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

Farringdon v. Elder [1834] NSWSupC 75

bailment, voluntary - agency - bushrangers

Supreme Court of New South Wales

Dowling J., 18 June 1834

Source: Sydney Herald, 26 June 1834[ 1]

Farringdon v. Elder. - This was an action brought to recover the sum of £131, with which plaintiff had entrusted defendant, for the purpose of making certain purchases and payments on his account, which commissions had not been executed by the defendant, nor had the money ever been returned.  The declaration contained several counts.  It appeared that the parties were residents of Parramatta, and previously to the transaction out of which the present action arose, were on the most intimate terms;  in January last plaintiff requested defendant, who was in the habit of visiting Sydney once or twice a week, to purchase-eleven tons of flour for him, at Mr. Barker's steam-mills, and also to call upon the secretary to the Australian Steam Conveyance Company for the purpose of paying an instalment on six shares; it was proposed as a measure of prudence to send the money to Sydney by another conveyance, where the defendant would receive it, the roads being at that time much infested by Bush-rangers.  On defendant's arrival at Sydney, he obtained the money, consisting of two £50 notes, one £20, one £10, and one £1, and went to Mr. Barker's to procure the flour agreeably to his instructions, but he was there informed that such a quantity would not be disposed of to any one person; he made use of much entreaty to induce Mr. Barker to let him have the flour for his friend, who was an old customer, but without effect.  At the Office of the Steam Company the defendant met with no better success, the secretary refused to receive the money, so having transacted his own business he returned to Parramatta, taking care to secure the money from the Bushrangers by depositing it snugly in his stockings; on his arrival at home, his first care was his friend's money, when, alas! it was discovered that there was a large hole about six inches long in the stocking, out of which it had worked itself on the road; when the succeeding paroxysms of surprise, amazement, and despair had subsided, he with a heavy heart called upon his friend, the plaintiff, to inform him of the melancholy circumstance, and after an expression or two like ``well if its gone, it can't be helped, better luck another time," the matter for that time rested; the defendant, however, caused an advertisement to be inserted in the Sydney Gazette, directing one insertion, stating that he thought that would be sufficient; the numbers of the notes, however, not having been stated, it was re-inserted, with the addition of the two £50 notes, one being 30,265 and the other 30,395; but by some awkward mistake, the number 30,205 was inserted instead of 265; defendant took a great deal of trouble to recover the notes, called at the banks, and otherwise endeavoured to stop their circulation; but, notwithstanding all this, a certain village lawyer, was ill natured enough to express his opinion to plaintiff, with one of his accustomed knowing shakes of the head that there was ``something rotten in the state of Denmark," and advised the plaintiff to a criminal prosecution, but as that course was deemed rather unprofitable, it was allowed to be more judicious to have recourse to a civil action, for the recovery of the lost money, and the present action was brought.

Mr. Wentworth, who appeared on behalf of the defendant, contended that his client was entitled to a verdict, inasmuch as he was acting as a bailee, without fee or reward, and was not to be called on to account for what had been lost, whilst exercising that reasonable care and attention to its security, which could but have been exercised by the plaintiff himself; the learned gentleman called the attention of the Assessors to the  anxiety of the defendant to appropriate the money to the purposes required by the plaintiff which endeavours had been unfortunately frustrated; it would be shewn by this circumstance alone how unnecessarily and wantonly the character of the defendant for integrity had been called in question, his whole conduct on the occasion had carried with it indubitable testimonials of the honesty of his intentions, and it was in his power to adduce proof that at the very time defendant had met with the misfortune, a man who resided on the Parramatta Road, and who had never been known to possess sixpence, suddenly appeared in possession of an outfit of wearing apparel to a considerable amount, and it was generally understood that he had found a considerable sum of money on the road; looking at the defendant's respectability of character for upwards of twenty years, as deposed to by respectable witnesses, and his easy circumstance, it is difficult to conceive the probability of his having been guilty of  conduct which has been suggested; with regard to the  present transaction, taking all the circumstances into their consideration, he felt assured of a verdict at their hands.

After a reply, remarkable for its tact and ingenuity by Dr. Wardell, His Honor put the case to the Assessors, remarking that they were not called on to entertain a criminal proceeding against the defendant, the only question for their consideration, was, had the defendant exercised due vigilance over the property which he had taken under his care? if so, he was enittled to a verdict; for it was his duty to inform them, that it was an established rule of law, that where a person acts as a gratuitous bailee, and exercises that reasonable care and attention over property committed to his care, as would be exercised by the owner himself, he was not held to be accountable in case of loss; if on the contrary, they were of opinion that the necessary care had not been taken, they would find for the plaintiff. -  Verdict for plaintiff, £131.

 

Notes

[ 1] For the trial notes, see Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3281, vol. 98, p. 88.  At p. 107, Dowling began the record of his summing up as follows:

``Where a person undertakes to carry money safely & securely, he will be responsible for the loss of it through his neglect, though he has not any reward for his labour.

``Has there been negligence in the carriage of this money.

``If lost - still if lost through his negligence he is liable.

``Carry money to this amount in his stocking with a hole in it?  Is that or not negligence.

``A bailee without reward is certainly not liable, if he takes the same care of his neighbours goods as of his own."

 

Published by the Division of Law, Macquarie University