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

Portus v Macqueen [1832] NSWSupC 65

deeds - agency, power to execute deed - power of attorney - documents, delivery of

McIntyre v. Macqueen

Campbell v. Macqueen

Supreme Court of New South Wales

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

Source: Sydney Gazette, 25 September 1832


Porteus v. Macqueen

This was an action of covenant on an indenture, to recover wages, tried last term before Mr. Justice Dowling, and a verdict returned for the plaintiff, damages £143 3s. 5d.  In this case,[1 ]however, the deed was executed, on the part of the defendant, by his agent Mr. M'Intyre, and a question was reserved for the consideration of the Court; whether an agent, under a power of attorney, could execute a deed to bind his principal.

The Court, after hearing counsel on both sides, ordered the case to stand over for consideration.



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

Source: Sydney Herald, 1 October 1832[2 ]


Portus v. Macqueen, and McIntyre v. Macqueen.  In these cases a motion was made last Saturday and argued, for a nonsuit, on the ground that the deeds entered into by Mr. Peter McIntyre with the plaintiffs, as the defendant's agent were not valid, and supposing their validity to have been established, the written instrument under which Mr. McIntyre executed the deed did not convey to him the power so exercised.  The Chief Justice delivered the opinion of the Court.  The point to be considered in this case was whether the deeds executed between Mr. P. McIntyre and defendant were valid.  Then arises the question as to the proof of the authority to execute them; Mr. McIntyre states in his evidence that he had authority to do as he had done, and produced a memorandum of agreement under seal between him and defendant, under which he derived the power exercised.  They were of opinion the case did not fall among those which had reference to the competency of agents on agreements entered into between them and their principals.  They considered it not a good and sufficient authority to substantiate a deed under seal.  Mr. McIntyre's having authority to hire servants at such wages as he might think proper was not sufficient to bind his principal by deed.

They were of opinion that all the subsequent acts of the defendant by which it was contended he acknowledged, and adopted the acts of his agent, were not sufficient to bind him.  The deeds being illegal in the first instance could not afterwards be binding upon him by his acts.  In these cases non-suits must be entered.


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. 213] These[3 ] were actions of covenant upon deeds purporting to have been executed by Peter McIntyre as agent for & on behalf of the Deft Thomas Potter Macqueen to serve the latter as indented servants in this Colony.  In all the cases the Plfs had verdicts, subject to the opinion of the whole Court on the two following points, viz:-

[p. 214] First. Whether the power under which McIntyre executed the deed on behalf of the Deft was properly proved.

Second Whether the power, supposing it to have been sufficiently proved, was sufficient to authorize him to execute a deed on behalf of the Deft.

McIntyre was examined as a witness, & he produced a paper writing under seal which he saw the Deft execute to him, authorizing him to act as his general agent in this Colony, & to hire servants &c.  It was contended that it was incompetent to McIntyre to prove that he himself was agent under this instrument, & that the due execution of the instrument should have been proved in the regular way by other more independent evidence; for an agent can't prove his agency.  The paper produced however, did not in terms authorize McIntyre to execute a deed for the Deft, but only tohire & contract with servants on Defts account.  There was evidence that the Deft had afterwards acknowledged the indres[4 ] by speaking of the Plfs as his indented servants.

        The Court, however, after taking time to advise on the cases, now resolved

        1st that the power to McIntyre was not sufficiently proved

        2nd that if proved it did not give power to execute a deed

3nd that the subsequent acknowledgment wd not dispense with the proof of the deed having been properly executed.  Holt N.P.C. 141.

        Per Cur.  Nonsuit to be entered.


Forbes C.J., Stephen and Dowling JJ, 6 October 1832

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


[p. 215] Assumpsit for goods sold & del.d - tried before Forbes C.J. & verdict for Deft.  New trial now refused on the ground that the verdict was not ag.t evidence.



Forbes C.J., Stephen and Dowling JJ, 3 November 1832

Source: Sydney Gazette, 6 November 1832


M'Intyre v M'Queen

This was an application to the Court, to compel the defendant to deliver up certain books of account, necessary on the trial of a cause now pending.  It appeared that the plaintiff had been the defendant's agent, and that certain disputes having arisen between them, the matter was referred to arbitration.  Previous to this, the plaintiff had furnished the defendant with a copy of the books kept by him; but the original books having been produced on the arbitration, got into the possession of the defendant's agent, by whom they were retained; and the reference having gone off, the present application was made to compel their restoration.

The Court held that, it could not make the order applied for; more particularly, as no claim to property in the books in question had been set up by the plaintiff - they being merely books kept by him in his capacity of agent for the defendant.  The original books might be produced at the trial of the cause by a subpoena duces tecum [?] and, in the mean time, the Court would order that, for the purpose of the cause, the plaintiff should at all reasonable times have access to the original books, and that the copies should be returned to him.


Forbes C.J., Stephen and Dowling JJ, 3 November 1832

Source: Dowling, Proceedings of the Supreme Court, vol. 76, Archives Office of New South Wales, 2/3259


[p. 193] P. M'Intyre v T.P. Macqueen

Judgment on these cases following deld. on 3rd Nov 1832, Saturday

Present Forbes, CJ Stephen J, Dowling J

This was an application to the Court to compel the deft to deliver over to the Plf certain books of accounts between the parties for the purpose of the trial of their cause.  The Plf had been the agent or manager of the affairs of the deft in this country, and had been superceded in his office by another agent[5 ] duly appointed by the deft.  Disputes having arisen between plt and deft as to the adjustment of the accounts between them, it had been agreed offer these disputes to arbitration.  The Plf had rendered to the deft a copy of the accounts, and at the inquiry before the arbitrators produced the original books of account touching the affairs of the deft.  These originals were left in the possession of the arbitrators, and the [p. 194] reference having gone off for some cause, not necessary now to advert to, they were delivered over to the defts agent, contrary, as it was aleged to good faith, and to an agreement that the books should be returned to the Plf in stata quo.  The defts agent claimed to retain these books as the property of the deft, his principal, but he was willing to retain the copy which had been furnished by the Plf.  The question now is whether we can compel the Defts agent to return the original books so coming into his possession.  Upon consideration, we are of opinion that we have no authority to enforce in a summary manner the agreement, whereby the original books were to be delivered up, as alleged, to the Plf.  If it had appeared clearly that the books were the property of the Plf probably we should order them to be returned, but the Plf having been [p. 195] agent for the Deft, and other books are said to relate solely to the Plf's employment as such agent we feel that it would be too great a stretch of authority to direct the books to be now delivered up.   We think, however, that for the purpose of this cause the Plf ought to have access to the books at all reasonable times & seasons previously to the trial, so as to enable him to establish his case upon matters arising in the course of his employment and to which these books may relate.  The defts agent must deliver up the copies of accounts or books furnished by the Plf in order to this reference.  The originals may be produced at the trial under asubpoena duces tecum.  If the Plf has any absolute individual [p. 196] seperate property in the books, the right thereto cannot well be tried on affidavits, and the Plf must be left to another remedy.  As it is probable that the Plfs purpose will be attained, in our present view of the case, we order and direct that for the purpose of this cause, the deft or his agent, shall at all reasonable times prior to the trial, offer the Plf or his attorney to have accept the Books, and that the copy thereof now in possession of deft be forthwith returned to the Plf.



[1 ] See also Lee v. Macqueen, 1832, which preceded this in the Sydney Gazette; and see Campbell v. Milson, which was reported very briefly immediately after it.   See alsoAustralian, 5 October 1832; Dowling, Proceedings of the Supreme Court, Vol. 75, Archives Office of New South Wales, 2/3258, pp 26-27.

[2 ] For other proceedings, see Sydney Gazette, 18 September 1832; Australian, 21 September 1832; Sydney Herald, 24 September, and 8 October 1832.  See also R. v. McIntyre, 1833.

[3 ] The record commences with the names of the cases (Portus v. Macqueen, McIntyre v. Macqueen, and Campbell v. Macqueen) and notes about the other places in which they are recorded in the Dowling notebooks (vol. 71, p. 188: Portus; vol. 71 p. 204: Campbell; vol. 72, p. 3: all three cases).

[4 ] Indentures.

[5 ] The manuscript has a marginal note here, stating "M. Sempill".

Published by the Division of Law, Macquarie University