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

Jackson v Fagan [1833] NSWSupC 92

bond, action on - tenancy - fraud, judgment obtained by - appeals, fresh evidence

Supreme Court of New South Wales

Burton J., 23 October 1833

Source: Sydney Herald, 24 October 1833[1 ]

Wednesday. - Before Judge Burton and a Common Jury.

Jackson v. Fagan.  This action sought to recover a debt on bond, under the following circumstances: the plaintiff, who was barracks master, let to Robert Day the Canteen, in Sydney barracks, at the yearly rent of £620, and took a joint bond of Day and defendant, as security for payment.  There were two quarterly payments in arrear.

The Solicitor General produced the agreement and bond, which were proved by witnesses.  A difference appeared in a clause, which in the agreement provided quarterly payments, while, in the bond, the gross sum was stated yearly.  This difference was taken as the ground of defence.

His Honor thought that this difference did not invalidate the bond, which, taken referentially, was in its meaning and extent fully complete; and therefore the Jury would find for plaintiff to the extent of two quarters rent, no defence being tenable.

The Jury, after consulting a few minutes, gave a verdict for plaintiff to the amount of two quarters rent, £310.


Forbes C.J., Dowling and Burton JJ, 4 November 1833

Source: Australian, 8 November 1833


Jackson v. Fagan.- This was an action of debt on bond to recover £310, being half a year's rent of the Canteen in the Military Barracks, and for which amount a verdict was returned.  Tried during the present term before Judge Burton ad a Common Jury.

Mr. Wentworth moved for a new trial, on the ground that the bond sued upon was not the bond of defendant.  The testimony of the witness to the bond, as to its delivery by defendant, was waving and unsettled, and if at the time of trial he had produced evidence which he was not then aware of, the verdict must have gone the other way. -  This was a joint bond of Day and Fagan, and was intended to have been also signed by Hughes for the performance of a contract entered into by Day; but from his had circumstances, the Crown officer had not thought fit to proceed against him, although he was the principal.  He held in his hand the affidavit of Fagan, which proved that Day had been guilty of fraud, for when the action was commenced, he went on behalf of Fagan to Mr. Chambers to defend it, but withheld from him all the circumstances of the case, evidently wishing a verdict to go against Fagan, thereby exonerating himself.  The affidavit stated that there was no delivery - the bond was signed by Day and Fagan and left with Day to get the co security to sign, but Hughes would not.  If Fagan had a known this, he would not have signed.  As it was, upon that understanding, he did so.  It was therefore clear that it was it not his bond.  It had been left with Day in the mere nature of an escrit, until Hughes should have put his name to it.  The affidavit also stated that the bond so left with Day he never saw again, but subsequently it found its way into the Barrack Master's Office.  This corresponded with the evidence on the trial.  This was a case in which important evidence had been withheld, which, if produced, would have procured a different result.  It was a verdict by surprise, occasioned by the fraudulent acting of a party, whose interest it was that a verdict should go against the defendant.  On these grounds he moved their Honors for a new trial.

The Solicitor General opposed the motion.  The affidavits put in by the other side he objected to being made use of as laid down in 2d Term Reports, 113, that facts which might have been proved before a Jury could not be admitted afterwards.  A party could not take the chance of a verdict, and then come before the Court for a new trial upon fresh evidence.  If this deed had been intended as an escrit, such words should have been cited at the time as to make it known, but no such thing had been done.  The deed had been left with Day to obtain the signature of Hughes, and it was decided in a case in Barnwell and Gresswell, that it was not necessary to deliver the deed to the party in whose favour it was executed, but if kept in the possession of the party executing it, it was still a valid and effective delivery.  There was no privity between Fagan and Hughes, and therefore the delivery was complete, and the instrument was found in the proper place, the office of Major Jackson.

The Chief Justice, - If this bond was not effective without the signature of Terry Hughes, the case would be different, but no such reservation was made.  The bond is left with Day to obtain the signature of the co-obligers, and handed over to the right party, and in faith of that, the Canteen is delivered to Day.  It was defendant's fault to put the bond in such a situation as to allow of the fraud, but it would be equally a fraud upon the plaintiff, if he could not recover upon the bond, as he acted on the faith of it.  The defendant's could not be admitted, as the evidence might have been produced on the trial. He saw no ground to disturb the verdict.

Judge Dowling was of the same opinion.  The affidavit could not affect the case.  The defendant was answerable for his own act and deed, within the stipulations at the time of signing the bond. -  If at the time defendant had stipulated that it should be signed by Hughes, it was necessary to have acquainted plaintiff with that circumstance.  Defendant was answerable for his own acts, and he was of opinion the verdict must stand.


Forbes C.J., Dowling and Burton JJ, 4 November 1833

Source: Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266

[p. 171]This was an action of debt on a surety Bond executed by deft. with one Day, for the due payment quarterly by the latter of the rent of a military canteen in Sydney.  Day became insolvent.  The bond was also to have been [p. 172] executed by Jn.o Terry Hughes, but the latter declined.  The Plf at the trial before Burton J. had a verdict for 310£.

Wentworth now moved for a new trial on the ground of surprize, stating on affidavit, that after the trial it had been ascertained that Day had committed a fraud upon the Deft, by inducing the latter to sign the Bond on the express undertaking that Jn.o T. Hughes was also to execute the bond as a cosurety with him, & that consequently the bond was delivered only as an escrow.

Sed per curiam.  This would have been no defence, even if the fact had been ascertained before trial, unless it was made to appear that the Plf Jackson also knew the alleged condition on which the deft executed the bond.

Plunkett S.G. contra.R.R.[2 ]



[1 ] See also Australian, 25 October 1833, noting that the defendant pleaded non est factum because the bond had not been legally executed and there was a fatal variance between the bond and the pleadings.

[2 ] Rule refused.

Published by the Division of Law, Macquarie University