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

Stephen v Brigstock [1833] NSWSupC 43

ne exeat regno - replevin - passenger on ship - evidence, witnesses in England - equity, damages not recoverable - damages, unavailable in equity - law and equity, separation of - detinue - trover

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 1 June 1833

Source: Sydney Herald, 3 June 1833[ 1]

Stephen v. Brigstock. - Mr. S. Stephen moved the Court to grant a writ of Ne Exeat,[ 2] endorsed for £300, and directed to the defendant until answered, or that a writ of Replevin be issued, directed to the Sheriff, ordering him to replevy the goods of the plaintiff, he undertaking to prosecute the action of replevin with effect.  The following were the circumstances out of which this motion arose: - In August last Mr. John Stephen entered into a contract with a gentleman in London, named Bottomley, owner of the Westmoreland, (of which defendant is master) to carry himself and family to this Colony for the sum of £250, one hundred to be paid down, and the remainder by a bill on a person in Sydney.  In the beginning of September Mr. S. and family went to Gravesend, having been informed that the vessel was on the point of sailing, but were delayed there for some time, when she sailed, having on board eighty persons.  Mr. John Stephen being dissatisfied with the treatment on the voyage, gave notice, on arriving here, to the party on whom he drew the bill for £150 not to pay it - in consequence the defendant detained plaintiff's property, as agent for the owner, valued at £300, and contended that he was not answerable for the provisioning of the ship, the contract not having been made with him.

The Court could see no part of the case in which there was any equity at all; the contract having been entered into between Bottomley and the plaintiff, and not the defendant, there was a failure in that contract, that was a foundation for an action at law, and not an equitable foundation, the Court were always very delicate in using Ne Exeat, it was at all times a dangerous weapon, but in this case perfectly unmanageable.  Then as to the second application for a writ of Replevin, they would take a little time to see if they had the power, and how far it should go; they would give judgment on an early day.


Forbes C.J., Dowling and Burton JJ, 3 June 1833

Source: Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266[ 3]


[p. 25] [Burton at N.P. delivered the opinion of the Court & ordered a writ of replevin to issue.]

Forbes CJ.

I have no doubt that replevin lies in many other cases than those in which it is usually sued out, and that the plf may have it if he wishes, but I doubt how far it will be of any avail to him in the case disclosed upon his affidavit, - the original taking (or rather the receiving on board of the Westmoreland) being lawful & the detaining merely unlawful.  2 Wilson. 355.  If however, after tender of the sum, if any, admitted to be due, the detainer is continued, upon the ground of lien, I have no doubt that the extent of the lien,  might be examined & inquired into ex part of the June.  Vin Ceb. Replevin F. 2. 3.

Francis Forbes.

[p. 26] Burton J.

I have no doubt that any party complaining that his goods are unjustly taken by another (and an unjust detention is an unjust taking) may have a writ of replevin directed to the sheriff for a delivery of the goods upon security, of common right.  How far this remedy may avail in the particular case before the Court is quite another matter.  A lien gives a special property even agt. the party having the general property, & of the other party be well advised, & the sheriff knows his duty, there would be no deliverance in the present case.  However the parties must litigate their differences according to their abilities.

[p. 27] Dowling J.

concurred in the view taken of the matter, & it being suggested that the vessel was about to sail immediately, it was agreed amongst us, that Burton J. sitting at Nisi Prius should direct the writ to issue, leaving the parties to take such cause in the matter as they should be advised.

See post for the notes of the application.


Forbes C.J., Dowling and Burton JJ, 1 June 1833

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

[p. 61] [Replevin lies of all goods in law fully taken whether they believe cattle or dead chattels Comding.  Repev. A.  So if cattle are taken damage feasant & detained after sufft. amends he may have replevin for the wrongful detainer.  F H. N. B 69 G.-]

The plf had entered into a written contract in London with Bottomley, the owner of the ship Westmoreland, of which the deft was master, to convey himself & family to New South Wales for the sum of 250£.  The sum of 100£. had been paid the owner in London, & on arrival, [p. 61] the plf undertook to get a good bill on a friend in New South Wales, accepted for the remainder.  The owner undertook to find & provide the plf & family with such necessary comforts & accommodation as were usually provided for cabin passengers in a first class ship sailing on these voyages, whereas in breach of such agreement the plf & family had been improperly treated in a variety of particulars enumerated.  On arrival the plf refused to procure the acceptance for the remainder of his passage money - whereupon the deft refused to deliver up the plf's baggage valued at 300£, & retained the same as agent of the owner, for his lien as a common carrier.  It was supposed that the deft was a part owner of the vessel, though his name was not [p. 62] on the ship's Register.  A bill of discovery had been filed against both parties to ascertain this point: & now in the meantime,

S. Stephen moved either for a writ ne exeat, against the Captain as agent of the owner, indorsed to hold him to bail in the sum of 300£ until answer put in or for a writ of replevin to the Sheriff commanding him to deliver the goods to the plf upon his giving security to return them if he did not prosecute his suit with affect.  He cited Hammonds N.P. Replevin 406. 1 Maddon. 18.

Forbes C.J.  As to the application for a writ ne exeat against the master, I see no Equity disclosed in the case to authorize such a proceeding.  The original contract was made in London between the plf & Bottomley the owner, there resident out of the jurisdiction of this court.  The contract may be the subject of an action at [p. 63] law for unliquidated damages for a breach of it, but no equity is disclosed, for which a Court of Equity could afford relief.  It is alleged that the deft, as master, is a part owner of the vessel with bottomrey & a bill of discovery is filed against both to ascertain that fact, & we are called upon to issue a writ of ne exeat against the Captain until both shall put in an answer.  We cannot adopt so dangerous a proceeding, which might have the effect of detaining the captain in this country till dooms day.  As to the alternative part of the application, calling upon the court to issue a writ to the Sheriff commanding him to replevy the plf's goods, I do not at present see my way very clearly on that point.  In the case of Dove v Wilkinson (2 Starky) Lord Ellenborough intimated "that the bringing an action of trover was not the most convenient remedy in a case of this nature, & said that he had heard Mr. Wallace express his surprize that the remedy by replevin was not more frequently resorted to, by means of which the party might obtain possession of the specific chattel of which he had been deprived, instead of an action of trover in which he would recover damages only."  There is a query in the 8h. Ed of 'Tidds' Practice whether replevin lies for damage feasant.  There is a case where replevin was held to lie for a ship at sea; but whether replevin will lie in a case like this, is a point I should like to look into.

Dowling J.  There is clearly no Equity in this case.  All the questions arising are purely matters of law.  The breach of contract [p. 65] on the part of the owner is one cause of action.  The detention of the luggage by the master is another, which will be the ground of an action of trover, in which his lien, which is purely matter of law must arise.  Suppose you have a replevin - there must I apprehend be some proof of an original wrongful taking.  The mere detention for lien, will not be a wrongful taking & seizing.  If your remedy be in trover, must you not tender or offer to perform your part of the contract, either by giving the bill, or tendering so much money as a jury would probably under all the circumstances deem a a [sic] sufficient compensation for the imperfect accommodation of the plf & his family.  I see no objection to the granting [p. 66] of a replevin, but the plf [?] be well advised, whether that course of proceeding will afford him a sufficient remedy.

Burton J.  This case is clear matter of law.  You cannot turn an action at law into an Equity suit.  All you can do is to file a bill of discovery, but we could not grant a ne exeat, until the owner of the vessel, as well as the Captain put in answer.  The former is out of the jurisdiction of the Court.  The plf alleges a cause of action for contract broken by the owner.  You cant [sic] recover damages in Equity.  Equity lies to enforce a contract not performed, but not for damages for the non performance of it.  Your remedy for the recover of the specific chattels, is either replevin or detinue, as long as they remain inspecie.  The writ of replevin is a writ of common right & may be sued out commanding the Sheriff to deliver [p. 67] the goods upon security, to return them.  If title be found against plf, can the breach of the owner's contract, be set off against the Captain's lien or the goods for the passage money.

The writ of ne exeat refused.

Cur. adv. vult. on the others point.[ 4]

See Ante p 25.



[1 ] See also Sydney Gazette, 4 June 1833; Australian, 7 June 1833. See also Stephen v. Brigstock, 1835.

On 8 June 1833, another dissatisfied passenger obtained an order to hold Brigstock to bail in order to prevent him from quitting the colony and so avoiding civil liability: Doumourel v. Brigstock, Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266, p. 78.

[2 ] Ne exeat regno: lest he or she leave the kingdom.  An equitable remedy to prevent a person from leaving the jurisdiction.

[3 ] The Australian, 7 June 1833 added  the following to its report of the proceedings of 1 June 1833: ``On Tuesday morning Mr. Justice Burton delivered the opinion of the Court in this case, to the following effect:- That a writ should issue commanding the Sheriff to replevy the goods to Mr. John Stephen, taking security for their return, and for his own indemnity, in case Mr. F. should fail in his proceeding against Captain Brigstock, for detaining them.  The goods have accordingly been delivered up to the applicant."

[4 ] Curia advisari vult: the court wishes to be advised, or wishes to consider its decision.  This means that the judgment was not delivered immediately.

On 28 September 1833, the court granted a commission for the examination of witnesses in England: Australian, 4 October 1833.  See also Australian, 11 November 1833 (order for commission to examine witnesses in England, returnable in 18 months).

Published by the Division of Law, Macquarie University