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

Girard v. Windeyer and Searle [1838] NSWSupC 64

interpleader - costs, Crown obligation to pay - Manning River - trover

Supreme Court of New South Wales

Dowling C.J. and Willis J., 16 February 1838

Source: Sydney Gazette, 1 March 1838

Girard v. Windeyer. - The Attorney General moved that the defendant be allowed to plead nunc pro tunc, and that in the mean time all proceedings be stayed.  This case, the learned gentleman said, arose out of the detention of some cedar which had been cut on government land, and for which there were several claimants.  The proceedings were under the interpleader act.  Rule nisi granted.


In banco, Dowling C.J., Burton and Willis JJ, 26 March 1838

Source: Sydney Herald, 29 March, 1838[ 1]


Girard v. Windeyer. - Mr. a'Beckett, who appeared for the plaintiff, stated that this was a motion under the interpleader act, under which the plaintiff had been called upon to show cause why the Attorney General, on behalf of the Crown, and James Searle should not be allowed to defend the action.

The Attorney-General said, that it appeared upon the trial of Walker and others for stealing the cedar which formed the subject of this action, that the greater portion of it had been cut on Government ground, and that part of it had the Government brand on, which had been defaced; the action being against Mr. Windeyer, who had seized it.  When acting as Police Magistrate: under these circumstances he claimed to be admitted to defend the action in room of Mr. Windeyer.

Messrs. Foster, Windeyer, and Raymond appeared in behalf of Searle, who alleged that the cedar was cut by the belonged to him, and therefore he claimed to be admitted to defend.  Allusion was also made to the claims of the party who brought the cedar from the M'Leay River, and who had a lien on it for the freight.

A lengthy discussion took place between the Bench and the Bar on the question of admitting the Crown to defend, at the end of which their honors delivered then opinions seriatim.

Mr. Justice Willis considered that the Court being by the act converted into a Court of Equity for the occasion, that before they proceeded to judgment they ought to have all the parties interested before the Court, and as it appeared that the parties who brought the cedar from the M'Leay River had a lien on it, they ought to be represented in Court before judgment was given.  With respect to the right of the Crown, although the Attorney-General could not be punished for contempt, yet he considered on the authority of several cases that the Attorney-General ought to be served with a notice, and be allowed to come into Court if he pleased.

The Chief Justice said that he thought Mr. Windeyer ought to be removed from the record and Searle substituted.  He was clearly of opinion that under the Act the Queen's Majesty could not be allowed to come in, as it was quite manifest that private persons only were intended to be admitted: the Court was empowered by the act to order a party to pay costs, but the Crown never pays costs and therefore an order to that effect would be innocuous.  As for the lien of other parties, he was clearly of opinion they could not take cognizance of the claim of any one not mentioned, in the notice filed by the defendant.

Mr. Justice Burton was clearly of opinion that the Court could neither wait for parties not before the Court, nor yet admit the Crown to defend.

The order of the Court was that Searle be admitted to defend in the room of Mr. Windeyer - that the cedar be sold under the direction of the master, and that the proceeds, after paying Mr. Windeyer's costs, be paid into Court to await the result of the trial.

The Attorney-General said, that he should commence an action against the party who gained the cedar.


Burton J., 29 June 1838

Source: Sydney Herald, 2 July, 1838


Friday. - Before Mr. Justice Burton and a Special Jury.

Girard v. Searle. - This was an action of trover to recover a certain quantity of cedar - the facts of this case which have been often before the public are these.  Mr. Girard's agent, Mr. Hayes, was in possession of a large quantity of cedar at the Manning River.  The defendant Searle accompanied by a gang of men, took a quantity of this cedar away by force alleging that it was his and had been stolen by Maddox, a former agent of Mr. Girard's; this cedar was put on board several vessels and brought to Sydney, where a large quantity of it, upwards of one hundred thousand feet was seized by the Police, on the affidavit of Hayes charging Searle with robbery.  Searle and five others were tried for stealing cedar the property of Girard, but as no particular plank could be identified, His Honor the Chief Justice held that the the [sic] case had failed, and the prisoners were dismissed.  Girard and Searle then claimed the cedar from the Police, and upon an application to the Supreme Court, under the Interpleader Act, Searle was made defendant.  From the absence of Mr. Hayes the plaintiff could not prove what quantity of cedar was taken away, the only witness who swore to the fact, said that from fifty to one hundred thousand feet were taken.  His Honor said that Girard being in peaceble [sic] possession was entitled to a verdict for so much of the cedar now in the possession of the Police as he had proved to have belonged to him.  If the Jury could not find any evidence by which they could come to a verdict that was satisfactory to themselves, His Honor said he would take a step that would relieve them.

The Jury retired for about a quarter or an hour, and said that they could not come to a verdict.

The parties then agreed to withdraw a juror.  (We understand the matter has now been referred to two of the Jurors for arbitration.)[ 2]



[ 1]See also Sydney Gazette, 3 April 1838.

[ 2]In 1839, Girard successfully sued Searle for the value of the cedar, and obtained damages of £750: Sydney Herald, 20 March 1839.

Published by the Division of Law, Macquarie University