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

Keys v Ellison and wife [1831] NSWSupC 9

trover - settlement of litigation

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 22 January 1831

Source: Sydney Gazette, 25 January 1831[1 ]

Keys v. Ellison and wife.

In this case an action of trover was brought last term, for the recovery of a promissory note for £63, drawn in favour of the plaintiff on order, by a person named Smith, and illegally detained by the defendants.  On the trial, it turned out that the instruments was wrongly described in the declaration, and the plaintiff was consequently nonsuited.  Defendants' counsel, however, consented to deliver up the note in question, to the counsel for the plaintiff, on condition that no further proceedings should be taken, which was agreed to by the latter; but, in consequence of the drawer of the note having, in the mean time, become unable to take it up, the plaintiff repudiated the undertaking entered into by his counsel, and commenced an action to recover the amount from the defendants.

Dr. Wardell, on behalf of the defendants, now moved, on an affidavit stating the forgoing facts, that the proceedings in the case be stayed, on the ground of breach of faith; inasmuch as, the undertaking entered into on a former occasion, by the plaintiff's counsel, --- who must be considered as his agent, --- was binding on the principal.

Mr. Stephen, for the plaintiff, contended that, as the undertaking was given in ignorance of a most material fact --- namely, the desperate circumstances of the maker of the note --- and having been promptly repudiated by the plaintiff, it could not be held as binding on him.

The Chief Justice. ---  The difficulty in my mind, in this case, is, whether the Court ought summarily to interpose and stay proceedings, where a sum of money is claimed on one side, and denied on the other, on the grounds now laid before us.  It certainly would be treading on very tender ground; and, although I could wish that the case had not occurred, it appears to me that we have no power to grant the present application, and restrain the proceedings now pending in this Court.

Mr. Justice Dowling ---  The general principle at home is, that where a counsel acts for a party, merely as counsel, his acts cannot bind his principal, although, in some cases, the acts of an attorney may.  Now, the question here is, whether the mere circumstance of the same person acting in the double capacity of attorney and counsel, can alter the general principle in such cases.  I do not think it can; nor do I know of any cases wherein this question is decided, except such as are adverse to the present application.  We cannot consider an attorney as any thing more than a mere agent; and, as it does not appear that the plaintiff in the present case did any thing to adopt the contract made by his attorney, but, on the contrary, promptly and decidely [sic] repudiated it, I am of opinion that we should be going too far to interfere with the rights he may have in this Court, by restraining the proceedings he has commenced, on the grounds which have been this day stated.

Mr. Justice Stephen. ---  As my learned colleagues have made up their minds on the question before us, it is unnecessary for me to offer any observations upon it.  Had they not done so, I certainly should have felt it my duty to state my opinion on the subject. ---  Motion refused.



[1 ] See also Australian, 28 January 1831.

Published by the Division of Law, Macquarie University