Skip to Content

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

Dixon v. Harvey [1832] NSWSupC 88

equity, delays in - interpleader - laches - civil procedure, equity - equity procedure

Harvey and Murray

Supreme Court of New South Wales

Forbes C.J. and Dowling J., 12 November 1832

Source: Sydney Herald, 12 November 1832[1 ]

 

The Chief Justice and Judge Dowling took their seats this morning.

The case of Dixon v Harvey and Wife and Lathrope Murray have been called on, Mr. Geo. Allen observed, that he had received letters from his client Mr. Murray, stating, that he intended to leave the Derwent for Sydney on or about the 14th instant, he, therefore, prayed the Court to postpone the case until his arrival.

Mr. Wentworth - Every time this case has been mooted, which is now about the tenth time, letters are always produced stating that he intends coming up.  If he were up here his case would be in the hands of his counsel, and if he does not now choose to make him acquainted with all the circumstances of the case, yet he is not to keep the parties out of their property sine die.  This case had been before the Court since November, 1828, and all the evidence that could be adduced in the case had been examined, to which Murray had answered, but in such a manner that he would not and dare not come up.

Mr. Allen here read letters from Murray, dated 2nd October, 1832, and an affidavit sworn before the master of the Supreme Court at Hobart Town stating that he was prevented from coming up from ill health and other causes; that he should come up by the next vessel, and bring Mr. Gellibrand with him to conduct his case, he wished the case to be postponed as long as possible.

Judge Dowling - It is not alleged why he should be up.  He has not even taken the usual course of sending a medical certificate.

Mr. Allen - The case has stood over for four years, and it can be no harm to let is stand over for a few months longer.  I ask your Honor no longer than the next term.

The Chief Justice - We think the most equitable course will be to hear the cause now, and if we are inclined, to make the decree, at the same time to allow some interval for the party to come in and reopen it when it can be reheard, if the justice of the case requires it.

Judge Dowling - The case is ripe and we are bound to hear it.

Mr Wentworth stated the case to the Court.  This was a bill of interpleader to which John Dixon was complainant, and Harvey and wife and Lathrope Murray were defendants.  He appeared on behalf of Harvey and wife, between whom and Murray the contest for the property existed.  The sum of £393, the produce of cattle, sheep, horses &c., sold under the order of the Court, had been paid in, and he wished now to obtain a decree in favour of the party to whom the money was due.

The answer of Murray to the bill was a denial that the stock belonged to Mrs. Harvey, that they were purchased with his own money, and at one time he had intended to have demised them to Mrs. Harvey.  Harvey and wife in reply stated, that the cattle, &c. were purchased with the money of Mrs. Harvey; other evidence had also been examined which want to show how they had been purchased.  In 1823 Mrs. Harvey went to England, and he would now read to the Court extracts of letters sent by Murray to her when residing there, the first was dated March, 1825.  ``Your horses, cattle, sheep, &c. are all well, and you have a very handsome increase, Mr. Dixon says you have the finest stock in the Colony."  Another dated 25th June, 1825. ``I have got a capital account of your stock in Sydney, they are increasing, your sheep are of the very best quality." Another dated 12th September, 1825. ``In regard to your cattle, &c. you may rest assured that every possible care will be taken to secure you as if you were on the spot yourself." Another dated 16th January, 1826. ``Mr. Dixon communicated the contents of your letter to me, and I desired him to comply with your request, I wished to send you a return of your cattle, but have not received one since I received your despatch."  Another dated 27th April, 1826. ``Mr. Dixon says he has sent an account of your stock, &c." Their Honors would observe here was a series of acknowledgements of the most explicit description, and Mr. Dixon himself says that the extracts of the letters I have just read, refer only to the agreement of 1823, which is the foundation of this suit.  He always considered all the stock as the property of Mrs. Harvey.  He would ask their Honors, under these admissions, what was the use of Murray being in Court, he could not set up any evidence to do away with admissions strong as these.  The evidence was on one side, and left no doubt to whom the property belonged.  The decree prayed for by Harvey and his wife is this, that all the cattle, sheep and horses originally placed in the care of John Dixon, except two hear and their increase belonging to Lathrope Murray, were the property of Mary Brown now Mary Harvey, the wife of Richard Harvey, and that Richard Harvey and his wife were entitled to the proceeds of the sale of cattle, sheep, &c. deducting £104 13s. 4d. for Mr. Dixon for the services of horses, ad that the balance be paid to Harvey and wife, and that Murray be decreed to pay Harvey and wife plaintiff's costs and the amount of their own costs.  And on the part of Dixon that out of the £393 paid into the Court he should be paid his costs, and the £104 13s. 4d. as by the master's report he is entitled to for the service of horses.

The Chief Justice observed there were several Equity cases for judgment, which they intended to pronounce all on one day.  With respect to the present case, they would see what was the nature of the decree before them and decree accordingly, making it however nisi until January next, that defendant might have an opportunity of showing cause why the decree should not be made final.[2 ]

 

Notes

[1 ] See also Australian, 16 November 1832.

[2 ] Dowling, Proceedings of the Supreme Court, Vol. 78, Archives Office of New South Wales, 2/3261, at p. 217, stated that at the hearing before Forbes C.J. and Dowling J. on 8 November 1832, the court delivered judgment for the plaintiff, with leave to the defendant to come in by 1 February 1833, to stay the decree if he could show sufficient cause.

The Sydney Herald, 3 June 1833 reported the following: "Dixon v. Harvey and Wife, in Equity.  Mr. Wentworth moved that the decretal order of the Court obtained on the 17th November last, be made absolute.  Granted."

Published by the Division of Law, Macquarie University