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

Lyons v Lyons [1833] NSWSupC 90

gifts - Statute of Frauds - passenger on ship - restitution - remedies, choice of

Supreme Court of New South Wales

Dowling J., 12 June 1833

Source: Sydney Gazette, 15 June 1833[1 ]

(Before His Honor Mr. Justice Dowling, and Alexander Kinghorne and John Campbell, Esqs. Assessors.

Lyons v. Lyons. - This was an action of assumpsit, to recover the sum of £269, being cash paid by the plaintiff for the passage-money of the defendant, board and lodging, washing, &c.; as also £100 which the defendant undertook to pay as past of the passage-money of Mr. Abraham Lyons, another brother of the parties.

Mr. Unwin stated the case to the assessors, setting for the circumstances under which the claim was contracted between the parties.

Elizabeth Howell examined - I am a washer-woman residing in Sydney; I know the plaintiff and defendant; I remember washing for the defendant in the years 1827 and 1828; I always rendered the accounts at that time to the plaintiff, by whom I was paid; I remember to have washed for the defendant after he left the residence of the plaintiff and went to reside at the bottom of Pitt-street; I received the sum of £25 10s. 5d. from the plaintiff for washing done for the defendant.

Thomas Jones - I was in the employ of Mrs. Howell in the year 1828; I remember taking articles home which had been washed for the defendant; they were always booked to the plaintiff, to whom the accounts were rendered; I kept the book which is now produced; these entries are mine; I do not know of my own knowledge that the plaintiff paid the accounts; I believe he did.

William Barker - I was clerk to Mr. Samuel Lyons in 1827; I remember Mr. Saul Lyons arriving in that year by the ship Harvey; his passage-money was paid by his brother, Mr. Samuel Lyons; I drew a cheque for the amount, £68 10s; the defendant lived at the house of plaintiff, as a boarder and lodger, for upwards of three months after his arrival.

Cross-examined by Dr. Wardell - When defendant left plaintiff's house he entered into partnership with Mr. Levey; I cannot say in what character he lived in the house of plaintiff, whether as a lodger or a guest entertained, as one brother would entertain another; I always considered the latter.

Mr. Potts examined - I am an officer of the Bank of New South Wales; the cheque now produced is charged in the books of the establishment to Mr. Samuel Lyons, for the sum of £68 10s.; I do not know anything of a person named Evans.

W. Davies, Esq examined - I arrived in the ship Harvey, in the year 1827; I remember a person named Evans of board that ship; he was super-cargo; I remember defendant arriving by that ship; I am not aware of his circumstances at that time; all I know he was a fellow passenger; I remember the arrival of Mr. Abraham Lyons, by the ship Brothers, of which I was agent; Mr. Samuel Lyons called at my counting-house to pay £200 as the passage-money of Mr. Abraham Lyons and family.

Peter William Plomer examined - I was lately employed as arbitrator between Mr. Abraham Lyons and the plaintiff in this case; Mr. Samuel Lyons was present on the occasion; both parties were examined on oath; I remember a statement regarding £100 on that occasion; an arrangement was entered into that the passage money of Abraham Lyons and family was to be paid between the plaintiff and defendant; the memorandum now produced was made by me; I did not read it over to the parties from the result of the examination; I made the award; the defendant admitted that he was to have paid £100, which he said he afterwards paid to Mrs. Samuels, the sister of the parties; an argument took place as to what authority defendant had for paying the money to his sister, when it ought to have been paid to plaintiff; defendant admitted, on being closely pressed, that he had no authority for paying the money; he had paid it, but refused to explain when or where, although asked several times by the plaintiff; I do not remember that any reason was assigned by the defendant for having paid it to his sister; the plaintiff wanted to send for Mrs. Samuels, having a doubt as to the fact of the money having been paid; that was objected to by the lawyer who was present, as she had not been summoned as a witness on the occasion.

Cross-examined by Dr. Wardell - I do not know that the plaintiff applied to any other person for payment of the £100 with which he charged the defendant; I do not know the reason why the amount was struck out of this account against Mr. A. Lyons, now produced, unless it was that it had been previously arranged between the parties to pay the amount between them, which was the amount of the passage-money of Mr. Abraham Lyons; the defendant said he had paid his share, but would not explain any thing about the matter; I am sure he was asked by the plaintiff respecting it several times but refused to give any answer whatever; the plaintiff lost temper, and doubting the word of plaintiff he wished to send for Mrs. Samuels; the argument that occurred between the parties was not relevant to the point.

Robert Elder. - I have been a clerk in the employ of the plaintiff upwards of 4 years; I have heard the plaintiff tell the defendant that he ought to pay his passage-money; I have heard him say so several times on such occasions, they had previously quarrelled; it was mentioned rather by way of reproach than demand; I never heard the defendant reply to it; he did not deny it; I never heard the amount mentioned.

Henry Freedhoff examined - I was a clerk to the plaintiff at the time the account now produced was presented to the defendant; I made it out myself from the plaintiff's books; the signature is in the hand writing of the plaintiff.

This closed the evidence for plaintiff.

Dr. Wardell addressed the assessors at considerable length on behalf of the defendant, and put in a letter which he read to the court, that had been sent to the defendant in England, requesting him to come to the colony, and intimating that he was in a capacity to befriend him; in consequence of which letter the defendant came out, was well received by the plaintiff, who gratuitously paid his expenses, and although accounts of various magnitudes from small to great had been balanced between the parties, the claim now made was never thought of until a quarrel arose between the parties; the items relating to the passage-money, &c. he was confident would be registered by the assessors, and he was able to adduce ample proof that the undertaking to pay the moiety of the passage money of Mr. A. Lyons had been complied with.

Abraham Lyons examined - I am the brother of the plaintiff and defendant; I arrived in this colony on the 25th of August last; on my arrival, on walking up George-street with the plaintiff, he asked me what my passage-money was; I told him it was £200; he said he would pay that; he said he would endeavour to induce the defendant to pay £100 of it which should be given to our sister, Mrs. Samuels, who came out with me, as a gift; we afterwards met the defendant, when some conversation took place respecting the payment of my passage-money, when it was agreed that the defendant's portion should be given to Mrs. Samuels; I swear I was present when the defendant paid the £100 to Mrs. Samuels; it was at the Governor Macquarie, in Pitt-street; Mrs. Samuels and her son were present also; the observation defendant made on the occasion was, that he was authorised to pay it to her by the plaintiff; I have seen the letter now produced in England; it is addressed to the defendant, inviting him to come out.

Cross-examined by Mr. Wentworth - I don't know that the defendant gave the plaintiff a third set of bills; I remember the plaintiff going into the defendant's house, when some conversation commenced about the £100 which was to have been paid by defendant, when defendant gave plaintiff a piece of paper, but I cannot say what it was; I afterwards went with plaintiff to the counting-house of Messrs. Dawes, Gore, and Co.; I cannot say on what business the plaintiff went there; we returned to the defendant's house, when some angry words arose between them, and the plaintiff threw the paper at defendant; he then took me by the arm, and said, come away; I don't know the subject of the dispute on that occasion; I saw the defendant pay his moiety of my passage-money; I am almost sure it was before the arbitration; I can undertake to say positively it was; I gave the same testimony at the arbitration; in consequence of which, the subject of the £100 was done away with; Mrs. Samuels lived at the residence of the defendant, in Castlereagh-street, and walked down to the Governor Macquarie, to receive the money; the defendant never keeps so large a sum in his residence; I was in partnership with the defendant at the time; our office and stores are on the premises, at the Macquarie Head; I reside there; I am not always there; of course I go out sometimes; I never inspected the partnership books; the defendant has a far greater capital in the concern than I have, and I consider he had a right to appropriate any sum to his private purposes, without my interference; I am certain that the plaintiff told me he had paid the defendant's passage-money, observing that he had come out under circumstances far less favourable than I did, as I had brought a capital with me; he expressed himself in a manner which could leave no doubt on my mind of his having gratuitously paid the passage-money; it was at his particular request that the defendant came to the country; I remember having seen letters in England from the plaintiff, requesting the defendant to come to the colony; I have never quarrelled with the plaintiff, but he has quarrelled with me; he has absented himself from us all; he has endeavoured to oppress us as much as lies in his power.

Mr. Wentworth addressed the assessors on behalf of his client, observing with regard to the line of defence set up by the defendant, that the plaintiff had gratuitously paid the expenses of defendant to this colony, it was not to be supposed that the could, or intended to do so ad infinitum, yet it appeared by the evidence of the laundress that accounts had been rendered to and paid for by the plaintiff, a considerable time after defendant had been established in business; up to the time when he became the proprietor of the public house, called the Leather Bottle, the plaintiff had paid these accounts, and properly carried them to the account of the defendant, not doubting that in gratitude he would repay him.  As to the evidence of Mr. Abraham Lyons, an interested witness, and the partner of the defendant, it was very clear that it was not founded on truth; the hesitancy with which he deposed, at first, to the payment of the money, before the period of the arbitration, and the gradual arrival at an assurance of the fact, proved that he wished to shape his evidence to his convenience; the whole affair regarding that payment had been a more farcical manoeuvre subsequently to the arbitration, to enable the parties to appear in the witness box to depose to the payment of the money.  Why were the other parties stated to be present on the occasion not subp¿naed in support of that witnesses testimony?  Their absence was an ample proof that they could not support it conscientiously, and the defendant knew better than to take up arms against himself. He submitted his case to the court and the assessors, relying with confidence in their justice and discernment.

His Honor observed, on leaving the case with the assessors, that it was very much to be regretted that the parties had not disposed of the matter without bringing it into court, as it was one of those cases in which he regretted to be under the necessity of interfering; throughout the whole the plaintiff had displayed a goodness of heart, which, although against his success in the present issue, was highly creditable to him; finding himself in a prosperous situation in this colony, the idea of benefiting his kindred suggests itself to him; he addresses a most affectionate letter to them, and they arrive on his recommendation, and at their request he generously defrays the expence [sic]; the length of time the matter rested in abeyance certainly established the fact of the non-intention of the plaintiff to charge the defendant with what he had gratutiously [sic] advanced.  A witness had told them that the plaintiff had reproached the defendant for the non-payment of the passage-money, but not in the way of a demand; and he was of opinion that they must strike those matters out of their consideration.  As to the payment of the £100 by the defendant, no satisfactory proof had been adduced in support of that fact; for the payment of so large a sum as a £100, it would have been proper that the parties should have produced a receipt, an indispensible [sic] document in such a transaction, yet no such document had been forthcoming.  The case was then put to the assessors, who returned a verdict for the plaintiff for the sum of £100.


Forbes C.J., Dowling and Burton JJ, 26 June 1833

Source: Sydney Gazette, 29 June 1833[2 ]


Samuel Lyons v. Saul Lyons. - This was an action of assumpsit, brought against the defendant for the recovery of £100, which he had undertook to pay to the plaintiff, being the half of the passage money of their brother Mr. Abraham Lyons. The case was tried during the present term, and a verdict was returned in favour of the plaintiff.

Dr. Wardell now moved, on behalf of the defendant, that the verdict be set aside, and a nonsuit entered, on the ground that it was not legally binding, as the contract not been reduced to writing; and, secondly, that a new trial be granted on the ground of misdirection by the learned Judge who tried the case.

The Court was of opinion that a new trial should be granted, as it appeared that it had been put to the Assessors in the simple manner of which it admitted. The Court directed that the costs of the case abide the result of the new trial. - His Honor Mr. Justice Dowling observed it was a deed of humanity to grant a new trial; it might be a means of adjusting differences between two brothers.


Forbes C.J., Dowling and Burton JJ,, 6 November 1833

Source: Australian, 11 November 1833[3 ]


Wednesday. - The three Judges took their seats in banco this morning.

Lyons v. Lyons. - Mr. Wentworth moved that the nonsuit be set aside, and a new trial granted in this case, on the ground that sufficient proof had been adduced in support of plaintiff's case to warrant the learned judge in sending it to the Jury, but that his Honor had withdrawn the evidence from the consideration of the Jury.  Dr. Wardell opposed the application on the ground that there was not a tittle of evidence under plaintiff's declaration to go to the Jury.  The Chief Justice was of opinion that the nonsuit was right, and that there was no cause shewn to set it aside.  The first count had been abandoned for want of evidence to support it; the second count set forth the promise of defendant to pay £100, half the passage money of Abraham Lyons and his family to this Colony.  The first objection to this count that struck him was, that there was no legal or written obligation; it was therefore necessary to prove an express promise.  He had applied his mind to the proofs in evidence, and was of opinion that there was not sufficient to support that count.  Such an agreement could not be proved by mere presumption, arising from the most trivial circumstances; it must be established by legal proof.  In the evidence it appeared that as Samuel and Abraham Lyons were going to Mr. Dawes to pay the passage money, they called in upon Saul, when some transactions took place respecting a bill of exchange, but no conclusion could be drawn from that.  Abraham thought it was the third of a bill of exchange, the first and second of which had been sent home to their mother; but nothing could be presumed from that - what fact grew out of it ?  It amounts to nothing, being a distinct transaction.  From the evidence of Plomer, something might have been drawn as to the repayment of the £100; it was the only part of the case on which such a construction could be placed.  He says, "I think it was struck out of a balance account because both parties said, why charge it to Abraham;" but how could that be said to be a promise to repay the £100 on the part of Saul ?  It was a mere circumstance which amounted to nothing.- then the plaintiff's having failed on his special count, resorted to the common count the implied contract on an account stated; but to support this there must be some consideration proved, but it failed for want of proof of legal liability.  Looking at the whole evidence he considered it amounted to nothing, and that nothing had been proved.  He was of opinion that the nonsuit was right.

Judge Dowling was of the same opinion.  The nonsuit was perfectly right.  The first count had been abandoned, and in the second they had failed to prove the contract by defendant to pay half the passage money of Abraham Lyons.  By the evidence, the agreement, if any, was to pay the £100 to Mrs. Samuels.  The evidence to support the account stated had also failed; there was no proof of an original liability or obligation.  He thought the nonsuit must stand.

Judge Burton would give a few reasons why the nonsuit should stand.  Putting out of the question the evidence of A. Lyons, which, if believed, put plaintiff out of Court, what was there in the evidence of Plomer in proof of the contract set forth in the declaration ?  If he had considered there had been a tittle of evidence to that point, he would have sent the case to the Jury. Plomer's evidence went to show that if the money was to be paid to any one, it was to Mrs. Samuel.  There was another piece of evidence.  The plaintiff goes to defendant and asks for £100, but Abraham did not say that he asked for it as half of the passage money; if he had, that might have fixed the transaction.  There was no evidence on the account stated; it was not one of those cases where the law implied a contract as where a tender had been made by one and accepted by the other.  He was still of opinion that the nonsuit was right.


Forbes C.J., Dowling and Burton JJ,, 6 November 1833

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

[p. 194] Assumpsit on a special agreement.  The first count stated that in consideration that plf would pay the sum of 200£. for the passage money of Abraham Lyons & others from London to Sydney on board the S. Brothers, deft undertook to pay 100£. for the use & benefit of one Lydia Samuels.  Averment of payment of the 200£ by Plf, & refusal by Deft to pay the 100£. as agreed.  Second count averring that deft undertook to pay plf 100£. being one [?] of the passage money of Abraham Lyons & others.  Common counts for goods sold & delivered, & the money counts.  At the trial before Burton J. the first count was abandoned there being no evidence to sustain it.  As to the second it appeared in evidence that Abraham Lyons, Lydia Samuels & others, members of the same family & all nearly related to Plf & Deft, came to this colony in the Ship Brothers.  [p. 195] The plf & Deft lived in Sydney.  On arrival plf met his brother Abraham, & in consideration of the large family of the latter, said "I'll pay 200£ for your passage money, & I'll endeavour to get our Brother Saul to pay 100£. to our sister Lydia Samuels."  They then proceeded to Saul's house, & after some conversation between them, which did not appear, plf & Abraham went to the agent of the ship, & paid 200£ for the passage money.  On their return plf & Abraham called again at Sauls.  The plf was in a great passion, & threw a piece of paper at Saul, & went away.  Abraham expressed his belief that the piece of paper was the 3rd. of a set of Treasury Bills, of no use, (first & second having already been sent to England by him in another account) & that the deft had given the plf. that bill at the trial they called at his house on their way to pay the 200£ to the Ship's agent.  The plf & Abraham [p. 196] afterwards had some disputes, which were referred to arbitration.  Before the arbitrator the plf. brought the whole of the passage money 200£. into account against Abraham.  On that question the arbitrator struck the 200£ out of the account, as a voluntary payment for Abraham.  It was then stated, & not proved to the contrary that Saul the deft had paid the 100£, which it was alleged he had undertaken to Mrs. Samuels.  At the trial of the present cause no evidence was offered to shew that Saul had not if fact paid Mrs. Samuals the 100£.  The Judge thought there was no evidence to support either of the special counts.  The first thing abandoned, the only evidence to support the second, was that Samuel s.d to Abraham - "I will endeavour to get our brother Saul to pay 100£ to our sister Mrs. Samuels."  The court averred that Deft promised to pay to plf 100£, whereas, the promise [p. 197] of any was to make a present of 100£ to Lydia Samuels.  Then as to the money counts, he thought that as the counts on the special contract had failed, the plf could not recover, there being no conson to support them.  This was not like the case of a bill of Exchange or a promissory note, where you may resort to the common counts if those on the bill or note fail, upon proof of conson.  He therefore directed a nonsuit.

Wentworth now moved to set aside the nonsuit, & relied upon the evidence in the cause, to support the second count.  He dwelt upon the fact first that the Deft had given the third of a set of treasury bills to the plf, which turned out to be of no value; & second upon the defts admission before the arbitrator that he had promised to pay Mrs. Samuels the 100£, & his assertion that he had in fact paid it; although there was no proof of his statement.  This evidence was at all events [p. 198] sufficient to sustain the common counts.  The case ought certainly to have been left to the jury, but the evidence was withdrawn form their conson.

Wardell contra was stopped by the Court.

Forbes C.J.  I am of opinion that the nonsuit was right.  There was clearly no evidence to support the second count.  If there was any evidence of an acknowledgment of liability on the part of Saul Lyons to pay any body, it was not Samuel Lyons but Mrs. Samuels.  Then as to the common counts there is nothing to support any of them.  There was no pre-existing liability in either plf or deft to pay the passage money of Abraham & his family.  It was a voluntary payment on the part of the plf, & consequently there was no conson to support an implied promise to pay under the money counts.

[p. 199] Dowling J.  I am also of opinion that the nonsuit was right, & I think there was no evidence to be left to the jury from which they would be warranted in drawing the conclusion of a legal liability under the money counts.  To support a liability on the account stated, there must be either an express or implied promise to pay the money to the plf., or some acknowledgment of liability.  Here there was none.  The promise or acknowledgment was to pay Mrs. Samuels & not the plf.  The payment by the plf of the 200£ was merely voluntary, & no legal obligation on him to pay it.  He only said "Let us endeavour to get Saul to pay the 100£. & give it to Mrs. Samuels."  There was no obligation on the part of the deft to pay that to him, & if he did promise to do so, it was a promise to pay her, & not the plf. -

Burton J concurred.

Rule Refused.[4 ]



[1 ] See also Australian, 14 June 1833; Sydney Herald, 13 June 1833; Dowling, Proceedings of the Supreme Court, Vol. 84, State Records of New South Wales, 2/3267, p. 75.

[2 ] This was recorded by Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266 as follows:

``[p. 114 Marginal note in manuscript: "See Ante vol. 84 75."] The Court on motion for a new trial was clear that this was not a case within the Stat of Frauds requiring a note in writing, but granted a new trial with leave to amend the declon according to the special circes of the case, on payment of costs of the amendmt.

``The Costs to abide the event."

[3 ] Despite the optimistic conclusion of Dowling J. in the previous decision, the brothers were back in court in October 1833.  Samuel once again sued Saul for the £100, but Burton J. accepted the argument of the defence that the counts alleged had not been made out that there had been an explicit engagement that Saul should pay the money direct to Samuel.  That is, the defendant won the action by obtaining a non suit.  Once again, there was an appeal to the full bench.  See Sydney Gazette, 2 November 1833; Sydney Herald, 4 November 1833; Australian, 1 and 4 November 1833.  According to the latter, Burton J. held that if the special counts (those based on explicit agreement) were not sustained, then the plaintiff could not resort to common money counts.  The unsuccessful plaintiff then sought to have the nonsuit set aside.

[4 ] The Australian, 11 November 1833, then criticised this decision, saying that the matter should have been left to the jury. 

On 14 June 1833, the Australian said that a point of law was taken by the defendant's counsel, and reserved by the judge as to whether the unwritten promise to pay the money was void because of the statute of frauds.

Published by the Division of Law, Macquarie University