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

Conolly v. Flanagan [1834] NSWSupC 35

imprisonment for debt - felony attaint - medical attendance

Supreme Court of New South Wales

Forbes C.J., 5 March 1834

Source: Sydney Herald, 10 March 1834[1 ]

Conolly v. Flanagan. - This action was brought to recover the sum of £56, for goods delivered and work done.  The declaration was filed to that effect, and defendant pleaded the general issue, on the grounds that at the time these transactions took place, plaintiff was a transported felon.  Mr. Wentworth for the plaintiff and Mr. Foster on the part of the defendant.

Patrick F. Egan deposed, that he knew the parties in question, and was superintendent of the defendant's farm in 1829 and 1830.  Had called upon plaintiff repeatedly to give medical attendance on defendant's family.  He stated several articles of value, such as a gun, a sword, a medicine chest, and some tobacco, having been supplied to defendant by plaintiff, and that Conolly had been, to witness; knowledge, accustomed to attend on Flanagan's family for upwards of a year.

Mr. Sheehy sworn, deposed, that he is plaintiff's attorney.  He made an application at request of plaintiff, to defendant, on the 16th of October, 1833, for the payment of the bill of £56; but did not hear from defendant till the 19th of the same month, when he stated that he much regretted Conolly should have adopted such measures to recover his money, viz. that of employing an attorney, and that he would not speak to Conolly again.  That he was willing to give a bill of three months for the balance, on deducting the amount of his bill for supplying plaintiff with sundry articles of wearing apparel.  Defendant asked for a bill of particulars, and witness referred him to plaintiff.  No arrangement taking place, a capias was issued and defendant was arrested.

Mr. Wentworth here observed, that he did not consider that there was anything ungracious in the plea adopted by the defendant.  The parties had been, up to the day in question, on very intimate terms with each other.  He commented on the unfairness of acting which had been observed by the plaintiff, and declared it to be anything but gentlemanly.  The evidence adduced was in nowise applicable to the bill of particulars before the court, which bill contained charges for wine, bitters, wood, physic, tobacco, and sundry other articles, singular in their nature for a medical man to supply, jumbled together; besides, there was a set off on the part of defendant, in support of which Mr. W. called.

Michael Hanam, who deposed that he had lived with defendant, and was accustomed to work for him; that on several occasions he had heard in the workshop that the other men were making clothes for Mr. Conolly; but he never saw the delivery of them; he stated he could not read nor write, and that all he knew was from hearsay; he had been given to understand that at one time his master had supplied Mr. Conolly with a blue coat, a Marseilles waistcoat, and cassimere trowsers, and that he had seen Mr. Conolly wearing them.

Peter Conolly, another servant of defendant's proved that on one occasion he had waited on plaintiff, in company with his master, with a suit of clothes; but does not remember what clothes they were; plaintiff tried them on and gave witness a glass of grog for his trouble.

This was the close of the defence.

An admission was here handed into Court, made by Mr. Sheehy, that the plaintiff, Conolly, arrived in Van Dieman's lane, in 1824, under sentence of transportation for life.

Mr. Gurner then read the pardon to the Court, which was dated the 14th September, 1832.

Mr. Wentworth observed, that the medical attendance &c. had been granted in 1829 and 1830, a long time before the date of the pardon before the Court.  That in the case of Bullock v. Dodd, it is laid down, that no convict has a right to hold property, and that to give any party the right of bringing an action respecting circumstances which occur before a conditional pardon was received, there should be words of restitution inserted in that pardon.

Mr. Foster contended, that his client was entitled to a verdict on the grounds, that a promise, subsequent to the pardon, had been given by defendant to pay the balance due to plaintiff.  He then quoted the 26th sec. Geo. IV. chap. 64, that persons who have received conditional pardon, can bring an action for the protection or recovery of property since his or her conviction.  This point was reserved for the opinion of the Court.  And after his honor had explained the nature of the case, a verdict was given for the defendant.

 

Forbes C.J., Dowling and Burton JJ, 12 March 1834

Source: Sydney Herald, 20 March 1834

 

Conolly v. Flanagan - ordered to lie over till Saturday, on motion of plaintiff, that he was not decidedly prepared to produce necessary evidence.  Mr. Conolly complained that Mr. C. H. Chambers had caused him to be arrested, (on coming into Court to make the motion) on an execution from the Court of Request. - Ordered to be discharged on making an affidavit, which he did in Court.

 

In banco, 1 April 1834

Source: Sydney Herald, 3 April 1834

 

Conolly v. Flanagan. --- In this case a motion was made for a new trial.  His Honor read the evidence pro and con. after which, Mr. Conolly addressed the Court in person, and Judge Dowling stated it to be the opinion of the Court that the verdict ought not to be disturbed.  Motion refused.

 

Notes

[1 ] See also Sydney Gazette, 8 March 1834; Australian, 7 March 1834.

Published by the Division of Law, Macquarie University