convict Servants under the 9 G 4.c.83 s.9. whether from my misapprehension or from general misapprehension, I shall not pretend to say, but it is understood that Your Honor's give a distinct opinion upon this important subject, in both those cases.  If this be so it appears clearly that to a certain extent, a difference of opinion has existed between the Bench here and the legal authorities at home upon the point.  I hope Your Honor's will not suppose that I would in anyway attempt to say anything disrespectful to the Bench, but as there seems to have been a misconception, or misapprehension on the part of the Executive Officers of the decision of this Court, I have again, respectfully to request Your Honor's reconsideration of the subject.  It will be for Your Honor's to determine whether such a motion can be made.  If it may be I beg to make it in the most respectful manner, as all opinions are fallible even those of the highest authority.  It appears that the home government have a different idea from Your Honor's with regard to the power of revoking assignments, & therefore [p. 164] your Honor's will probably take an opportunity of reconsidering your opinion.  I may remark that although it appears from the Circular Letter sent by the Governor to the Magistrates upon this subject; that the power of revocation is to a certain degree vested in the Governor, yet their circular is issued for amicable purposes.  I believe that the Court in delivering its opinion looked to the general law of the country in the interpretation of the act of Parliament in question; without confining itself to the construction of the power given of cancelling the assignments of servants under the 9th Section.  It is acknowledged that this is a vital question with regard to the interests of the Colonists, & it is desirable that the point should be finally determined for the purpose of guiding the Executive Government as to the manner in which the power is to be exercised. With these observations I beg to move that your Honors will reconsider the opinion you have given, & at the same time that you will be pleased to state, for the guidance of the executive whether it is what for the conclusion at which, on more mature consideration, you may arrive on this [p. 165] momentous subject to the Colony. 

Stephen J.  I never heard of such a motion as this.  Can we reconsider any opinion formerly delivered by us upon a case was determined & disposed of unless by a regular appeal, or upon a rehearing in a formal and substantive manner, where parties on both sides can be heard?  Certainly in the time of Lord Cohen cases used to be suggested, & points mooted & determined by resolution without formal words.  This was in the early times of the law, but that practice has long since been disused.  In modern times the practice has been very different.  If the opinion of this Court is sought to be reconsidered, the question must be put into some tangible shape, before it can apply its attention to the subject.  If there is any person aggrieved by our decision there is a mode of appealing.  We cannot consider a case not regularly before us.

Forbes CJ. - Mr. Attorney General - I for one (and I believe my learned Brethren go along with me in this sentiment) must say that I should be most anxious in any case in which I should have been led into an error in judgements, to correct that error.  [p. 166]  In the present case however, I am bound to state, that the form in which you make this application, the course is irregular in itself, that it is not in a shape to pronounce any opinion, or to revise any determination upon the matter in question.  There must be some matter regularly depending before the Court, before one can be called upon to service any former decision, supposed to be erroneous.  The question alluded to is one of the deepest importance to this colony, and it is one on which I shall never be brought to confess any opinion again, unless it is brought before the Court in some [?] form of proceeding, in order that my opinion may become a judicial opinion, and not a mere obiter dictum.  With respect the cases of Mr. Hayes and Mr. Hall's servants, I venture to say that in those two cases this Court pronounced an opinion as to the Governor's power of cancelling assignments.  These cases came before me, and in neither of them could the question be raised, inasmuch [p. 167] as the form of the pleadings, prevented the question from being brought under consideration.

Dowling J.  I also think that this is a very irregular application, and quite out of course.  We are called upon to review an opinion supposed to be pronounced in the two cases, now long since disposed of.  If there was any thing wrong in those cases, the time is gone by for setting the matter right.  I know of no case in which the question as to the Governor's power of cancelling as assignments under the 9th Geo. 4. C. 83. 1. 9. could have been raised, but the case of Jane New.  In that case the Court was urged & prepared by the Attorney & Solicitor General to take the question into reconsideration and intimate our opinion upon it for the guidance of the executive government.  There was another point upon which the case might have been disposed of, but being so urged and pressed the Court was reluctantly induced to consider the question [p. 168] and we then strongly intimated what our opinion would be in the case if the question was brought before the Court in a more distinct and independent shape.  Since then I am not aware of any case in which the question has been raised.  In the case of Hall v Hely tried before myself, the question might have been raised, had the deft pleaded specially; but he confined himself merely to the plea of the general issue, denying the facts of taking away the plf's servant.  That being found against him, the case resolved itself into a mere question of damages.  But in that very case, I distinctly notified, that if it was [?] I would save the point in debits just as though it was not raised by the pleadings, intimating also, that if the Court should adhere upon further assignment to its first impressions, the case might be appealed home [p. 169] and submitted to the King in Council.  This suggestion however, was not adopted, & the deft did not afterwards seek to disturb the verdict.  It appears to me therefore, that even supposing the present application were regular & informal, the time has elapsed, and we have no authority to compel the plf to waive the proceeding, or make him a party to the object of this application.

Here the matter dropped.

 

 

Forbes C.J., Stephen and Dowling JJ, 1 September 1830

Source: Sydney Gazette, 2 September 1830[4 ]

Yesterday being the first day of term, the Judges sat In Banco, to hear motions.

The Attorney General rose and stated that he was instructed by the Executive Government of this Colony, to move that their Honors would be pleased to revise an opinion delivered by the Court, respecting the 8th sec. of the 9 Geo. 4th, with regard to the Governor's power to revoke the assignment of convict servants.  The opinion to which he alluded, was in reference to the  two cases, Hall against Heley, and Hayes against Heley.  The subject being one of such vital importance to the interests of the Colonists, and as, whether from misapprehension of the purport of the decision in those cases, or from some other cause, a difference of opinion appeared to prevail between the law authorities in England to whom the matter had been submitted, and the Bench here, he was instructed to request that the Court would revise the decision which it had already pronounced, with a view to finally setting at rest a matter of such very great importance in every point of view.  The learned gentleman hoped their Honors would not suppose that he intended to mean any thing else than to be most respectful to the Bench; but, as he had already observed, a misapprehension evidently existing in the minds of the Executive Authorities, with respect to the subject which he was again desirous of bringing under the consideration of the Court, and as all opinions were in some respect falliable, he had most respectfully to move that their Honors would be pleased to reconsider the opinion which they had delivered, and, at the same time, that they would be pleased to state, for the guidance of the government, what further conclusion at which, on more mature deliberation, they might arrive.

Mr. Justice Stephen enquired what appeared upon the records of the Court to make the Attorney General's a regular motion?  Who had been aggrieved, there was a mode of appealing; but if so, the party should be known.  He knew of no precedent for the motion in modern times.

The Chief Justice said, that he, for one, and he was sure he could justly say as much for his learned brethren, was most anxious, whenever he had committed an error, to correct it.  At the same time, he was bound to state, that the form of the present application was wholly irregular.  It was not in a shape to call upon the Court to revise its decision; there was no matter pending before the Court, and the application, therefore, was one which could not be attended to.  This was said to be a question of the utmost importance to the Colony, and he admitted that it was so; but it should, therefore, be brought forward in some serious form, which would enable the Court to come to a solemn adjudication upon it.  With respect to the particular cases alluded to by the Attorney General, namely, Hall against Hely, and Hayes against Hely, His Honor presided at one of those trials, and the question now brought forward, regarding the Governor's right to revoke assignments, never was raised, and no opinion whatever was given by him upon it.  He was of opinion that the present motion was altogether irregular, and such as the Court could not entertain.

Mr. Justice Dowling was also of opinion that the motion was irregular.  His Honor had tried one of the cases alluded to by the Attorney General, he forgot which, and he most solemnly denied that he had given any opinion as to the effect of the 8th sec. of the 9th Geo. IV; although he put it to the Counsel on both sides to make their election, if they chose to have that question, as it might then be fairly raised, finally adjudicated.  This was declined, and so far only was there any allusion whatever to the subject.  There was no special plea, no reliance on the Governor's power to take away a servant, but a simple denial of the trespass complained of, and an address to the Jury in mitigation of damages.  In the case of Jane New, the subject had been accidentally mooted; and, on the ground of its great importance, the Attorney and Solicitor Generals had invoked the Court to pronounce an opinion upon it for the guidance of the Executive Government, which no other consideration would have induced it to do.  In giving that opinion his Honor agreed with his learned colleagues in what appeared to them to be the general interpretation of the law, and what would probably be their decision whenever the question was formally brought before the Court for adjudication; but he denied that it had ever been otherwise raised.  The present application, however, was not in such a tangible shape that the court could entertain it, there was no proceeding pending before the court, and he, therefore, agreed with their Honors, that the motion was irregular.

Hall v. Rossi, Esq. and Others[5 ]

Hall v. Hely, Esq.

In these cases, which were actions brought against the defendants, who are ministerial officers of the government, for acts done in the performance of their duties, Mr. W. H. Moore moved, on behalf of the Crown, that the plaintiff's attorney should be directed to file taxed bills of costs, which, as the amount of the judgments were paid by the Government, were required as vouchers.

The plaintiff's attorney opposed the motion, on the ground that, in the cases alluded to, he knew nothing of the Government, he knew only the defendants, Rossi and Heley.   This was the first time that he knew of the Government having any thing to do with these cases.  The defendants need not have paid the bills if they chosed, until they were filed; but to prevent the execution they had voluntarily came forward and paid the verdicts and costs.  He should like to know for what purpose these bills were required.

Mr. Justice Stephen. - It is stated that they are wanted as vouchers.

The Court granted a rule nisi.

 

 

Forbes C.J., Stephen and Dowling JJ, 4 September 1830

Source: Sydney Gazette, 7 September 1830[6 ]

 

Hall v. Hely.

Hayes v. Same.[7 ]

In these cases, a rule nisi calling on the plaintiff's Attorney to show cause why he should not be ordered to file taxed bills of costs, had been granted on a previous day.

Mr. W. H. Moore now moved that the rule be made absolute.

The plaintiff's Attorney, in shewing cause against the motion, stated that he understood, at the time the rule nisi was applied for, that Mr. Moore appeared on behalf of the Crown, who was no party whatever to the record in these cases.  He, therefore, before he proceeded to assign any reasons for not acceding to the motion, wished to be informed, whether he was correct in stating that the rule had been obtained on the part of the Crown, and not on the part of the defendants?  If so, then he contended that he was not bound to file taxed bills at the call of the Crown, of which he knew nothing in these cases.  If the Crown had the power of calling on him to file taxed bills in cases to which it was no party, it had the power of making similar calls on the whole profession; besides, if the court made the order, and he refused to comply, he should like to know what power it had to compel him?

Mr. Justice Stephen did not see how the Crown could be made a party to this motion.  If it really was a party to the cases in question then the Crown paid no costs.

Mr. Moore said, in mentioning the Crown he merely meant to explain the purpose for which the bills were required, namely, as vouchers; the Crown having paid the amount of the judgments obtained against the defendants, they being ministerial officers of the Government, by whom he had been directed to defend the actions.  It was no consequence who he received his instructions from, but he appeared as attorney for the defendants, who should have been furnished with bills had not the amount of the verdicts and costs been paid to prevent execution from issuing.

The Chief Justice enquired what objection there could be to file the bills.

The Attorney for the plaintiff complained of want of courtesy on the part of the defendants, when written to on the subject of the verdicts obtained against them; and also put it to the court whether, after a lapse of six months, when the amount of the verdicts and costs had been paid to prevent execution issuing, and when, in consequence, no record of judgment being necessary, no such record had been entered, he could now be called upon to file bills.

The Chief Justice. - We are of opinion that no sufficient reason has been given why the bills of costs should not be filed. - Rule absolute.

 

Notes

[1 ] This case was sparked by the governor's decision to withdraw convict labour from the newspapers which criticised him, the Monitor and the Australian.  See also Hayes v. Hely, 1830; Hall v. Scott, 1830; R. v. Mansfield (No. 2), 1830; In re Jane New, 1829; In re Tyler, 1830; In re Hayes, 1829; and see Sydney Gazette, 2 September 1830; Australian, 3 September 1830 (Macpherson v. Hely).  For commentary, see Australian, 10 September 1830; and for historical analysis, C.H. Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, chs 31, 35; R.B. Walker, The Newspaper Press in New South Wales, 1803-1920, Sydney University Press, Sydney, 1976, pp 16-17.

Governor Darling reported this case to Murray on 12 April 1830: Historical Records of Australia, Series 1, Vol. 15, p. 418; the cost to the government of its decision to withdraw the convict servants from the proprietors of the Australian and the Monitor was almost £600. On costs in this case, see also Forbes C.J. to Governor Darling, 22 October 1830, Chief Justices' Letter Book, 1824-1835, Archives Office of New South Wales, 4/6651, p. 271; Darling to Forbes and reply, 19 February 1831, Forbes Papers, Mitchell Library, A 1381 (Reel CY 986), pp 96-99; and W.H. Moore to Colonial Secretary, 17 February 1831, Forbes Papers, Mitchell Library, A 746.  The costs question was referred to the Supreme Court: Hall v. Hely, 1831.

Sir George Murray told Governor Darling in a despatch dated 3 May 1830, that it was quite wrong of him to withdraw convict servants from the newspaper proprietors, merely because they criticised the government.  The power of withdrawal was not intended to be for political purposes.  The principal if not exclusive consideration in such cases was the benefit of the convict; the aim of the power was to withdraw convicts from masters who abused them.  Murray required Darling to refer all such cases in future to the Executive Council for advice.  Source: Historical Records of Australia, Series 1, Vol. 15, pp 463-464.  Murray wrote to Darling again on 8 November 1830, in response to Darling's despatch of 12 April 1830 (pp 810-812).  He said that he approved of the government paying the costs and indemnifying the public officials against the damages awarded in these cases.  He queried the legal costs however, before reiterating his criticism of Darling's decision to withdraw the convict servants from the newspaper proprietors.  He told him that convicts were to be removed only if masters were too severe or too indulgent.  (On 10 November 1830, Murray returned to the topic of the colonial government's excessive legal costs, and the excessive number of crown law suits.  He suggested that the English Law of Extents should be introduced into New South Wales; that law was an efficient means for the crown to recover debts owed to it (pp 813-815; and on crown debt recovery, see also pp 824-828).  See Vol. 16, pp 91-95; Hall v. Hely, 1831; and see Sydney Herald, 7 November 1831 on the taxing of the costs in these cases.

Governor Darling informed Goderich in a despatch dated 27 June 1831, that he removed the convict servants of Hall and Hayes, in order to prevent them from disturbing the peace and good order of society.  He thought that their conduct was far worse than a master improperly treating or indulging a servant.  Source: Historical Records of Aust.ralia, Series 1, Vol.16, 291.

[2 ] Hall, the editor of the Monitor,  was in gaol for a series of offences committed during 1829: see the numerous cases called R. v. Hall in that year.

[3 ] (1829) 10 Geo. IV No. 8; amended by (1830) 11 Geo. IV No. 2.

[4 ] See also Australian, 3 September 1830.

[5 ] See also Hall v. Rossi, 1830; and Hayes v. Hely, 1830.

[6 ] See also Australian, 10 September 1830.

[7 ] See Hayes v. Hely, 1830.

Published by the Division of Law, Macquarie University