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

Watkins v. Solomon [1834] NSWSupC 68

felony attaint - convict, proof of conviction

Supreme Court of New South Wales

Dowling J., 5 June 1834

Source: Sydney Herald, 9 June 1834[1 ]

A New Way to Pay Old Debts. -

Watkins v. Solomon. - This was an action of assumpsit brought to recover the sum of £30 18s. 7d., being the principal and interest due on a promissory note drawn by defendant in favor of John Richards, and endorsed by the plaintiff, and a book account for occasional entertainment at the Talbot Inn, kept by plaintiff, where defendant, who resides at Campbell-town, used to put up during his visits to Sydney.  Defendant finding some time since that plaintiff had put the case into the hands of Mr. Poignand, his solicitor, paid the sum of £13 on account, and begged that time might be allowed him, when he would liquidate the remainder.  A short time subsequently to that payment, the Act of Parliament relating to the legal disability of convicts to hold property, was promulgated in this Colony, and defendant conceiving that the present plaintiff, a free subject, was a mere nominal party in the transaction above named, acting for and on account of John Richards, a prisoner of the Crown, to whom only he was responsible, he might, by availing himself of that circumstance as a ground of defence, evade the payment altogether.  Several witnesses were examined on the part of the plaintiff, proving the fact of the dealings between the parties, all of whom underwent a rigid cross-examination by defendant's counsel, for the purpose of eliciting from them, that although the plaintiff, Watkins, was the ostensible keeper of the Talbot Inn, John Richards was the actual lessee, conductor, and proprietor, to whom moneys, the proceeds of the house, had been paid by the servants from time to time, and that he in fact, always assumed the general management; the plaintiff in this case having no interest in the concern, further than receiving a low salary for the use of his name to the license, the colonial law prohibiting prisoners of the Crown from keeping Public Houses.  Several letters were put in which had been written to defendant by John Richards, and which bore his signature, demanding a settlement of the long standing account.  These letters were admitted by Mr. Davidson, clerk to Mr. Richards, in his Coach Establishment, by whom they were written, not to have been shewn to the plaintiff on those occasions.

Mr. Foster objected to the validity of the documents put in as proofs of conviction, being mere reports of cases tried in the Colony; the record of conviction alone could be admissible as evidence in this case.

The Counsel for the defendant argued that such documents being the only and best evidence that could be adduced, the Court was bound to receive them as such, as in the case of a lost record; a report of trials and convictions signed by the presiding Judge, is substantial evidence of a conviction.

Mr. Foster observed that it was certainly a new way to pay old debts, presenting plaintiff with a record instead of the current coin of the realm; but in this instance he felt happy that such an object would be defeated, no document adduced being admissible as proof of the legal disability.

His Honor, in putting the case to the Assessors, observed this was a case, the only defence to which, was that the property in the claim, vested in a party named John Richards, who was a prisoner of the Crown, and was therefore legally disqualified from acquiring or holding property.[ 2]  If they were satisfied that he was the party possessing the sole interest in the transaction, under such circumstances, he would direct them to find a verdict for defendant; but he was of opinion that neither of these circumstances had been shewn.  The defendant himself had acknowledged the present plaintiff as the party with whom he was transacting business, and had even begged mercy in withholding proceedings in order to allow time for the payment of the balance; indeed the mere fact of the delivery of a promissory note is sufficient to lay the property in a party holding it.  Much weight had been laid on the circumstance of the active part taken by Richards in the establishment of the plaintiff called the Talbot Inn; but it was a well known fact, that not unfrequently, confidential servants assume more airs of authority to strangers than would be employed by their masters, sufficiently so to make them appear as the actual proprietor of an establishment, particularly where their principal happens to be an illiterate person, and unacquainted with the details of business; but it was for them to consider, from the evidence which had been adduced, whether the property were properly laid in the plaintiff, or whether Richards were the party of capital and credit; and from his legal disability to hold a license, he had availed hinself [sic] of the name of the plaintiff, and having under such circumstances become the creditor of the defendant, and finding he could not maintain an action against him, had, by a sort of fraud, assigned the ownership to the plaintiff's he held that with regard to the proof of conviction, the same had not been legally established, inasmuch as the record of such conviction had not been produced; he apprehended that the Act of Council on the subject was tied up merely to proof of conviction in the Mother Country, and did not apply to convictions of the Colony.  If, therefore, they were of opinion that Richards was not serving under any sentence as a transported felon from the Mother Country at the time the claim sued upon accrued, they were bound to exclude the documents puts in as proof of his conviction from their consideration.  The Assessors found a verdict for plaintiff.



[1 ] See also Australian, 6 June 1834; Sydney Gazette, 7 June 1834.  The trial notes are in Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3281, vol. 98, p. 41; and see 2/3276, vol. 93, p. 111.  The Australian noted that Mr Gurner was called to produce an instrument from the records of the Supreme Court of New South Wales, noting that in 1820 Richards had been convicted of feloniously receiving stolen goods.  An article from a ``Correspondent" published in the Australian, 10 June 1834, noted that Richards was also a serving transported convict.

See also Sydney Gazette, 13 March 1834; Australian, 15 March 1834; Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3278, vol. 95, p. 183, reporting an earlier action between these parties, on the promissory note.  The defence was that the hotel was occupied by John Richards, an assigned prisoner servant of Watkins.  Richards was the real owner, not Watkins, said the defendant.  This defence succeeded as the assessor's verdict was for the defendant.  A new trial was subsequently granted: see Australian, 7 and 14 April 1834.

[2 ] The Australian, 6 June 1834, reported that the ``learned Judge ruled that the instrument produced could not be received as evidence of the conviction of the party, and put the case to the Assessors; first, whether upon the evidence adduced they should be of opinion that the legal property in the present claim was in the plaintiff or in John Richards; if in the former he would be entitled to recover the amount sought; if in the latter, were the Assessors satisfied that he was at the time the account accrued, a transported convict from Great Britain serving a sentence in this Colony, if they should be satisfied of that fact, and that the name of Watkins was used for the purpose of him, the defendant would be entitled to a verdict.  But His Honor informed them that in point of law the legal disability sought to be established by the defendant is not sufficiently proved, unless a record of conviction be produced and substantiated.  The proof of disability in this case is different from the case of a transport from Great Britain".

Published by the Division of Law, Macquarie University