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

Lyons v. Morgan [1837] NSWSupC 32

civil procedure, Privy Council, new trial, appeals, auction

Supreme Court of New South Wales

Burton J., 19-21 June 1837

Source: Sydney Herald, 22 June 1837[ 1]

Lyons v. Morgan. - This was an action of assumpsit brought to recover the sum of £1,018 5s. 6d. for work and labour done as an auctioneer, and for cash advanced and lent.  When the case was called on, His Honor put it to the counsel for the plaintiff to say whether they expected to receive more than £500, for if they did, he must have all the evidence taken down by the officer of the Court.  Mr. Windeyer said that they must obtain a judgment for more than that, as the defendant had admitted that sum was due; but submitted that the Act only rendered it imperative on the Judge to have the evidence taken down if an application was made by one of the parties; but His Honor read a portion of the Act, which says, that in all cases where the amount of damages claimed exceeds £500, and the case is not tried by a jury, the Judge shall direct the evidence to be taken down by the Clerk or other officer of the Court.  His Honor said, that although he had made up his mind never again to recommend a reference, he would inform the parties that when the verdict was returned, in case any improper evidence had been received, or any misdirection took place on the part of the Judge, no new trial could be moved for; the only appeal would be to the King in Council.  The plaintiff's counsel offered to refer the matter to arbitration, but the defendant who was in Court, refused, and the case was proceeded with, the whole of the evidence being taken down by the Clerk of the Court.

After Mr. Windeyer opened the pleadings, Mr. Foster stated the case to the Court.  The plaintiff, as was well known, was lately an auctioneer in an extensive way of business in Sydney, and the defendant a merchant residing in the same place.  In July last, the defendant being in want of money, went to the plaintiff and requested him to advance him the sum of £500, on account of seventeen allotments of land in Darling Harbour, which the plaintiff complied with, and the defendant handed him the deeds of the allotments, with power to dispose of them by auction.  In the month of August, they were sold to Captain Brown, of the Proteus whaler.  On the day of sale, Mr. Morgan requested Mr. Lyons to pay the money, which lots 16 and 17 had brought, to Mr. Michael Phillips; the allotments were sold for upwards of £1,200, and Mr. L. handed Mr. Phillips £416 on account.  It was afterwards discovered that Morgan had not a sufficient title to the land, and the sale was declared off.  The present action was brought to recover these sums, together with the amount of the commission for selling, the orphan dues, advertising, and other expenses.

After the examination of one witness, it was found that the case could not be closed that night, and it was adjourned to Tuesday morning.

Tuesday. - The Court was occupied the whole day in hearing the case of Lyons v. Morgan.

Wednesday. - Lyons v. Morgan - The facts as opened by Mr. Foster having been proved, it was contended by the defendant that the money paid to Phillips should not have been paid, as the order expressly was that he should be paid out of the proceeds of the land, and that the order for paying it was countermanded before any money was paid.  Mr. Purkiss, Mr. Lyons' clerk, stated, that the order for the non-payment was received by Mr. Lyons while he and Phillips were in the room, but that he believed the money had been paid.  His Honor, in putting the case to the Assessors, said, that he was quite clear that as the order was to pay Phillips out of the proceeds, that Lyons should not have paid him before he had the proceeds in his hand, and could not recover from Morgan.  With respect to the circumstances of suspicion, His Honor said, he was bound to say there was not a shadow of proof of any collision between Lyons and Phillips.  The Assessors returned a verdict for the plaintiff - Damages £602 13s.

Counsel for the plaintiff, Messrs. Foster and Windeyer; for the defendant, the Attorney-General. 


[ 1] See also Australian, 23 June 1837, which included the following: ``Mr. Justice Burton indicated, that under the Act of Parliament, commonly called the New South Wales Act, it was provided that on any issue being tried before Assessors, where the damages amounted to more than £500, neither of the parties, although never so dissatisfied with the verdict, could avail himself in the Colony of the misdirection of the presiding Judge, or the improper finding of the Assessors.  The only appeal in such an event being to the King in Council, an expensive mode of obtaining redress, and at this distance from the seat of the British Government, a most tedious one.  It therefore behoved the Court to exercise more than ordinary caution in trying the present case.  The Clerk of the Court (Mr. Bradley) was, under His Honour's direction, ordered to take minutes of evidence."

On earlier proceedings, see Sydney Herald, 20 February 1837; Sydney Gazette, 21 and 23 February 1837 (unsuccessful attempt to have evidence taken from Michael Phillips who now resided in Van Diemen's Land); Sydney Gazette, 11 March 1837; Australian, 14 March 1837.

Published by the Division of Law, Macquarie University