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

Lee v Macqueen [1832] NSWSupC 47

foreign attachment - set off - entire contracts rule - master and servant - deed, proof of

Supreme Court of New South Wales

Dowling J., 10 July 1832

Source: Sydney Gazette, 17 July 1832[1 ]


Lee v. Macqueen, Esq. M.P.

This was an action on a covenant to recover the amount of wages due to the plaintiff, Benjamin Lee, an indented servant to the defendant, Thomas Potter Macqueen, Esq. M.P. and also to recover the amount of rations, fuel, &c with which the defendant covenanted to supply the plaintiff, but which he had failed to do.

The defendant pleaded the general issue, a set off, and also put in a special plea of non est factum.

Mr. F. Stephen opened the pleadings.

Mr. Wentworth stated the plaintiff's case, of which the following is the substance:the plaintiff, a person of some experience in agricultural affairs, was engaged by the defendant in the month of May, 1828, to proceed to this colony in the capacity of an Assistant Superintendent on the defendant's estate at Segenhoe, under the immediate orders of Peter M'Intyre, Esq the defendant's then agent, who was directed by the defendant to make the plaintiff and his family as comfortable as he could on their arrival in the colony, and to place him in charge of the farm at Bulwarra, or of such other part of the defendant's estate, as he (Mr. M'Intyre) should think proper.  In pursuance of this agreement, a deed was entered into between the plaintiff and defendant, in London, and executed at the office of Mr. Bevan, the defendant's attorney, who was also a subscribing witness, by which the plaintiff agreed to serve the defendant, in the above capacity, for ihe [sic] term of seven years; the defendant, on his part, agreeing to allow him the clear sum of £100 per annum, a house to live in, the usual rations of the colony for himself and family, fuel, &c.; to provide him with a passage to this colony for himself and family, pay him the first half year's salary in advance before he embarked, and also to provide a free passage to England for him and his family, should they be desirous of returning at the expiration of the term of the indenture.  The plaintiff and his family accordingly embarked in the Thames on the 1st of June, 1828, arrived in this colony in January, 1829, and immediately proceeded to Segenhoe, where they were lodged in a temporary manner by Mr. M'Intyre till a house could be prepared for them, and, at the end of a week or two, the plaintiff commenced his duties.  From that period up to the latter end of December, 1830, or beginning of January, 1831, he received no wages, Mr. M'Intyre not being able to pay him for want of funds, and Mr. Sempell, who succeeded him, refusing to pay, alleging that the plaintiff had committed a breach of his agreement by carrying on a traffic on his own account at Segenhoe, and by having quitted the estate without permission, when he proceeded to Sydney, in Nov. 1830, in order to obtain legal advice respecting his claim.  Mr F. Stephen, to whom he applied, wrote a letter on the subject to Mr. Sempill, requesting the liquidation of the plaintiff's demand, and his discharge from the indenture, which had been broken by the failure to pay wages, but received no answer; and when the plaintiff returned to Segenhoe, and expressed his willingness to resume his labours, Mr Sempill refused to employ him any longer.  At that time, however, the Foreign Attachment Bill, by which the plaintiff might have been able to attach the defendant's property in this colony was not in force, in consequence of which it would be useless to sue; nor was he able to commence his action previous to the 14th of March in the present year.  He, therefore, claimed wages for thrce [sic] years and forty-one weeks, at the rate of £100 a year.

The first witness called, named Poulton, proved that he was present when the indenture was executed at the office of Mr. Bevan, the defendant's attorney in London; saw Mr. Bevan sign the indenture as a witness; did not actually see defendant sign it, but he was at the table when plaintiff signed it; after the indenture was executed, plaintiff carried it away in his pocket; witness is also an indented servant to defendant, and came out to this colony in the same ship with plaintiff; plaintiff brought out some goods with him, which he left in the hands of Mr. Douglass, the auctioneer, for sale, on his arrival at Sydney; does not think he sold any part of them himself; he remained at Sydney about three weeks.

Peter M'Intyre, Esq.I was for several years in charge of defendant's concerns in this colony; I was so when plaintiff arrived; he reported his arrival to me immediately; he was employed as overseer at Segenhoe; he showed me his indenture, but I also had a letter from the defendant, stating his views in sending the plaintiff out; plaintiff remained on the estate until I left Segenhoe, about September or October, 1830; Mr Sempill succeeded me in June 1830; he is now agent for the defendant, from whom I received a letter directing me to give up the stock to him, which I agreed to do upon the execution of certain bonds; when I left Segenhoe the plaintiff has not been paid any wages; he applied to me for payment, but I had no funds; plaintiff conducted himself very well; he came out to assist me, and, in the event of any thing happening to me, to succeed me; my only reason for not paying him his wages was the want of funds; by the terms of his agreement he was to be put in charge of the farm of Bulwarra, but I did not place him there because I considered the estate was mine at that time, and not the defendant's; I built a house for the plaintiff as soon as I could, as I was directed by the defendant to make him as comfortable as circumstances would admit; it was many months before I could get the house ready, and in the mean time, he had the use of a room at on end of a new store; he was on rations; he had 7 lbs of beef, 1½ lb of sugar, 3 oz of tea, and 12 lbs of flour weekly; he had also rations for his wife and children; when Mr. Sempill arrived, I think I had a conversation with him respecting the plaintiff's claim for wages, as well as the claims of the other indented servants who had balances due to them;  I never paid plaintiff any wages; I do not recollect the answer Mr. Sempill made me; when I left Segenhoe the plaintiff was entitled to the whole of the wages accruing to him since the date of his indenture, except what might have been paid him in London, of which I know nothing; plaintiff remained on the estate after me.

Cross-examined by Mr. NortonI did not comply with the terms of the defendant's letter at first; I mentioned the plaintiff's claim to Mr. Sempill, among others; I don't recollect telling him that the plaintiff was a useless fellow, and in the habit of selling grog to the people on the estate; is is [sic] probable that I may have said so, for I remember hearing of a disturbance on the estate owing to some of the people getting drunk, while I was from home one night; I never knew plaintiff to keep a shop on the estate; I once saw an account handed, either by him or his wife, to one of the people, the items of which were for pins, needles, tapes, and things of that sort; plaintiff was overseer of the agricultural department; he never told me he had no duty to perform; he never showed me a letter he had written to the defendant on seven sheets of foolscap; he never represented to me that his continuing in the defendant's service was useless as he had no duty to perform; he was not put in charge for a few weeks after his arrival, in order that he might get acquainted with the place.

Re-examinedThere are few extensive establishments in the colony, on which there are not occasional disturbances among the servants; they will get a drop of grog if it is to be had at all; I have often been surprised where they obtained it.

Francis Stephen Esq.I was applied to professionally by the plaintiff in 1830; I was first applied to by letter in October of that year, in consequence or which I addressed a letter to Mr Sempill, but received no answer; I also wrote to the plaintiff giving him my advice how to act; about three weeks or a month after that, plaintiff came to Sydney, and applied to me personally for advice; he gave me a copy of his indenture; this, I think, was in November or December, 1830; I never had any conversation with Mr Sempill respecting the claims of the indented servant's.

John PorteusI am an indented servant to the defendant; I know the plaintiff; was present at a conversation between him and Mr. Sempill in the stores at Segenhoe; I heard him say to Mr. Sempill, that unless some arrangement was made for settling his account he would not remain on the estate; I don't recollect Mr. Sempill's reply, as I withdrew when I found the parties were in conversation; this was a few days before plaintiff went to Sydney; I think he went on the 18th of November 1830, and returned in about three weeks; he did not act as overseer after his return, but I don't know why, from any thing I have heard from Mr Sempill himself; I remember, after plaintiff's return from Sydney, he expressed his readiness to return to his duty, but Mr. Sempill would not permit him, stating that he had broken his engagement by going to Sydney; the plaintiff remained on the estate till the middle of February 1831; I accompanied the plaintiff to Sydney, and I know his object was to get legal advice; I went with him to the office of Mr. Stephen; he rode from Segenhoe on a horse he had of Mr. Sempill; I was not present when the bargain for the horse was made.

Cross-examinedWe left Segenhoe, to come to Sydney, and on the 18th of November 1830, and returned the latter end of December; we would have returned sooner but for an accident that had occurred to the Lord Liverpool packet, and we did not like to proceed to Newcastle by one of the small craft; we could not go by land, for a great flood happened at the time, and we could not pass the creek at the Wolombi; I do not recollect the plaintiffs telling me that he had sent a power of attorney to his brother in England to settle with the defendant on his account.

Re-examinedSegenhoe is 100 miles distant from Newcastle, and it is 70 miles from Sydney to Newcastle by water; we was six days before we got to Newcastle, where we waited three days for a vessel, and were a day and a half coming to Sydney; we remained eight or nine days in Sydney, during four of which we were detained owing to the accident to the Lord Liverpool; we returned to Newcastle by the Northumberland; we transacted our business at Sydney as speedily as we could, and got back again as speedily as we could; to my knowledge the plaintiff has not been in any employment since he left Segenhoe.

Poulton, re-calleddefendant's handwriting; the letter is in it; it is addressed to the plaintiff by the defendant.

[The subject of the letter, which was read by the clerk of the court, was to the effect that, as the plaintiff seemed dissatisfied, the defendant wished to relieve him from his engagement, and for that purpose, would send out instructions, by the first vessel, either to Mr Sempill or Mr. Montefiore, to look into his accounts and settle his claim.]

Cross examinedI never heard plaintiff say he had sent authority to his brother to settle with the defendant in England; I never heard him say so; he keeps his affairs close; I lived in the same place with him before his house was finished, and a very mean place it was; I know he was writing something, but what it was about I don't know.

John M'Intyre, storekeeper at Segenhoe, was next examined.  The evidence of this witness was chiefly to show that some alteration had been made by Mr. Sempell in the rations previously allowed to the plaintiff, and that, for some time, the flour was of bad quality.

On cross examination it was admitted, that about the time spoken to by the witness, there was a scarcity of wheat in the colony, and that ihe flour was of the same quality as that used by Mr. Sempell himself, when at the estate.

[The agreement was then put in and read]

This was the principal evidence on the part of the plaintiff.

Mr Norton submitted that the execution of the indenture was not proved in the only way it could legally be provednamely, by the examination of the subscribing witness himself, or, in case of his death, by proving his hand-writing.  Here the only proof was, by the witness Poulton, that Mr Bevan was the defendant's attorney; he did not attempt to prove that the signature to the deed was in his hand-writing.  The necessary proof, he submitted, might have easily been obtained, either by a commission, or by an attestation under the seal of the Lord Mayor of London; and, in the absence of such proof, the action could not be sustained.

Mr Justice Dowling said, there were certainly very strong cases upon the point; but still he would not nonsuit the plaintiff upon the objection, but put the case to the Assessors on the merits, reserving the point raised for the future consideration of the full Court should it be necessary.

Mr Norton then addressed the Assessor at some length on the part of the defendant, and put in evidence an account, by way of set off, amounting to £80 odd, for the purchase of a horse, rations overdrawn, and other matters, part of which was admitted by the plaintiff.  It was also attempted to be shewn that the sum of £100, received by the plaintiff from Messrs. Jones and Walker, on behalf of Mr. Hart Davis, as a gratuity for selecting 15,000 acres of land in this colony, was paid to him on account of the defendant.  Mr M'Intyre, however, stated that he never was directed by the defendant to carry that amount to the plaintiff's debit.

Mr. Wentworth replied.

The learned Judge then summed up the whole of the evidence and put it to the Assessors to say, as matter of fact, whather [sic], from the testimony before them, they believed the deed to have been duly executed by the defendantHis Honor saving the point as to the legality of the evidence on which it was sought to be established.  Then, with respect to the alleged breach, he told them, in point of law, if they were of opinion that the plaintiff left the estate for the honest, bona fidepurpose of seeking legal redress, it was no breach of his engagement.  He had a right to some to the Court to look for justice, and, as a consequence, he had the right to come to an officer of the Court who would bring his case before it in a proper manner.  He regretted that the matter had not been arranged without the expense and trouble of litigation; at the same time, while it was conceded on all hands, that the defendant was a most upright and honourable gentleman, his agent in the Colony, also a highly respectable gentleman, ought not to be discommended for protecting his interests here according to the best of his judgment.

The Assessors found a verdict for the plaintiff,damages £297 4s, 1d.

Connsel [sic] for the plaintiff, Mr Wentworth and Mr. F. Stephen; for the defendant.  Mr, Norton.


Forbes C.J., Stephen and Dowling JJ, 22 September 1832

Source: Sydney Herald, 24 September 1832[2 ]


Lee v. Macqueen. - This was an action on convenant on an indenture entered into between the parties, tried last term, when a verdict was returned for plaintiff, but a point was reserved whether sufficient evidence was given as to the execution of the deed.  Mr. Norton now argued that the signature of Bevan, the attesting witness, was not proved according to the rules of practice.  The witness himself should be examined, or if that could not have been done, the difficulty might have been got over by the production of an affidavit, sworn before the Lord Mayor, but no such proof had been adduced.

Mr. Wentworth, in reply, contended that where any witness to a deed lived in a foreign Country, proof of his handwriting would be sufficient. -  This had been done in the present case, one witness having proved that Mr. Bevan resided in London, and that he saw him sign the deed in question.  This he considered quite sufficient proof.

The Chief Justice observed that the case was one of considerable importance - the Court would take time to look into it, and give their decision on an early day.



Forbes C.J., Stephen and Dowling JJ, 29 September 1832

Source: Sydney Herald, 1 October 1832[3 ]


Lee v. Macqueen. -  In this case a motion was made last Saturday and argued, to set a-side the verdict, and enter a non-suit, on the ground that the execution of the deed, on which the action was brought, was not properly proved, as also the signature of the attesting witness, J. T. Bevan.

The Chief Justice now delivered the opinion of the Court.  It was an inveterate rule of law, that a subscribing witness to a deed must be produced, or his absence satisfactorily proved; no doubt the Court was entitled to receive the best proof that could be offered, and give it such effect as they might think it deserved.  In the cases of Johnson v. Mason, 1st Espin of 189, and Paul v. Dunning, 4 East, it was laid down that the basis of admitting secondary evidence, was by proving the handwriting of the subscribing witness, and that he was out of the reach of the process of the Court.  The question here was, whether J. T. Bevan was out of the reach of the Court; the handwriting had not been identified as Bevan's; but it was proved that the deed was executed in London, at the office of one J. T. Bevan, was not this sufficient for the Jury to presume that that was the Bevan who lived in London.  The case being one of foreign transaction, they were of opinion it had been properly left to the Assessors to say whether or not the Bevan spoken of, was not the Bevan of London, whose handwriting, as attesting witness, was to the deed.  As to the handwriting of Mr. McQueen, that had been expressly proved.  Under all the circumstances the Court were of opinion, the rules of proof of sealed instruments had been sufficiently complied with, and the verdict must stand.


Forbes C.J., Stephen and Dowling JJ, 29 September 1832

Source: Dowling, Proceedings of the Supreme Court, Vol. 78, Archives Office of New South Wales, 2/3261


[p. 212] Covenant upon an indre[4 ] for hiring & service for 7 years, purporting to be made in London in 1824, whereby Plf bound himself to serve the Deft. on his estate at Seginhoe on the Hunter's River.  Plea non est factum.  At the trial before Dowling J.[5 ] proof of execution of the deed by the Deft was clearly established.  The execution of the deed purported to be witnessed by one T.P. Bevan.  Mr Bevan was proved to be an attorney living in London, & employed by the Deft as his legal advisor.  There was general evidence that the deed was executed at Mr Bevan's office in London in the presence of all the parties - that after the execution by the Deft, Mr Bevan was immediately to seen to sit down [p. 213] at a table with a pen in his hand, and the deed before him as if to sign his name as witness.  The deed was then delivered to the Plf.  It was objected on the part of the Deft. that the Plf was bound to produce the subscribing witness, according to the general rule in such cases.  The Judge saved the point, but he left it for the assessors to determine upon the evidence whether the name of Bevan was not in the handwriting of the Mr Bevan who acted as the attorney of the Deft at the time the deed was executed.  The Jury found for the Plf.  The point reserved having been afterwards brot.[6 ] under consideration, the Court thought there was sufficient evidence of the identity of Mr Bevan, & of his handwriting, with the attesting witness Bevan, & that fact being established, it was clear that this case came within the exception from the general canon of evidence, where a subscribing witness is out of the jurisdiction of the Court. Wallis v Delaney 7. T.R. 266. Grellier v Neale Peake N.P. 166 Call v Dunning 4 East 54.  1 Esp.89 Johnson v Mason.

Verdict to stand.



[1 ]See also Sydney Herald, 16 July 1832, which noted that this was the first action taken under the colony's new Foreign Attachment Act (2 Wm 4 No. 7).  Governor Bourke reported the passage of this Act to Lord Goderich on 19 March 1832, noting that it had been drawn by Forbes C.J.: Historical Records of Australia, Series 1, Vol. 16, pp 564-565.  For the Act, see Sydney Gazette, 1 March 1832; and see Sydney Herald, 23 January 1832.

Under the Act, a Supreme Court plaintiff could swear that her or his local debtor was absent from the colony or was avoiding service, and that some of the debtor's assets were in the hands of a third person in the colony.  The attachment then issued, binding the property in the hands of the third party.  Before sale of the property, the plaintiff had to enter into a recognisance of twice the value of the property, so that if the debtor returned within three years and disproved the claim, the value of the property could be recovered.  There had been foreign attachment under (1823) 4 Geo. IV c. 96, s. 11, but that expired in 1827.  It had also existed in the colony's initial constitution, the First Charter of Justice (on which, see B. Kercher, Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict New South Wales (Federation Press, Sydney, 1996, p. 191).

Similar cases were heard against Macqueen on succeeding days, and Lee again sued Macqueen for goods sold and delivered on 11 July 1832: Sydney Herald, 11 July 1832.

[2 ] See also Sydney Gazette, 25 September 1832, Australian, 21 September 1832.

[3 ] See also Australian, 5 October 1832.

[4 ] Indenture.

[5 ] Marginal note in manuscript: ``See Vol 71 p. 105".

[6 ] Brought.

Published by the Division of Law, Macquarie University