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

Walker v. Hughes [1839] NSWSupC 71

contract, breach of - contracts, illegal - transportation, history of - sale of goods, non-delivery - convict services, assignment of, between masters - convict services, property in - ``assigned servant," meaning of - convicts, analogy with slavery - Dowling C.J., master of assigned servants - damages, expectation - specific performance - new trial - non suit - Gundaroo - judges, formerly counsel in the same case - statutes, judicial notice - statutes, colonial, legal status of - Privy Council

Supreme Court of New South Wales

Dowling C.J. and Willis J., 2 March 1839

Source: Australian, 5 March 1839[1] 

Walker and others v Hughes and others. -- Mr Sydney Stephen prayed that the rule nisi granted on Saturday last, to shew cause why an injunction should not issue to retrain the plaintiffs from proceeding at common law until an answer was filed to a bill in Equity, should now be made absolute. The grounds of the application set forth on affidavit were these:-- one Nathaniel Lipscombe Kentish, was the editor of a newspaper called the Sydney Times, which was published for a short time, and then ceased, and Mr Kentish applied to the defendant for a loan of money which was given him, and the paper was revived for a short time, but then finally ceased. Mr Kentish, stating that he was in embarrassed circumstances, applied to the plaintiffs for a loan of money to discharge his household expenses, which was granted, and the plaintiffs took Mr Kentish's note of fraud for the amount advanced. When this note became due, Mr. Kentish was unable to take it up, but stated that he was co-partners with several persons in the Times newspaper, of whom the defendants were a party, and he offered to withdraw his own note by granting a note payable by Kentish and Co. This note also became due, and Kentish being unable to pay it, it was presented to the defendants, who denied the partnership, and refused to pay it, upon which an action at law was commenced against them, and they filed a bill in Equity to force the parties to prove consideration. They disclaimed partnership, and relied upon the usual affidavit filed by newspaper proprietors at the Colonial Secretary's Office, which described N. L. Kentish and William Kerr as being sole proprietors.

Mr Justice Willis wished to know if Mr Stephen made an application for a special injunction, or whether the parties were in contempt.

Mr Stephen said that he did not think it amounted to a contempt, and he applied for an injunction on the special circumstances set out in the affidavit.

Mr Justice Willis said that sufficient cause had not been shewn to grant an injunction, which ought not to be granted in any case to restrain legal proceedings, unless very sufficient cause was shewn. The Court would never interfere, unless almost actual fraud were shewn, as in the case of Condell and Thurlow, where it appeared so clearly on the face of the proceedings that a gross fraud had been practised that the Court interposed without hesitation. In the present case it had not been shewn that any fraud he been practised, and he thought the Court ought not to grant the injunction.

Mr Stephen said that with all due deference to His Honor's opinion, he thought that the present was as flagrant a case of fraud as Condell's.

Mr Justice Willis said that it was indecent in Mr Stephen to address him after he had given his decision.

Mr Stephen said he did not find fault with His Honor for interrupting him before he had done with his argument, but he thought that he was entitled to urge to the Court every thing that was for his clients interest; and he respectfully submitted that he was not impertinent in addressing any argument which was relevant to the matter, for the consideration of the Court.

His Honor the Chief Justice said that as a component part of the Court, his mind was not determined on the matters, and he desired Mr Stephen to proceed with his argument.

Mr Stephen contended that this was a flagrant case as that of Condell and Thurlow mentioned by His Honor Mr Justice Willis. The money was obtained by an individual for the conduct of his private affairs; and even, if a partnership had existed, he would not have been justified to use his partner's money for his private expenditure; but where an individual made use of any parties' names without their consent or knowledge, it was equitable that consideration for such a note should be shewn. The plaintiffs had not given notice of answer to the bill, and he contended that it came within the rule of Court, and the injunction must be granted as a matter of course.

His Honor Mr Willis said that he had asked Mr Stephen at the beginning, if the parties were in contempt, and he had replied not. If the application came within the Rule of Court it was a motion of course, and Mr Stephen had been pleading a special cause, and parties were not to be taxed with paying large fees, nor was the public time to be wasted in hearing long speeches of counsel on motions of course.

Injunction granted.


Dowling C.J., 15 March 1839

Source: Australian, 19 March 1839[2] 


FRIDAY. -- Before the Chief Justice and a Special Jury.

Campbell and Walker v. Hughes. -- This was an action brought by Mr Robert Campbell, [certius], and Mr Thomas Walker against Mr J. T. Hughes, for a breach of agreement, damages laid at £10,000.

The declaration set forth that the defendant sold the plaintiffs two thousand ewes, one thousand wethers, three hundred and fifty head of cattle, and twenty-five horses, together with the right to certain stations at Gundaroo, and the use of ten assigned servants for three months for the sum of £5000, to be paid for by equal instalments [sic] of three, six, nine, twelve, and fifteen months, and although the said plaintiffs had paid the defendant the sum of £1000 on account of the said purchase, and although the time at which he agreed to deliver the said sheep and stations had long passed, he had not delivered them, whereby the plaintiffs lost large profits which they otherwise would have made.

It appeared that Messrs James and Francis Cooper, being about dividing their property, Mr J. Cooper sold his share in it to Mr Hughes, and Mr Hughes sold his right in the property to the plaintiffs as specified in the declaration, agreeing to deliver the sheep on the 15th of December, on which day Mr Cooper had agreed to deliver them to him. Mr W. H. Dutton went to Maneroo to receive the sheep from Cooper as the agent of Mr Hughes, and also to receive them from Mr Hughes as agent for the plaintiffs. Mr Dutton arrived at the station on the day specified, when Mr Cooper declined delivering the sheep as Mr Hughes had not signed some documents which were necessary in order to his receiving an annuity, which was part of the agreement between Hughes and Cooper.

The principal witness was Mr W. H. Dutton, who stated that in his opinion at that time the property was of the following value:-- 1000 ewes with lambs by their sides at 65s. each, £3500; 1000 ewes to lamb in March at 55s each, £2500; 1000 head of wethers at 16s. each, £800; 350 head of cattle at £5 each, £1750; worth of the station, £800; value of the services of the men, £50 -- total £10,025. Between the time at which the sheep were sold and the time of their delivery it was proved that sheep rose considerably in price. In the mean time the plaintiffs had given the defendant their bill for £1000, which when it became due they were obliged to pay. Subsequently the parties agreed to take the sheep in the March following, but that agreement was broken off and the plaintiffs commenced this action. Verdict for the plaintiffs, damages £2500.

Counsel for the plaintiffs, the Attorney-General and Mr Foster; attornies, Messrs Chambers and Holden -- for the defendant, Messrs Windeyer and Broadhurst; attornies, Messrs Unwin and Want.


Dowling C.J., Willis and Stephen JJ, 1 June 1839

Source: Sydney Herald, 3 June 1839[3] 


Campbell and Walker v. Hughes.  This was an action to recover compensation for a breach of agreement.  The defendant made an agreement to sell the plaintiff two thousand ewes, from two to four years of age, in lamb, to drop in March, or with lambs by their side, one thousand wethers, three hundred and fifty head of cattle, twenty-five horses, the right of station in Argyle, and the services of ten assigned servants then attending the sheep, for three months; the plaintiffs agreed to pay the sum of £5500, at three, six, nine, twelve, and fifteen months: £1000 was paid on account.  Mr. Dutton was appointed by Messrs Campbell and Walker, to proceed to Argyle to take the sheep on their account, and Mr. Hughes appointed the same gentleman as his agent to receive the sheep from Mr. Cooper, from whom he had just purchased them, but Mr. Cooper refused to give them up, because Mr. Hughes had not signed an annuity bond which he had agreed to, and consequently, Mr. Dutton could not hand them to him himself, as agent for the plaintiffs.  The jury found a verdict for the plaintiffs, damages £2500.

A new trial was now moved for on twelve separate grounds, the principal of which were that the plaintiffs had given no evidence of the breach of the agreement; that the plaintiffs had given no evidence that they had performed the conditions precedent; that the learned Judge misdirected the Jury in several points, particularly that certain letters could not be taken to vary or explain the contract, nor as a waiver of the breach, and that the plaintiffs having paid the sum of £1000 was evidence of their willingness to fulfil the contract; that the damages were excessive, and that the verdict was contrary to evidence and to law.

When the Chief Justice had read his notes, Mr. Justice Willis cited a case in Taunton, to show that if any part of an agreement is contrary to law, although it may not have been noticed at the time of the trial, the Court will notice it.  He mentioned this case because according to the statute 9th George IV., the Court is bound to take notice of the Government regulations, and that part of the agreement about the services of ten men appeared to him perfectly contrary to the Assignment Regulations, which say that no convicts shall be transferred without leave of the Governor.  His attention was particularly called to the facts of the case, from its having been argued before him in equity, and part of his decree was in these words ``the stipulation in the agreement with regard to the men is what I will never decree to be performed."

The Attorney-General and Mr. a'Beckett for the plaintiffs, contended that there was nothing to show that assigned servants are convicts, and that if there were, the defendant was bound by his notice, and the Court could not travel out of it.

Mr. Windeyer for the defendant said, that he certainly omitted at the time of the trial to draw the attention of the Court to the point, but if at any part of the proceedings any party, whether counsel or not, simply as amicus curiae drew their Honors' attention to any thing illegal, such as a traffic in human flesh is, the Court would be bound to act upon it.

Their Honors, after a lengthy consultation, decided that as the point had been brought before their attention by Mr. Justice Willis, it must be decided; but as the case had taken the Court and the plaintiffs' counsel by surprise, they would allow time for them to consider the point and would hear the argument on Saturday morning next.


Dowling C.J., Willis and Stephen JJ, 15 June 1839

Source: Australian, 18 June 1839


Walker and another v. Hughes. In this case Mr Windeyer re-opened the argument, in reply, to the answers to his objections of Saturday last. Mr Windeyer maintained his position that the Court was bound to take judicial notice of the regulations issued by the Governor for the controul of the convicts under the power given him by Act of Parliament; and although it might be very inconvenient for the law thus to be be [sic] left to the caprice of the Governor, as the Attorney General had argued in his reply to the objections taken, yet that power being given, it could not be gainsayed. Mr W. contended, that the regulations being made under competent authority, and the magistrates being bound, by their oath, to enforce these regulations, which they did, daily, in the execution of their duty, the Court was bound to acknowledge their validity for the protection of the magistrates who might otherwise have been acting illegally in their decisions.

After a lengthy argument, in which the Court appeared to take its ground, on the absence of any proof before the Court, that the particular clause, on which the argument was based, was the Governor's regulation, or that there had been any breach of it, admitting it to be such, the Court said, that it would take further time to consider the matter and deliver its opinion on a future day. Judgment reserved.


Dowling C.J., Willis and Stephen JJ, 22 June 1839

Source: Australian, 25 June 1839[4] 


Walker and another v. Hughes.

When the case was called in for the delivery of the judgment of the Court, His Honor, Mr Willis, previous to the judgment, stated his grounds for dissenting from his learned brothers, as follows:

The principles in this case are most important, and to my mind they were so obvious, that the nature of the arguments urged to impugn them, excited a sensation of impatience and regret, which I possibly may have taken too little heed to disguise. To place these principles in what I believe to be their true light, by destroying the web of sophistry (if, indeed, it be even entitled to that name), with which it has been endeavoured to overshadow them, has now become my duty. ``Difficde est proprie communia dicere." If, however, I should be needlessly prolix, or dwell on truisms on the present occasion, it will, at least, absolve me from any desire that ``publica materies privati juris erit" Premising then, that sworn as a Judge to administer, and bound as a subject to obey the law of the land, it would, in my opinion, be contrary to my judicial oath, and my individual allegiance, to concur in any decision which I believed was not strictly in accordance with that law; I proceed to the case before us.

This cause now comes under the notice of the full Court, on a motion for a new trial in an action of assumpsit, in consequence of the alleged misdirection of Chief Justice Dowling, on the trial at law. There had previously been a suit in Equity for a specific performance of the agreement on which the case depends, an agreement, which stipulates for a valuable consideration, for the sale of certain flocks and herds, and stations, and among other things, as follows:-- ``The stations are to be given over to you (i.e. to the present plaintiffs), with the stock, and you are to have `ten assigned servants,' now with the stock, made over to you for three months, with the stations." I, as the Judge before whom the suit in Equity was heard, declared, in pronouncing my decision, that ``this stipulation with regard to the men was, what I never would decree to be performed." In an application for a new trial, the Rule of Practice prescribed for this Court, does not, as in England, require a rule Nisi to be obtained in the first instance, but directs that a notice should be given, specifying the precise grounds on which the applicant relies; and the Judge who tried the cause, having also received such notice, proceeds in the first instance, when the motion is brought on, to read the notes which he had taken at the trial. On this occasion, so soon as the learnd [sic] Chief Justice had read his notes, I deemed it my duty to ask if the stat. 9 Geo. IV. c. 83 (known as the New South Wales Act), and the government regulations respecting assigned servants had been alluded to on the trial, and being answered in the negative, I mentioned the case of Ritchie v. Bou[s]field (7 Taunt. 309), in which it was held by the Court of Common Pleas in England, ``That where, upon the facts proved, an inference of law arises on a statute not recollected at the trial, the Court will grant a new trial, though the point was not taken below." I added, that a strong inference of law arose in my mind, from the facts proved with reference to the New South Wales Act, and the government regulations, and I alluded to what I have already stated, had been declared by me when I heard the suit in Equity, with reference to the stipulation in the agreement respecting the ten assigned servants. I compared the government regulations, with regard to judicial notice, to the Articles of War, and concluded by calling the attention of counsel to these points, in order that such arguments might be urged upon them as might be deemed expedient; declaring it not to be my wish to let any matter influence my judgment which had not previously been submitted to discussion at the Bar. It was then contended, that the parties were bound by their notice, and that the statute could not be adverted to. I insisted on its being a public statute which the Court was bound judicially to notice, and thereupon the other Judges of the Court, stating that the matter came upon them unexpectedly, postponed the case for future argument on this point.

With reference to the practice confining the grounds to be urged for a new trial to those specifically mentioned in the notice; I readily admit the rule, so far as that notice is bound to extend, but I do not think it necessary that any notice should include, nor do I think it could include, without a seeming reflection on the Court, a public statute, which the Judges are at all times bound officially to regard; especially one of such notoriety as the New South Wales Act; an Act from which two of the Judges at least, derive their authority to sit in this Court. If a public statute, or the Acts of the Governor (and consequently his regulations), which are declared by a public Act of Parliament, to be equal, if not paramount, to any statute, were to remain unheeded by the Court, merely on account of an omission in the notice, and because they had escaped observation on the trial, then the decision which is invoked, might, indeed, be in strict conformity with such notice, and the prior proceedings; but directly opposed to that public law which the Judges are bound officially to enforce, and personally to observe.

In the discussion of this case, a learned counsel, Mr Foster, began by stating that he believed no gentleman at the English Bar, when raised to the Bench, ever took any part as a Judge in proceedings, wherein he had previously been employed as Counsel, and endeavoured to cast an imputation on the propriety of my having mentioned what had occurred when I presided on the Equity side of the Court. Now, I must inform my learned friend, that within my own personal knowledge (knowledge which as a suitor I have paid for), more than one Vice Chancellor of England has made decisions in suits, wherein he was counsel at the bar. I would inform him also, as he appears to have forgotten what is said by Plowden, ``That where a Judge has a judicial knowledge, he may, and ought to give judgment according to it;" and I would add, that a Judge is quite as much entitled to advert to a prior decision of his own (whatever may be its value), as to any other decided case whatever.

In addition to what I have already stated, it has been contended, that there is nothing to show that the ten assigned servants (proved by the letter of the 11th of January, 1837, to have been men), whose services for three months are estimated by one of the witnesses in this case as worth £50 (but who, nevertheless, it has been argued might be women), were convicts or transported offenders, (though it is notorious that these unfortunate people are designated as ``assigned servants," more frequently than in any other manner throughout the Colony,) so as to bring them within Stat. Of 9 Geo. IV., c. 83 s. 9, or the government regulations, even if judicial notice could be taken of the latter, which, however, has been posiiively [sic] denied. It was also strongly contended, that every thing was to be presumed in favour of the contract, and that as nothing illegal, it was said, appeared on the notes of the learned Judge who tried the cause, that no such illegality ought now to be inferred. The contract itself, however, was expressly referred to by His Honor's notes, as also was the letter of the 11th of January, 1837, which was given in evidence; and it further appeared from these same notes, according to the evidence of Mr Dutton, that he estimated the value of the services of these ten assigned servants, for three months, at £50. As I have already stated.

Before I proceed further, let me state, as briefly as I can, a few general principles with reference to these points:--

First -- with regard to the construction of the statute, (which I shall have no difficulty in showing hereafter, is a remedial statute, and not to be construed with the strictness of a purely penal law), I would remind the bar, and even my learned brethren, that, according to my Lord Coke, ``it is the business of the Judges so to construe such an Act, as to suppress the mischief and advance the remedy;" and that in such construction, it is the duty of every Court of Justice, whether a Court of Law or of Equity, to consult the intention of the legislature. Then, with regard to the words ``assigned servants," which I believe to mean convicts, or transported offenders, in common parlance, and in public documents in New South Wales; I would venture to mention authorities so ancient as Lelly's Abridgment and Hobart's Reports.

``Words, (say those venerable writers) ``which may be taken or interpreted by law in a general, or common sense, ought not to receive a strained or unusual construction; ambiguous words are to be construed so as to make them stand with Law and Equity, and not be wrested to do wrong. A Latin word in pleading, which signified divers things, was well used to express that thing intended to be expressed."

I find, according to the report in one of the newspapers of the colony (the Herald, of June 14th), of a case of Hoskins and another v. A. & S. Lyons, that one of the grounds of defence there, was that the sum sought to be recovered, was due on notes given in part fulfilment of an agreement, by which the defendant's were to have the stock-in-trade, good will, and ``assigned servants" of the late John White; which it was urged, with reference to the ``assigned servants" was illegal; and that Mr Justice Stephen left it as a question for the jury (assessors it must have been), whether any part of the bills were founded on the services of the assigned servants? (who, I understand by the evidence, were proved to be male convict servants); for if it were so, the inclination of His Honor's opinion was, that it would vitiate the bills, and the contract would be illegal. A more distinct recognition of the meaning of the term ``assigned servants," could not, I think, be desired.

Respecting the government regulations for the assignment of male convict servants, not being intitled to be noticed judicially; (independently of their being made, by express statutary [sic] provision, (as I shall, hereafter, I think, be able to shew), superior as acts of the Governor, even to any public Act of Parliament on the subject), I would beg that it may be remembered, "that as public Acts of Parliament are to be taken notice of judicially by Courts of Law, without being formally set forth, so also the necessity of pleading a private Act has been dispensed with, where it has been subsequently recognised by some public Act of the Legislature."

I think, in the sequel, it will appear that the Acts of the Governor, which comprehend the rules and regulations respecting assigned servants, which he is empowered to make, have been so fully recognised in those statutes, both of the Imperial Parliament and Local Legislature, which Judges of this Court must have acted upon in the discharge of their official duty, that to reject judicial notice of the rules thus referred to, would amount to a rejection of judicial notice of the laws themselves.

With reference to the contract, it was urged that the statue could not be applied to it; and the case of usury was referred to, and seemed to make some impression on one of my learned brethren -- I mean Mr Justice Stephen. I readily admit, ``that in many cases a defendant will be precluded by the nature of the pleadings, from taking advantage of a public Act of Parliament. Thus, in an action of debt upon a bond, the defendant cannot, under the plea of ``non est factum, avail himself of the statute which makes usurious contracts utterly void." But what is the reason? Because it is not the nature of the contract, but the fact of there ever having been any such contract at all, that is thus put in issue. ``If, however, the defendant plead that the bond was void on account of usury, he may insist upon the statute, though he has not formally recited it. In an action of assumpsit, where the defendant may give in evidence any thing that discharges the debt, or proves nothing due, he may shew under the general issue, that the contract was usurious, or founded on an illegal consideration, which makes the contract void." This was well noticed by Mr Windeyer in his reply.

Having disposed of the special pleading, let us come to the fundamental rule which governs contracts:--

``Pacta quoe contra leges constitutiones, vel contra bonos mores, nullam vim habere indubitati juris ets."

``This rule of the Civil Law is evidently drawn from the principles of universal justice, (`says the learned author, of a treatise of Equity,') which aiming at the prevention of wrong, prohibit agreements which would lead to, or encourage wrong."

``It is a rule, (says the same learned author) both at Law and in Equity, that `ex turpi contractu actio non oritur;' but it is material, in the application of this rule, to consider what is to be deemed `turpus contractus;' and the evidence admissible to avoid the demand on account of turpitude of contract; it is clear, that unless the turpitude of contract (except in particular cases,) appears upon the bond or obligation, it cannot be averred; though (continues Mr Fonblanque), in an action of assumpsit, on a bill of exchange by a payee, the turpitude of consideration may be averred, as to what amounts to such a degree of turpitude as will vitiate the contract. The same learned author says, `it seems that considerations against the policy of justice, or the rules and claims of decency, or the dictates of morality are void in Law and in Equity. '"

These principles were very properly, I think, alluded to by my friends, Mr Broadhurst and Mr Windeyer, in the course of their very able, and in my opinion, convincing arguments.

Keeping then these principles in view, it must always be borne in mind, that in the present case, the verdict is entire -- that is, founded on all the counts of the declaration collectively, and that those counts which do, and those which do not relate specifically to the services of the ten assigned servants, cannot, in this case, be now separated. The verdict, therefore, must rest on the validity of the agreement, which stipulates (among other things) for the transfer of the services of ten assigned servants for three months, for a valuable consideration.

It may, perhaps, tend to elucidate this case if, before proceeding further, I briefly trace the History of the Statute, 9 Geo. IV, c. 83, s. 9, and the government regulations, which I insist, must be judicially noticed, and which, if noticed, or even if the statute alone be thus noticed, must, in my opinion, frustrate the verdict which has been obtained in this action.

``Exile and Transportation, are punishments unknown to the common law of England, and whenever transportation is inflicted, it is either by the choice of the Criminal himself to escape a capital punishment, or by the express direction of some fiat. It is expressly declared by Magna Charta c. 29, ``that no person shall be banished unless by the judgment of his peers or the law of the land." -- But though unknown to the English common law, Exile, though not in name, yet even in different grades, had an early place in the Roman law, to which our legislators have frequently had recourse. According to the civil law.

``Ecilium intellexeruct, cum aquà et igne interdixerunt. Siguidem consuetudo loquendi obtinuit, ut omnes quibus aquà et igne interdictum esset, quoniam, exilii causà solum vertere cogebantur, exules appellarentur; (ut est in Rhotoricis ad Nerenniun.) Exilium autem non nominabatar in irrogatione paenae, sed aquoe et ignis interdictio, quam necessario sequebatur exilium, neque enim sine aquae et ignis usu esse quisquam in urbe poterat; (quod docet Cicero pro caecinnà.) Exilium non est supplicium, sed perfugium portusq supplicii. Nam qui volunt paenam aliquam subterfugere, aut calamitatem is solum vertunt. Itaque nulla in lege nostrâ reperietur, ut apud coeteras civitates maleficium ullum esse exilio mulctatum; sed cum homines vincula, neus, ignominias vitant, quoe sunt legibus constitutae, confugiunt quasi ad aram, in exilium; qui si in civitate legis vin subire vellent, non prius civitatem, quam vitam amitterent. Exillo, autem cives jure civitatis nudatisunt. Relegati autem dicti (teste Festo) quibus ignominia aut poenae causà necisse fuit ab urbe Romae, aliove quo loco abesse, lege, senatusq consulto, aut edicto magistratus."

Exile seems first to have been introduced as a punishment into the laws of England by Statute 39 Elizabeth c. 4, which enacted ``that such rogues as were dangerous to the inferior people should be banished the realm"; a comprehensive law, never hitherto perhaps strictly complied with. The first of our statutes in which the word transportation is, I think, to be found, is that of 13 and 14 Car. c.2, s.23, by which justices of the peace are authorised to transport such rogues, vagabonds, and sturdy-beggars, as should be duly convicted, and adjudged incorrigible, to any of the English plantations beyond the Seas. Then came 18th Car. c.2, s 3, empowering the judges, at their discretion, to execute, to transport to America for life, the moss troopers of Cumberland and Northumberland; a singular coincidence with the appelations of the earliest, I believe, and principal counties of this colony.

Transportation was first, it is said, brought into general use, as a punishment, by the laws of England, in the year 1718 by Stat. 4 Geo I. C. xi. which allowed the Court a discretionary power to order felons, who were by law, entitled to their clergy, to be transported to the American plantations. The preamble of that statute deserves attention. It is as follows: ``Whereas in many of His Majesty's colonies, and plantations, in America, there is great want of servants, who by their labour, and industry, might be the means of improving, and making, the said colonies, more useful to the nation, &c.," then follow the enactments.

Early in the year, 1785, owing to the revolution, of what once were thirteen colonies of the British nation, in North America, the attention of Government was naturally directed to the state of convicts formerly transported to those possessions. In the British House of Commons, Burke (semner honos nomenque suum laudesque manebunt[???]) asked, ``what was to be done with the unhappy persons sentenced to transportation?" ``I trust," said he, ``Gambia is not the place intended for their reception, a country, of which, it may be said, that, there all life dies, and all death lives -- the gates of hell," said he, ``are there open, night and day, to receive the victims sent from hence. It may be denominated, the capital seat of plague, pestilence, and famine. But deprivation of life was not contemplated by the judges who passed sentence of transportation. Burke prevailed, Gambia was abandoned, and choice was made of this portion of the earth as a place of punishment for the unfortunate beings who had incurred the penalties of the law.

Passing over various statutes relative to transportation, elsewhere, and proceeding to what more immediately affects this colony and the point which is now before us, I would observe, that the Stat. 5. Geo. IV. c. lxxxiv. s. 8, enacts as follows: ``That so soon as any such offender shall be delivered to the Governor of the colony, or other person, or persons, to whom the contractor, or such nominee, or nominees, as aforesaid, shall be so directed to deliver him, or her the property in the service of such offender, shall be vested in the Governor of the colony for the time being, or in such other person, or persons and it shall be lawful for the Governor, for the time being, and for such other person, or persons, whenever he, or they, shall think fit, to assign any such offender to any other person for the then residue of his or term of transportation, and for such assignee to assign over such offender, when and so often as may be thought fit, and the property in the service of such offender shall continue in the Governor for the time being, or in such other person, or persons, as aforesaid, or his or their assigns, during the whole remaining term of life, or years, for which such offender was sentenced, or ordered to be transported."

The Governor of this colony is thus invested with absolute property in the services of the convicts, or transported offenders, delivered to him, with liberty to assign them to others, as he (the Governor) may deem expedient. But it will be observed, that the Governor's assignee, might also, according to that law, assign them over. A law, however, which was speedily repealed, and to remedy so great an evil, as placing the convicts under the entire controul of an assignee who might again assign them, Stat. 9, Geo. IV. c. lxxxiii, s. 9, which has been so frequently adverted to, contained in the following enactment.

``That any offender, who hath heretofore been, or shall, hereafter, be assigned to any person, or persons, within the said colonies, respectively, under, and in pursuance of the said Act, 5 Geo. IV. c. lxxxiv s. 8, shall not, by any such ``assignee, or assignees, be assigned over to any other person, or persons, except with the written content and licence of the Governors of such colonies respectively; and, that it shall, and may be lawful, for the Governors of the said colonies, respectively, from time to time, as to them shall seem meet, to revoke any such assignments of offenders as may have been, or as shall hereafter be made in pursuance of the said Act, and to grant to any offender, or offenders, transported to the said colonies, such temporary or partial remissions of their sentence as to such Governors may seem best adopted for the reformation of such offenders, and such temporary or partial remissions from time to time to revoke and renew, as occasion may require; anything in the said Act, or in any other Act of Parliament, to the contrary, in any wise, notwithstanding."

The Governor thus having the sole property in the convicts, and being thus supreme with regard to any of his acts, which were thus authorised by this statute, and declared to be of superior force to any Act of Parliament, or, in other words, to be in force. ``any Act of Parliament, to the contrary, notwithstanding, had the power of making such rules as he deemed expedient, and with reference to any such rules as he might think fit to make. We find, among the Local Acts and Ordinances of the Governor and Council of New South Wales, not only the Sydney Police Act, which Mr Windeyer has so properly alluded to, but also ``An Act, 2nd Geo. IV. No.12. 12th May 1830, for the punishment and transportation of offenders in New South Wales," which, by the 20th section, enacts, ``that all persons, who have, therefore, been transported, or sent to any place in New South Wales, or the dependencies thereof, respectively, or under, and in pursuance, or in execution of any sentence, or order of any Court, or competent authority in New South Wales, shall henceforth be subject and liable to such laws, rules, and regulations, as are, or shall be in force in New South Wales, or the dependencies thereof, with respect to convicts hereafter transported to any such place as aforesaid, and all officers, justices of the peace, and other persons whatsoever, shall be, and they are hereby absolutely indemnified, of, from, and against, all indictments, informations, suits, actions, and demands, whatsoever, which shall, or may be brought, or maintained against them, or any of them in New South Wales and the dependencies thereof, for, or in respect of any Act, matter, or thing, by them, or any of them, done, or performed in enforcing against such persons, so transported, or sent to any place in New South Wales, or any of the dependencies thereof, respectively, any of the said laws, rules, and regulations." This ordinance thus recognising such ``rules and regulations," must, I should imagine, have been constantly acted upon, by His Honor, Chief Justice Dowlin, as a judge of this Court; and, if His Honor should now be inclined to doubt the propriety of judicially recognising such rules and regulations as equivalent to a public statute, which he is bound to notice, it will be to me a greater paradox than anything with which I have hitherto become acquainted in this land of paradoxes. The Local Act, which I have alluded to, was indeed subsequently repealed, and consolidated with others by the Act of the Governor and Council, 3d Will. IV. No. 3. 7th section, whereof, also recognised, ``any rules and regulations to be made from time to time by the Governor, with the advice of his Executie Counvcil.[sic]" But independently of any Local legislative recognittion [sic] of such rules and regulations with regard to convicts which the Governor may think fit to make, we have in the lst, 2nd and 5th Section of the Statute of the Imperial Parliament of 11th Geo. IV. and lst Wil. IV. c. xxix. the most distinct recognition of such rules; thus, the 5th section says, with regard to convicts removed from one colony to another, ``that they shall be subject and liable to all such and the same rules and regulations as if contracted or ordered on original transportation to be delivered to the Governor or other officer administering the government of such colony, and shall be there bealt [sic] with, governed and disposed of, in all respects, as other convicts within the same colony, and that the property in the service of every such convict, shall be vested in the Governor, and subject to all such and the same rules and conditions, as if originally delivered to such Governor. I cannot imagine a more distinct or conclusive statutory recognition of the rules which the Governor may make with regard to convicts, and the necessity therefore that follows as treating those rules as an equal nature to a public legislative enactment than the instances I have enumerated. But were there no such legislative recognitions, I would insist that the statute declares that the acts of the Governor shall in this respect be valid, any act of Parliament to the contrary notwithstanding; that such acts of the Governor are not like the articles of war with reference to the mutiny act, merely of a subordinate nature, but equal and paramount to the Stat. of Geo. IV. c. 83, and all other Acts of Parliament whatever, and therefore a portion entitled to judicial notice.

If the government regulations be, as I contend they must be, entitled to judicial notice in this Colony, then I think it will not be disputed that the stipulation in thia [sic] agreement to transfer the ten assigned servants for three months, for a valuable consideration, or indeed to assign or transfer them at all (they not being mechanics nor labourers, but with the assent of the petty sessions or magistrates, during the harvest); must, according to the twenty-fifth Rule, be invalid. That Rule is as follows:-- ``Convicts being assigned as mechanics, may be lent to one master by another in the same district, for any period not exceeding three months, upon permission granted by the petty sessions, or if there be no petty sessions, by the magistrate acting singly for such district, on a written application by both parties, which shall be recorded by such session or magistrate, and immediately reported to the Principal Superintendent of Convicts. As such loan is intended for the general benefit of the district, without, at the same time, depriving the original assignee of the services of the mechanic, when required; any assignee who shall be discovered to have granted such mechanic on loan, for a pecuniary or other valuable consideration, will be deprived of the services of that convict, and declared incapable of receiving any in future. Convict labourers will also be permitted to be lent by one master to another, duly qualified under these regulations, with the written sanction of the nearest bench, or magistrate acting singly, during the months of harvest only."

Be it observed also, that by one of the last Rules promulgated by His Excellency the Governor respecting the assignment of male convicts, or transported offenders (I mean that of 28th January, 1839), these unfortunate men are designated ``Assigned Servants."

Assuming, however, for the moment, that the government regulations could not be judicially noticed; yet the words of the statute 9 Geo. IV, c. 83, alone are, in my opinion, sufficient of themselves to vitiate the agreement. The words are, ``shall not by such assignee or assignees be assigned over, without license. Now, what is the stipulation in the agreement, but to transfer or assign over the services of ten assigned servants for three months, for a valuable consideration, and without any reference to license? The assent, in writing, of the Governor, according to the statute is, I think as clearly a condition precedent, and must as strictly be complied with by obtaining a previous license, as it would be in the case of a copyholder granting leases; who, by doing so without first obtaining such a license from the lord, would incur a forfeiture from which, even in Equity (according to the case of Sir Henry Peachy v. Duke of Somerset, 1 Str. 452, Prec. Ch. 564), he would not be relieved.

The Attorney General, in his argument (according to my note of it), candidly, and most properly admitted, that the statute 9 Geo. IV., c. 83, s. 9, was enacted to remedy (wherefore it is a remedial law), what was deemed defective in statute Geo. IV. C. 84, s. 8, in order to retain in the hands of the Governor the necessary powers for convict discipline," and he might have added, to enable the Governor to promote the true interests of the convicts themselves. But even if the statute 9 Geo. IV. c. 83, does not apply in express words -- even if the agreement be not within the statute itself, still it is impossible, I think, to deny that it is within the policy of the statute, and that it comes within those principles of policy, against which, as I have already stated, no agreement will, either at law, or Equity be allowed to prevail. I do not hesitate to declare, according to what I have already stated to be the rule of law with regard to the interpretation of words, and according also to the very recent case before Mr Justice Stephen, to which I have alluded, that the term ``assigned servants" must be construed ``assigned convict servants." Mr Foster, indeed, as counsel for the plaintiff admitted, accordingly to my notes (nor could he well do otherwise), ``that the contract must be read according to the plain and ordinary rules of the common usage and understanding of the Colony, and that presumption was not to be carried to extremes to support illegality. I agree entirely with my learned friend, and on the plain, honest, fair, and legal construction of the words ``assigned servants," and the naked stipulation that they should be made over for three months for a valuable consideration, without any reference to license, I defy even his ingenuity to prevent it being within the words of the statute -- the words of the government regulations -- or the policy of the law. With regard to the policy of the law, let me again mention the case I alluded to during the argument of Hannington v. Du Ghastell (1 Bro. C.C. Ed. Belt. p.124) where according to Lord Thurlow, a contract, though not within the letter, yet being within the policy of the law (the statute of Edward VI. might on that ground, be visited either at law, or in Equity.

If, then, the law be, as I conceived it to be, opposed directly in its terms, and in its policy, to the agreement on which this verdict, by the direction or rather want of direction of the learned Chief Justice, in the trial at law, or asfounded; -- if it be the duty of a Judge to notice judicially a public statute; -- if rules or regulations authorised by statute and declared by statute to be equal, nay, even paramount to any public statutes, -- rules recognized by public acts of the local and imperial legislature, are to be deemed, (as I insist they must be,) objects of public and judicial notice in this colony; -- if words are to be construed ``so as to make them stand with law and equity, and not to be wrested to do wrong; and it be the business of Judges" so to construe an act of parliament, (and what is equivalent or even paramount to an Act of Parliament), so as to suppress the mischief and advance the remedy, and to consult the intention of the legislature; if contracts leading to the encouragement of wrong, whether malum prohibitum, or malum in se are to suppressed; if agreements founded on acts of turpitude, against the policy of the law, the policy of justice, or the dictates of morality and humanity, be void in law and in equity; then, in any such case, must a verdict in assumpsit founded on an agreement for a valuable consideration to make over ten assigned servants without any such licence as the law requires for that purpose being shewn, though the transfer were but for the limited period of three months, be, in my opinion, unfounded -- to come to any other conclusion would be, I think, to convert ``assigned servants" into a species of chattel property, to be assigned from party to party, without reference to their moral condition, or that of the character of their assignee -- a proposition too monstrous. I hope, to be entertained at so late a day as this. Were such the case, it might be said, as Shylock said --

``You have among you many a purchas'd slave,

Which like your asses, and your dogs, and mules,

You use in abject and in slavish part,

Because you bought them."

And shall this be permitted in defiance -- in my opinion, of all law and justice? No! I repeat my belief, that the present verdict, being founded on all the counts of the declaration, and not limited to those in which no mention is made of the services of the ten men, is wholly untenable -- a verdict which, under proper direction, never, I think, would have been returned. It must be remarked, however, that this verdict, being a general verdict on all the counts of the declaration, was contrary to the direction of the learned Chief Justice, who stated that, in his opinion, two of the counts could not be supported. I believe that His Honor Chief Justice Dowling has been, and is the assignee of the services of very many convicts, or transported offenders (assigned servants as they are generally called), and of necessity, therefore, he must, from this very circumstance, as well as from his great experience as a Judge in this colony, be much better acquainted with the laws and regulations respecting convict servants than I, whom am almost a stranger, well can be. For my own part, I have even considered the provisions of His Majesty's order in Council, in 1831, for reconstructing the Supreme Courts of Judicature in certain crown colonies, when negro slavery unhappily existed, to be most wise in prohibiting the Judges from being owners of, or in any wise interested in slaves, or their labour. Believing the same principle to be as applicable to the bondsmen of Australia, as to the negroes of Guiana, Trinadad, and St. Lucia; I have abstained, and ever will abstain, so long as I remain on this beach, from being the assignee of convict service. I will never permit the possibility of insinuation that my private interest can in anywise interfere with the honest discharge of my judicial duties. I will always endeavour to keep myself beyond all reach of vulgar suspicion. This I believe to be what was contemplated by the order of His Majesty in Council, to which I have adverted. I have been told that what I consider a violation of the law relative to assigned servants, is so common (``hundreds of similar agreements, vide Sydney Gazette, June 18, 1839.") as almost to amount to general usage. Therefore, this discharge of what I conceive to be a public duty, will probably subject me to an avalanche of censure, the hoarse sound of whose preparatory breaking already has been heard.

``I will not," said Lord Mansfield, ``do that which my conscience tells me to be wrong, to gain the huzzas of thousands, or the daily praise of all the papers which issue from the press. I will not avoid doing that which I believe to be right; though it should draw upon me the whole artillery of libels, and all that falsehood and malice can invent or the credulity of a deluded populace can swallow. I can say (added that illustrious Judge) with another great magistrate ``Ego hoc animo semper fui, ut invidian virtute partam, gloriam, non invidiam, putaren."

For myself, believing that conscience, informed and directed by God's good spirit, never can mislead, I trust to it as that guiding light which no haze of doubt can dim, no cloud of mystery obscure; that light whose sacred halo neutralizes the care and strife, the censure and applause of a varying and unthinking world; that light whose brilliancy extends the view of humanity far beyond the day and the morrow, and cheers its votary with the prospect of a future harvest of external joy.

His Honor the Chief Justice then delivered judgment, but we must defer its insertion for want of room.


Dowling C.J., Willis and Stephen JJ, 22 June 1839

Source: Australian, 27 June 1839


SATURDAY, -- Before the three Judges. -- Walker and others v. J.T. Hughes. -- (Continued from our last).

The Chief Justice. -- This was an action of special assumpsit, on a contract for the sale and delivery of cattle and sheep. The first count of the declaration stated, that on the 7th November 1836, the plaintiff's, at the request of defendant, bargained with him to buy of him, and be sold to them, a large quantity of sheep, horned cattle, and horses, then depasturing at, &c., late the property of one James Cooper, to wit, (specifying the number of each,) together with the defendant's right to the stations, at and on which they were then depasturing, ``as also the services for three months, of ten assigned servants, then attending to the said sheep, &c., and which sheep, &c., were to be delivered by defendant to plaintiff's, at the said stations, on the 15th December, then ensuing, at the price of £5500, to be paid by plaintiff's to defendant, by equal instalments at 3, 6, 9, 12, and 15 months, from the date of the delivery of the said sheep, &c., and in consideration thereof, and that plaintiff's, at the request of the defendant, had undertaken and promised defendant to accept and receive the sheep, &c., together with the right of the stations, and the services of the assigned servants, and to pay him for the same at the price cost, at the times and in manner aforesaid. He, defendant, undertook and promised plaintiff's to deliver and give up to them, on the 15th December, at the stations, the sheep, &c., together with his right to the stations, and the services of the assigned servants as aforesaid. Averment, that although the time for the delivery of the sheep, &c., and stations, hath long since elapsed, and although plaintiff's have paid to defendant £1000 for and on account of the said purchase, and although plaintiff's did, on the 15th December, attend at the stations for the purpose of receiving the sheep, &c., and did then and there request defendant to deliver the same to them according to the terms of his said contract, and his promise in that behalf. Yet defendant, not regarding, &c., did not, nor would on the 15th December, or at any other time, before or afterwards, although often requested so to do, deliver to the plaintiff's the sheep, stations, or the services of the assigned servants, whereby plaintiff's have lost great gains, and also the interest on the £1000 so paid.

Second count like the first, omitting those parts of the contract which related to the right of stations, and the assigned servants.

Third count was like the first, only alleging the contract to be to deliver on the 2nd March, 1837.

Fourth count was like the third, omitting those parts of the contract which related to the right of stations, and the services of ten assigned servants.

The fifth count, money had and received; and,

The sixth count, money due on an account stated. Plea, no assumpsit.

At the trial before myself and a special jury, on the 15th March last, it appeared in evidence, that the defendant had contracted with Mr James Cooper for the purchase of the sheep and cattle in question, and before delivery to himself, re-sold them to the plaintiff's, by the contract declared upon. A letter without date, but supposed to be the 7th November, 1836, addressed by the defendant to the plaintiff's, contained the terms of sale. That part of it which related to the assigned servants, was in these terms, viz:-- ``The stations are to be given over to you with the stock, and you are to have ten assigned servants, now with the stock, made over to you for three months." On the day of the supposed date of the contract, the plaintiff's paid the defendant, on account of the purchase, £1000 in bills, in two equal payments of £500 each, which were proved to have been paid when at maturity. On the 15th of December, when the sheep, &c., were to be delivered according to the contract, Mr Dutton, who was employed as agent both for the plaintiff's and the defendant, with the knowledge of both, went up to the stations to demand the sheep, &c., of Mr Cooper -- first, as agent for the defendant in fulfilment of his contract with the latter, and if he got them, then, secondly, to exercise his judgment whether he would take them for the plaintiff's, in pursuance of the defendant's contract with them. The contract contained this clause:-- ``You are at liberty to decline this purchase, if previous to the 15th December, you do not approve of it." Mr Dutton demanded the sheep, &c., of Mr Cooper, as agent for the defendant, but he refused to deliver them up, until he (Cooper) was satisfied that Mr Hughes had fulfilled his contract with him respecting an annuity bond, which was to be given as consideration for the purchase. Mr Dutton never got the sheep, &c., from Mr Cooper, nor did he demand them of him as agent for the plaintiff's, nor of himself as agent for the defendant. He said that he saw the sheep, &c., but that he would not have accepted them in fulfilment of the defendant's contract with the plaintiff's. There was no proof adduced in support of the third and fourth counts, which stipulated for a delivery on the 2nd March, 1837, nor was there any rescinder of the contract. The plaintiff's rested their case on the first and second counts, and went for the recovery of the difference between the contract price, and the price of sheep, at or about the day when they ought to have been delivered; -- also, the value of the stations, farming stock and utensils thereon, and also the value of the services of ten assigned servants for three months. It was proved, that between the 7th November (the supposed date of the contract) and the 15th December, there had been a very great rise in the price of sheep, from 35 to 45 per cent. In June, 1838, there had been an enormous fall in the market value of sheep. Mr Dutton estimated the value of the improvements on the stations, including outbuildings and wheat crops, at £800.

On the part of the defendant, it was contended that if the plaintiff's could recover at all, it could only be on the first and second counts, inasmuch as, no evidence had been offered in support of the third and fourth counts, and as to the common counts they must be abandoned, as the contract had not been rescinded, and was still open, for which Weston v. Downes, Doug. 23, and several nisi prius decisions were cited. Then, as to the first and second counts, it was contended that there must be a nonsuit, on two grounds; first, that there was no averment of readiness and willingness on the part of the plaintiff's to pay for the sheep, at the price and at the times, and in the manner stipulated by the defendant; and, secondly, assuming that proof of a demand of the sheep, &c., might be sufficient evidence of readiness and willingness, still there was no demand proved. Readiness and willingness is a material averment, and nothing could cure it, but proof of a demand, and refusal to deliver. The Judge ruled that the plaintiff's must be confined to the first and second counts, for the reasons urged on behalf of the defendant. As to the objections taken on these counts, he was inclined to think -- first, that the declaration was sufficient, as the contract stipulated that the payments were not to be made until the delivery of the sheep, which was a condition precedent, and the payment of £1000 before hand was strong proof of readiness and willingness; and, secondly, that proof of demand and refusal was unnecessary, and was an useless ceremony, as the defendant was never in a condition to deliver the sheep, &c., on the 15th December, and it would have been idle for Mr Dutton, the agent of both parties, to ask Mr Dutton if he would deliver the sheep to himself as agent for the plaintiff's. The Judge, however, saved these points, with leave to move to enter a nonsuit.

On the merits, the defendants case was, that the contract declared upon in the first and second counts, was not the true contract, between the parties, but, that having been incorporated with subsequent stipulations, in writing, between the parties, the whole should be taken together as one contract, and if proved, would amount to a fatal variance. The points sought to be established, by the defendants proofs, were, first:-- That the plaintiffs were to pay £600 for the sheep stations and also for the wheat and improvements, secondly:-- That the plaintiffs had waived the time of delivery, stipulated in the first agreement, by agreeing, that the sheep, &c. should be delivered on the 2nd March, 1837, instead of the 15th December 1836; and, consequently, that the only breach, relied upon, by the plaintiff, was thereby negatived, and, thirdly:-- That the agreement was not to pay by instalments, but by bills, to be dated from the 15th December, 1836. To support these grounds of defence, the defendant put in, first, a letter from the plaintiff, Campbell, to his co-plaintiff, Walker, dated, the 11th January, 1837 [after Campbell had parted with his interest, in the contract] containing this passage, viz. ``At Mr Hughes request, I beg to state, that it was my impression, that Mr Hughes agreed to lend the services of ten men for three months, that the bills were to be dated from the 15th December and that the wheat and improvements should be valued by and paid for by us," &c. This letter, Hughes took to Walker, and a copy of it, in the hand-writing of Walker, came into the possession of the defendant. Secondly, a letter from the defendant, dated the 21st of February, 1837, addressed to the plaintiffs, in which the defendant, writing in reference to the agreement of the 7th November, and to a deed of submission to arbitration of the matters in dispute, proposed, that they should have the delivery of the stock and stations (which he was to receive from J. Cooper); on the 2nd of March; and proposing to leave it to Mr James Cooper and Mr McFarlane to decide the extent and amount of the wheat crops, &c. Also, proposing, that those parties should value the improvements and the stations, and also to say, whether in their opinion, the sum of £10 per week, was too much to be paid to the defendant for depasturing and taking care of the sheep between the 15th of December and the 2nd of March. This letter was acknowledged to have been received by the plaintiff, Walker, in the following terms; ``We acknowledge the receipt of your letter and agree to the terms proposed -- T. Walker, for self, and R. Campbell." In reply to this evidence, the plaintiffs, put in a deed of revocation, executed by the defendant, revoking a deed of submission to the arbitration of the matters in difference, between the parties, to Messrs Smith and Parker. The judge, after adverting to the points saved, told the jury, that primá facie, the plaintiffs were entitled to recover, on the agreement proved, unless it was proved, that a new, or modified agreement had been entered into by mutual consent. The agreement of the 7th of November, 1836, was silent as to any seperate [sic] payment for the wheat, stations, and improvements. It expressly stipulated, that the sum agreed upon should be paid by instalments at certain dates, on the delivery of the sheep, stations, and servants, and said nothing about bills, to be dated, on the 15th December, 1836. How was this agreement sought to be varied, or altered between the parties? First:-- By the impressions of one of the plaintiffs after he had parted with his interest in the contract. Secondly:-- By proposals preparatory to the arbitration made by the defendant himself to the plaintiffs, acceded to, no doubt, by Walker, for his co-plaintiff. He (the judge) thought, that the mere impressions from memory of a party could not be taken to controul the positive and distinct terms of an agreement. The agreement must speak for itself. Then, as to the proposals made to the plaintiffs, although acceded to in the terms proved, yet, if the defendant himself thought proper to revoke the arbitration, in contemplation of which, the proposals were made, it would be unreasonable to bind the plaintiffs by their first adoption of them, when the revocation must be taken to have remitted the parties to their former rights. He held, therefore, that the letters of the 11th of January and the 21st of February, 1837, afforded no ground of legal defence to the action. He told them, that the £1000 paid by plaintiff to defendant might be taken as part of the damages to be recovered. Under this direction the jury found for the plaintiffs, damages £2,500.

The defendant gave notice of motion to set aside this verdict and enter a nonsuit, or for a new trial, on eleven grounds specified in the notice. One of the points saved by the Judge, namely, the want of an averment in the declaration of readiness and willingness to pay for the sheep &c., in terms of the agreement, was not stated in the notice. At the trial, no objection was made to the legality of the agreement, nor was there any suggestion to that effect, contained in terms, in the notice alluded to, -- although it is alleged in the notice, that the verdict was contrary to evidence and law; but when the case was called on for hearing, and the report of the Judge who tried the case was read, it was put to the bar by a member of the bench, whether the agreement declared upon was not contrary to the spirit, if not to the letter of the 9th section of the Statute 9 Geo. 4., c. 83, and in defence to the impression thus entertained, the duty of arguing the question was cast on the bar by the bench. Had this objection proceeded from counsel, I own I should have hesitated in allowing it to be discussed, from the obvious inconvenience of departing from that wholesome rule of our Court, which requires that the notice of motion for a new trial or in arrest of judgment, shall set forth the grounds on which such motion is intended to be made, in order that the other side as well as the Court, may come prepared for the consideration of the points intended to be raised. I agree that there may be cases in which a party to a suit may not chose to avail himself of objections, which if decided in his favour might be prejudicial to his own interests. Indeed, on the present occasion it was candidly avowed by the defendant's learned counsel, that he was aware of the objection in question, but for reasons, not very distinctly pointed out, he abstained from making it at the trial. Notwithstanding such abstinence on the part of counsel either in this or any other case, I hold that if a transaction of this, or any other kind is on the face of it so obviously contrary to an Act of Parliament, that a righteous judgment cannot be pronounced, -- it is the duty of the Judge, who is constitutionally the depository of the law, to take care that the law is not violated. On the present occasion if I were compelled to come to the irresistible conclusion from what appears upon record, or from the facts of the case, that the law had been broken, however convenient it may be to propound from the bench, questions not raised by either party to a suit, yet ex debito justitia, I should have felt myself bound to uphold the law. I own, however, that, notwithstanding the deference which I sincerely entertain for the opinion of my learned brother Willis, I do not think that this case places the Court in such a category. The question is, whether the clause contained in the agreement before us, whereby the defendant contracted to let the plaintiff's have the services for three months of ten assigned servants, then attending the sheep, is by violation of the Statute 9 Geo. 4, c. 83, s. 9, by which it is enacted ``that any offender who hath heretofore been, or shall hereafter be assigned to any person or persons, under and pursuance of the Statute 5 Geo. 4, c. 84, shall not by any such assignee or assignees, be assigned over to any other person or persons, except with the written consent and license of the Governor." If it were made manifest by evidence, or by necessary intendment, that the ten assigned servants whose services were contracted for by this agreement were transported offenders, and assigned in pursuance of the 8th section of the 5 Geo. 4 c. 84, and again reassigned without the written consent or license of the Governor, I should, as at present advised, hold such a contract to be void. But non constat, that these were transported offenders -- that they were assigned in pursuance of the 5 Geo. 4 -- and that if they were that, they were to be assigned to the plaintiffs without the written consent of the Governor. These terms in the proposition are wanting, to raise the question as to the validity of the contract within the intent and meaning of the Statute 9 Geo. 5 c.83. These ingredients, I apprehend, cannot be supplied by implication, and speaking judicially, the Court is not at liberty to intend what was capable of proof, if true, but not proved. We cannot go into extraneous matters not before us in due form of law, to supply a constat of facts, to raise the question now propounded. It may be, that in colonial popular language, the expressions, ``assigned servants," ``government men," and so forth, may mean ``transported offenders," but this required proof to satisfy us judicially. Without determining whether we should be bound by the government regulations as a means of intepreting [sic] the Act of Parliament, and arriving at the conclusion that this agreement is void within the statute, I apprehend that in this Court we are not free to look at those regulations without being regularly proved, like other codes, whether foreign or domestic, not expressly recognised by statute for judicial observance. I hold that we, as Judges of the Supreme Court, cannot take notice of the regulations alluded to, unless proved by competent evidence. They have not been so proved, and in my opinion they must be left out of sight in determining this question.

I agree that if they were regularly proved before us to have been issued by competent authority, we might give effect to them, so far as they did not contravene the laws of England, or any local ordinance passed by the Governor and Council of the Colony; but the point on which I make my stand, is, that they were not proved, and not being proved, we cannot take judicial notice of them. In the case of Nash v. Purcell, decided in this Court, on the 9th July, 1828, a similar question incidentally arose --whether this Court would take judicial notice of a government order issued by Governor Macquarie for regulating the rates to be levied by poundkeepers. The government order in question, had been issued before the establishment of a local legislature, but inasmuch as the local ordinance, 6 Geo. 4, No. 20 had expressly recognized and confirmed the government order, the Court upon proof of the issuing of such order, acted upon it, and took it in connection with the local ordinance. On that occasion, Sir Francis Forbes (undoubtedly an able constitutional lawyer), in delivering the judgment of the Court, said ``in delivering this opinion, however, the Court wishes to guard itself against being understood as giving any sanction in this Court, to such proclamations or general order, as upon consideration, shall be found to contravene the laws of England, or as shall not appear to have been sanctioned by the local legislature. We only recognize the order in question, in so far as it applies to the collection of poundage dues, and we are not to be understood as sanctioning its operation for any other purpose."

I do not. (after diligent search), find the government regulations in question, recognised in any local ordinance binding in this Court, without some proof that they had been duly issued by competent authority.

It is true that by the local ordinances, 4 Wm. IV., No. 7, s. 3, and 2 Vict. No. 2, s.3 (the one the Sydney Police Act, and the other the other the Country Towns' Police Act), the justices are required amongst other things ``to uphold all regulations established by competent authority, for the management and discipline of convicts within the town and port in the one case, and within the said towns respectively in the other;" but that is a very different thing from giving these regulations such validity as that we can take judicial notice of them, without proof, at least, that they had been established by competent authority. In a late case tried before me (and now in the new trial paper) Carr v. Stephen, the government regulations regarding the assignment of convicts were duly and regularly proved, by calling upon the Commissioner to product them. In this case I should have required the like proof; unless some statute or local ordinances enacted that the Supreme Court should take judicial notice of them.

The Statute 1 Wm. IV., c. 39, and the local ordinances, 11 Wm. IV., No. 12., and 3 Wm. IV., No. 3, do respectively recognise the rules and regulations ordained for the discipline and controul of offenders under sentence of transportation, but they have nothing to do with the question as to the right of property in the services of such offenders. The rules and regulations therein alluded to, mean only such rules and regulations as are analogous to the rules and regulations of a goal; but, even in a case where it might become material to inquire what such rules and regulations were in force, they must be established by proof, before they could be acted upon this Court.

The Court wil [sic] take judicial notice of the Articles of War, after being duly proved, but not till then; Rex v. Withers, 5 T. R. 446, because the Mutiny Act expressly requires that they shall be so taken notice of, but not of any rules and regulations for the government of the army; Bradley v. Arthur, 4 B. & C. [?]01. So here, if these regulations were by any statute or local ordinance required to be taken notice of, we should act upon them accordingly; but as they are not so required, ``they should be brought before us by proof, in the same manner as any other fact." Per Abbot, C. J., in Bradley v. Arthur. In Van Omeron v. Dowick, 2 Camp. 44, it was held that the judge at Nisi Prius could not take judicial notice of the King's proclamation, without producing the Gazette for the purpose. It remains, therefore, to consider whether the agreement on the face of it bears patent evidence of fraud, or whether it is not susceptible of a construction consonant with law. If it will bear the latter interpretation, we are bound to uphold it, upon the general principle that fraud is not to be presumed. The only ground upon which such a contract could  be held unlawful, if there were sufficient facts laid before us, to bring the case within the ninth section, is, that it would be a fraud upon the Governor, by being entered into without his consent -- a consent necessary to be given on grounds of public policy, for the due protection, government, and controul of offenders transported to this Colony. Until the passing of that Act, there is not doubt that the assignee of a transported offender, had a property in his services, and by such assignment acquired all the rights resulting from such a transfer -- such as the legal remedies necessary to enforce the right -- the power of suing in contract for the work and labour of the offender, or in tort for injuries to the offender, per quod the assignee lost his services. From the passing of the Statutes, 22 Car. 2. c. 5 (which first directed the transportation of offenders to His Majesty's plantations, ``there to be kept to hard labour") the 4 Geo I, c.11., the 8 Geo. III. c.15, the 43 Geo. III. c.15, the 56 Geo. III. c. 57, down to the 5 Geo. IV. c. 84, this principle is deducible, and therefore but for the passing of the 9 Geo. IV c. 83, s. 9, there would have been nothing unlawful in a contract for the services of a transported offender.

We are not called upon to discuss the policy of the law which vests in the assignee, a property in the services of a transported offender. Such right of property has been recognised by a series of Acts of the Imperial Legislation. We are bound to presume that Parliament was influenced by the sound policy of reclaiming the waste lands of this colony, an object which would probably never have been effected but by securing those who embarked their capital and fortunes as Emigrants to so distant land, a right to the services of those unfortunate persons who had for their offences forfeited the rights of citizens, whose maintenance, without such a legislative arrangement would have been an intolerable burthen to the public. The legislature may have had even the more innocent object in view, of ameliorating the condition of the unhappy outcast, by familiarizing him to habits of honest industry under the domestic care of a private master, and giving thereby the assurance, that one great object of punishment might be thus effected -- the moral reformation of the culprit. Whatever, however, may have been the policy of the legislature, the right alluded to has been expressly recognized, and would have been indefeasible but for the 9th section of the 9th Geo. 4. That clause is, however, in my opinion, only a modification of the recognized right of property in the services of the offender, which right cannot now be reassigned as heretofore, except with consent of the Governor. Such a contract is not absolutely illegal, -- it is not illegal abinitia. It is legal submodo, and it lies upon the defendant to shew its illegality;-- it is voidable -- not utterly void. But whenever a case shall arise for the distinct judicial determination of this Court, it will doubtless receive that consideration which no important a question demands. In the present case, for the reasons I have already stated, I think that question is not ripe for decision and the exercise of a sound discretion dictates the prudence of abstaining from the utterance of opinions not necessary to the determination of the case before the Court.

I think this contract is capable of an innocent interpretation. For anything that appears to the contrary before the Court, these assigned servants may have been hired servants indented for seven years under the 35th section of the same Statute 9 Geo. 4. c 83, and assigned to the defendant, and by him proposed to be made even to the plaintiffs.  There is nothing in the agreement itself repugnant to such a construction.

If, from the plaintiff's own stating, or otherwise; there was a patent infraction of a positive laws the Court would not assist the plaintiff. If the thing done, or proved to have been done, was in direct violation of the law, the Court would not upheld it.

The principles of the cases cited, Blachford v. Preston, 8 T. R. 93. Hamington v. Du Chattel, 1 Bro. C. C. 124, Garford v. Fearon, 1 H. Bl. 327. Parsons v. Thompson, 1 H. Bl. 352, Jackson v. Duchell, 3 T. R. 551 and others of that class are not disputable, but they are inapplicable until it is made manifest by proof that the question of the illegality of this contract arises.

I think, the principle of the case of Sissons v. Dixon, 5 B. and C. 758, is in point. J. Bayley, there says, ``The presumption always is, that a party complies with the law. The means of proving the contrary were within the power of the defendant, if the fact were as suggested; and as no proof was given the goods were not duly entered, that ground of defence fails." In Bennett v. Clough, 1 B. and A. 461, the Court held, that, in as much as illegality is never presumed, the defendant should have given prima facie, of illegality. So here, the defendant, in the absence of any patent illegality, should have alleged, if not, at least established by proof the illegality. At the utmost, taking the case, as proved, it was only a lending of these servants which may have been, with consent. We must construe this contract, I apprehend, as if it were submitted to the determination of the Court of Queen's Bench, at Westminster. If that Court could not take judicial notice of what assigned servants mean, without proof, what is there peculiar in this Court which compels us to understand, judicially, what it means, without proof? Privately, and personally, we may attach a meaning to it, which would answer the purpose of the argument, but we cannot import our private knowledge into the case. I agree, that the true construction of an Act of Parliament may be collected from applying the same meaning to phrases which have been used in former statutes, but I can find no former statute in which the words, assigned servants, are used, as which the words, assigned servants, are used, as synonimous, with ``transported offender." Admitting that this ninth section is to be regarded as remedial, and therefore requiring the most liberal construction to suppress the mischief proposed to be remedied, still there is another rule applicable to remedial statutes, which must not be lost sight of, namely, ``That where a remedial statute is confined to one object, and passed to affect a particular purpose, or redress a particular grievance, it shall not be construed to extend to cases out of it." Bradley v. Clarke, 3 T. R. 197. In my opinion, however, having reference to the consequences likely to flow from an infraction of the ninth section, it is to be construed most strictly. It tends to the working of a forfeiture, and if decided against the plaintiffs is this case, if it did not lay them open to criminal prosecution, would prevent them from recovering a fraction of the large sum of money which they have paid the defendant on the faith of the contract. Penal statutes are to be construed strictly. This rule is to be found universally laid down in the books, and means, that no construction shall be extended, by implication, beyond the words of the statute, and, that the party accused, shall be entitled to have his case brought strictly within the terms of it. Be it, that an Act of Parliament uses words, or phrases, of doubtful meaning, but, which are in common use, their meaning is to be expounded according to usage, that rule does not apply to this case; ``transported offender" has a definite meaning, and it is certain in its import. If the statute had used the term ``assigned servants," then recourse might be had to evidence of usage, to explain its meaning, and remove any ambiguity, as in Rex v. Chitty, Park. 37, where in an information in the Court of Exchequer, the question was whether certain raisins were liable to pay duty or not. In that case, witnesses were attained, as to the meaning of the term in common use among merchants, as to what description of raisins were charged with duty.

Assuming, however, that we are bound in common and popular language to understand, that an assigned servant means nothing but a transported offender, still I apprehend it would have been necessary for the defendant to have negatived by objection, or allegation at least, the exception contained in the clause. It is declared not to be lawful to assign over any offender, except with the written consent and license of the Governor. If the defendant had made the objection that there was no such consent and license, it might be possible for the plaintiff to have shewn that the consent and license of the Governor had been obtained, but coming as this objection does, after verdict, and made, not by counsel, but emanating from the bench, the plaintiffs are shut out from curing the difficulty by proof. The presumption of legality is in favour of the plaintiffs, until the contrary is shewn, and the onus lay upon the defendants to negative, if not to prove the non-existence of the consent and license. The assignment would not be absolutely void ab mitio, unless it was made without a license. The agreement is, to have ten assigned servants made over for three months only. It is not an absolute assignment. It is, therefore, legal sub modo. It is illegality should come by way of objection on the part of the defendants, to put the plaintiffs to the proof of its legality. This section, as I have already intimated, is, in my opinion, to be construed with the same strictness as we would a penal statute before a vested right of property is to be divested, and the Court is not at liberty gratuitously to presume a disqualifying fact, which was neither averred nor proved at the trial. The difficulty, therefore, I have, is in concluding the plaintiffs upon an otherwise meritorious contract by mere presumption, when if they had had the opportunity, such a presumption might possibly have been rebutted by proof, that they came within the exception. I cannot, therefore, bring my mind to the irresistable conclusion that this contract was made in violation of law.

Adverting now to the other points made in argument, the first that presents itself is, that which goes to a nonsuit, namely, the want of an averment in the declaration of the plaintiffs' readiness and willingness to pay for the sheep at the price and at the times and in the manner stipulated by the defendant. This point was certainly saved at the trial, although it is not specified in the notice as a ground of nonsuit; and the question is, whether the defendant is now shut out from urging it, because it is not set forth in the notice, in pursuance of the 46th rule of this Court. That rule of Court, which is as obligatory upon us, as the statute by virtue of which it is made, orders, ``That in all cases where either party shall intend to move for a new trial, or in arrest of judgment, or upon any point reserved by the Judge at the trial of the cause, he shall file in the office of the Supreme Court, within four days after the trial of the said cause, notice of such his intention &c., and the said notice shall set forth, in a brief and compendious manner, amongst other things, the grounds on which such motion is intended to be made." Now here, notwithstanding the numerous grounds set forth in the defendant's notice, the point so taken and reserved at the trial is not mentioned in compliance with the rule, the good sense of which is obvious. Those who have had experience of Courts of justice know that very frequently the zeal and acuteness of counsel prompt them to make objections, in which perhaps, they have no confidence themselves, which a Judge, for more abundant causes, sitting alone at nisi prius, is induced at the entreaty of the advocate to reserve for consideration; but the rule of Court requires as a test of sincerity, that the points so taken and reserved shall be set forth in the notice, in order that the other side as well as the Judge shall be apprised of the intention to persist in the objections. It appears to me, that as the defendant has not complied with the rule of Court in this particular, he is not now at liberty to stand upon this objection, even were it more of substance than of form. It is, in fact, a mere [?] objection, and quite beside the merits of the case, and however available on demurrer [?] arrest of judgment, it is not, after verdict entitled to such favour. It is a rule established by abundance of authorities, that the omission of the averment of performance of a condition precedent, or of an excuse for the non-performance, is fatal on demurrer, in case of judgment by default, but after verdict, the omission may be aided by the common law intendment, that every thing may be presumed to have been proved, which was necessary to sustain the action, for a verdict will cure a case defectively stated. Rawson v. Johnson 1 East. 209 c. 2 Saunders 352; 2 Burr. 900; Doug. 687; 1 Saund. 228. Assuming that this is an objection which would go to a nonsuit, I am of opinion that the defendant has shut himself out from making it, by omitting to specify it in his notice. The case of Hall v. Bell, adverted to by Mr Windeyer, and decided on 28th October, 1837, was decided on demurrer, which makes all the difference. The next, and more material objection, tended to shew that there was a variance between the contract declared upon, and the contract actually proved. It was contended that the contract declared upon, was not the true contract between the parties, and that it had been varied by a letter of the 11th January, from the plaintiff Campbell to the plaintiff Walker, stating his impression of what the agreement was, two months after it was entered into, and by a letter from the defendant, of the 21st February, referring to the original agreement, and proposing terms of adjustment of their differences, to which the plaintiffs acceded, and it was insisted that these letters should be taken in connection with the agreement declared upon, and submitted to the jury as forming altogether one agreement. If it had been made manifest, that the paper declared upon was imperfect on the face of it, and the intentions of the parties not sufficiently explicit, I agree that any other papers between them relating to the same subject, but not repugnant or contradictory thereto, the whole should be taken together to arrive at their meaning; but that was not really the case in the present instance. It is true that two months after the agreement declared upon was entered into, and after the alleged breach, the defendants procured Campbell (after he had in fact ceased to have any thing to do with the contract) to write a letter to Walker, stating his impressions of what the agreement was. There was no proof that the plaintiff Walker assented to Campbell's impressions. All that was proved was, that a copy of the letter in Walker's handwriting came out of the defendants' possession. If it were intended that this should be treated as embodying new terms in the original agreement, there should have been some proof of Walker's assent to it, but there was none. Then as to the letter of the 21st February, proposing certain terms, with reference to the arbitration, the whole argument arising from that document fell to the ground when it came to be proved, that the submission to arbitration was revoked by the defendant himself before anything was done upon it. By that step, I was then, and am still of opinion, that the parties were remitted to their original rights on the agreement of 7th November, 1836.

The case of Dobell v. Hutchinson, 3 Adolphus and Ellis, 370, so strongly urgent in support of this point, is not applicable to the argument used. The question there, was, whether there was a sufficient contract, in writing, to satisfy the 4th s. of the statute of frauds, 29 Chas. II. c. 3. The plaintiff there signed a written contract on the back of printed conditions of sale, in which conditions, the names of the vendors appeared as solicitors only, and not vendors, and the question was, whether the subsequent correspondence of the defendants, in which they recognised the conditions of sale, and spoke of our sale, and threatened to file a bill for a specific performance, made them liable, on a binding contract, within the statute of frauds. That was the sole question, which is quite wide of this. In Goss v. Lord Nugent, 5 B. and Ad. 58, the question was whether the parol waiver of a condition of sale broken, could be good without being in writing, and it was held in the negative.

In the next place, it was contended, that there was no proof of a breach of the contract, because there was no demand of the sheep. It appeared, that after the defendant had received £1000 of the plaintiffs on the 7th of November, on the faith, that he was in a condition to deliver the sheep, on the 15th of December, Mr Dutton, as the agent of both parties, and with the knowledge of both, went to the station, first to demand the sheep of Cooper on behalf of Hughes, and then, if he got them, to demand them of himself on behalf of the plaintiffs. When he got there and demanded them of Cooper, the latter would not deliver to him, as agent of Hughes because Hughes had not performed his contract with him. After this, it would have been idle for Dutton, to ask himself, Dutton, either mentally, or orally, to deliver the sheep, from himself, to himself, as agent for the plaintiffs. This would have been an idle and useless ceremony. He went on the 15th Dec. to demand the sheep according to the agreement, and they were not delivered. The defendant was therefore never in a condition to deliver, and a demand under such circumstances would have been useless. By his own actings he waived the necessity of a formal demand, which was an empty ceremoney, [sic] by constituting Dutton as his own agent, knowing that Dutton was also the agent of the plaintiffs. Fourthly -- It was contended that the payment for the sheep was a condition precedent, and that there was no proof of it. There was proof, that on the 7th November the plaintiffs paid the defendant £1000 in bills, by anticipation, although the agreement was only to pay by instalments, at three, six, nine, twelve, and fifteen months, from the date of the delivery. In fact, the condition precedent lay on the defendant, for he was bound to deliver, before he was paid any thing. It appears to me on the whole that none of the grounds taken for disturbing the verdict, are maintainable, and that the rule for a new trial must be discharged.


Dowling C.J., Willis and Stephen JJ, 22 June 1839

Source: Australian, 29 June 1839


Australian, Saturday June 29, 1839


SATURDAY. -- Before the three Judges. -- Walker and others v. J. T. Hughes. -- (Continued from our last).

Mr Justice Stephen. -- The objection which has been raised to the legality of the contract in this case, is in the nature of one in ``arrest of judgment." If the objection were one, supposed to rest on mere surmise or conjecture, the Court could not have been expected to interfere. The mere suspicion of an illegality, could never entitle us, certainly would never call on us, to send the case for a new trial.

I am therefore to consider, whether, on the face of this record, the illegality suggested to us does or does not manifestly appear; so that, notwithstanding the verdict, we may not allow the plaintiffs the benefit of it.

Now, the contract said to have been illegal, is the following. The plaintiffs bought of the defendant certain cattle, together with his right to the stations on which they depastured, as also the services, (that is, the defendant's right to the services) of ten assigned servants then attending them. It is suggested, or rather it is taken for granted, that these assigned servants were transported offenders; and it is then objected, that this was an assignment over of them, in breach of the provision in 9 Geo. 4th, c. 83.

I shall assume, that these men were transported offenders. I shall assume further, that the sale of the defendants right to them, (and he professes to sell no more,) was an assignment over, within the meaning of the statute. It is contended, indeed, that there was here no assignment at all; that it was a transaction of loan, or hiring out only, for a limited period, I shall disregard this objection; and shall consider, that the transaction, being within the mischief intended to be provided for by the statute, is within the remedy. The question will then remain, simply, whether the record shews that these offenders have been so assigned, without the consent of the Governor. If I must see that no such consent was obtained, the assignment was not illegal. But, I must see this fact, and be satisfied of it, from the record alone.

It is not unworthy of remark, in the outset, that the objection itself, the imputation of illegality in this contract, comes for the first time, after verdict. It was not mooted at the trial. It was a point, not at that time adverted to. The consequence is, that were it even proper to travel out of the record, we have nothing but that record to assist us. For any thing that the Court know, the defendant may have obtained the necessary consent, and it may have been in his attorney's hands at the trial. It may yet turn out that such consent lies in the Governor's office unforwarded, and therefore not made use of. I say this, not in respect of judicial knowledge merely, I am equally ignorant of the fact as an individual. The notes of the learned Judge, which I should be willing to bring in aid of my ignorance, do not assist me. We have no means any one of us, of ascertaining the fact one way or the other.

The question for consideration is, whether in this state of uncertainty, this Court is nevertheless to act as if it were in a complete state of enlightenment; -- whether, there being no illegality unless there were no consent from the Governor, (but on that fact, there being no evidence or allegation before us), the Court shall now, after verdict, interfere, or is, by the rules of law compelled to do so.

I used advisedly the expression, compelled to do so. If not compelled to sustain the objection, I am of opinion that we ought not to sustain it. I accede to the doctrine, that a manifestly illegal, or immoral contract, ought not to be enforced. And I should care little, whether the parties chose to make that objection. Such a contract should not be sanctioned; and the Judges would neglect their duty, who deliberately afforded one of that nature their countenance. But, are we to presume an illegality where it is not manifest? or shall we not rather presume the contrary, where there is nothing in the case before us, reasonably to repel that inference?

It may have been, that the defendant had not the Governor's consent when he entered into the contract. But that alone, would not vitiate the transaction. The cases cited for the plaintiffs in Holland v. Hall, 1 B. and A. shew that, had such consent been obtained at any time, before the actual day of transfer, the contract would have been supported. And, suppose that the defendant never obtained that consent; how were the plaintiffs to know the fact? Is there any thing to shew that they anticipated it? But, unless the plaintiffs themselves were thus in fault, of what offence have they been guilty, that we are to volunteer interference with them? They purchased the defendant's right for three months to his assigned servants. Giving that term the meaning contended for, might they not reasonably have supposed (if they thought at all on the matter, or the restriction in the statute were at all present to their minds), that this was no more than a purchase of the men's services, subject to an expected approval which the defendant naturally would lose no time in procuring? Might they not fairly have presumed, that there was sold to them no more than the defendant had a right to grant? And, in the absence of such information, or even of inquiry on these points, what right has this Court to disturb their verdict? Or, without a manifest necessity, by strict requisition of law, ought we do so?

I perceive in this case no such necessity. I see before me no contract, that I am entitled to pronounce illegal. After verdict, nothing can be presumed either for or against a party, but what is expressly stated, or necessarily implied. This is a well known rule; and it is so stated in those terms, in Spiers v. Parker, 1 T. R., by Mr Justice Buller. In Yeoman v. Barstow, in L Lutw., in a tolerably plain case of usury, the Court held that they were not entitled, after verdict, to assume any such fact against the plaintiff, ``unless it clearly appeared on the record that the transaction must, of necessity, have been usurious, and that it could not be any thing else." What is there in the present case from which we must, of necessity imply, that the assignment contracted for, was without the Government consent? But, unless we do imply that fact against the plaintiff, how are we entitled to declare it illegal?

An examination of the cases will shew, that the Court is bound to entertain a presumption entirely the other way. By 37 Geo. II. c. 90, every attorney neglecting to obtain his certificate for one year, shall thenceforth be incapable of practising; and his admission shall be thenceforth void: provided nevertheless, that he may be readmitted. In Pearce v. Whale, in 5 B. and C. 39, the defendant proved that the plaintiff had not taken out a certificate, either in 1818, 1819 or 1820. The defendant then contended, that the plaintiff must shew a readmission; the business sued for having been done subsequently to 1820. But the Court held that, in order to show that the plaintiff had acted illegally, the defendant ought to have proved that the plaintiff had not been re-admitted.

There was, it is true, a presumption in that case, that one plaintiff was an attorney, by his having acted in that capacity. But the question was, what extent of proof was cast on the defendant to prove such acting to be illegal. And the reason for the decision of the Court, requiring the defendant to prove a negative, shows the principle in these cases, ``The rule applies," said the Court, that ``Omnia praesumantur vit esse neta."[???]

The next case is, that of Sissons v. Dixon, in 5. B. and C. 759. By 46. Geo. 3. c. 87., all goods shipped off from Ireland, before entry of the same, or warrant obtained from the proper officer, shall be forfeited. A parcel of lace was shipped off from Dublin by a packet to Liverpool. The owner brought an action for the non-delivery of that lace. The defendant contended that, as such shipment was illegal, without such entry or such warrant, the plaintiff should prove compliance with those requisites. The Court held, that the proof of the negative as to both those facts lay with the defendant. The reason given was the same as in the last case. ``The presumption always is, " says Mr Justice Bayley, ``that a party complies with the law."

Those two cases are, therefore, most important, as supplying the principle, with respect to presumption, by which I conceive that we must be guided in this case. The provision in each of the statutes cited is similar. It was not denied in Sissons v. Dixon, that he there been no entry, and no warrant, the shipping off would have been illegal. At all events, the decision assumes that it was so. But admitting the contract to have been illegal, if no such entry, and no such warrant had existence, the Court in the absence of proof either way, sustained that contract.

The next case which I shall mention is, that of Bennet v. Clough, in 1. B. and A. 462. By 42. Geo. 3., c. 81, no person shall send any letter otherwise than by post, or by the authority of the Post-Master General. In a subsequent section, it is provided that the Act shall not extend to any letter concerning goods, sent with those goods. A sealed letter was sent in a parcel by a carrier with goods. Bennett v. Clough was an action against the carrier for the loss of those goods. It was contended that such sending being illegal, the plaintiffs could not recover. The Court gave no opinion on that point. But assuming the law to be as contended for, they held that it was for the defendant to have shown, that the letter in question did not concern the goods which it accompanied. ``Illegality," says the Court, ``is never presumed. On the contrary, every thing must be presumed to have been legally done, till the contrary is proved."

This case furnishes another instance of the principle, upon which I apprehend that we are bound to decide the present. The Court held, in this case of Bennett v. Clough, that because the letter might have concerned the goods, the proof of the negative lay with the defendant.

On a similar principle, the case of Williams v. the East India Company, in 3. East. 192, was decided. Not only is the presumption of law in favour of the legality of contracts. The law presumes in favour of a man's innocence of crime; in other words, that every man act, legally until the contrary be proved. The plaintiff complained, that the Company had put on board his vessel a dangerous commoditys without giving the mate, who received it, notice of its nature. The Court held that he must prove that allegation; though the mate, it appeared, was dead. This decision was on the ground, that the Company's office would have been criminally responsible for the neglect alleged against him. And the Court held, that in every such case, the law presumed every requisite Act to have been done accordingly, and threw the negative on the other side. Every wilful violation of the law, in like manner, is similarly obnoxious to criminal responsibility; and in every such case, a similar presumption arises, that the law has not been violated.

The conclusion seems, to my mind, irresistibly to follow, that in the present case -- this Court is bound to presume that the supposed assignment was with the Governor's consent, and therefore legal.

If this be so, I need scarcely consider the question, whether the plaintiffs were bound to have alleged, in their declaration, the fact of such consent having been procured. Very little will suffice to shew that no such averment was necessary. The rules of pleading follow pretty closely the rules of evidence. Matters which the law implies, need not be stated in pleading. Where the law presumes the affirmative of fact, (as, for instance, here, that the Governor's consent was obtained,) the negative must be averred by the party insisting on it.

There are instances which appear to be exceptions from this latter rule. On examination, however, it will be found that it is because they clash with other rules, of an opposing tendency. But there is no such opposition here. Again, it is a general rule in pleading, that a party need not allege any matter, peculiarly within the knowledge of his adversary. So matters need not be stated (in general) more than shall be necessary, to make out a prima facie case. Matters, in defeazance of the action, for example, must (in general) be alleged by the defendant.

These rules are met with in all the books, and their application to the present case is easy. The rule last cited, is thus given in Com. Dig., Pleader, c. 81, -- ``Wherever there is a circumstance, the omission of which would defeat the action, otherwise primá facie well founded, it must be shewn in pleading by the defendant." In other words, such a circumstance (in this case, the non-procurement of the Governor's consent,) is matter of defence; and no allegation on the subject is required from the plaintiff.

The case of Holland v. Hall, in 1 B. and A., 53, was cited at the bar, as furnishing an authority opposed to the decisions on which I have commented. But, on reference to the Statute of 29 Geo. II., c. 16, under which the transaction there was impeached, it will be seen that the judgment in that case rests on the well known distinction, between the case of an offence created in a clause containing no exception, but with an exception subsequently introduced, and the case of an offence created, with the exception or exceptions in the same clause.

The difficulty is, in each instance, to determine, what is a primá facie case. This determines, what is matter to be set up by the adversary. The cases shew, that if a thing be prohibited, without any exception in the same clause, the doing of that thing is primá facie illegal; and, consequently, we need not aver that the party is not within such exception. And the rule of evidence is in conformity with this. But, where the exception is in the same clause, we must, in pleading negative his being within it, even though the proof be, in such case, not on us, but on him.

The case of Holland v. Hall, was as follows:-- The 29 G. 2 C. 16, authorizes the King, by order in Council, for any limited period, to prohibit the exportation of military stores. In the year 1816, such an order in Council was issued. The parties, nevertheless, entered into an arrangement for exporting military stores, in defiance of that order. It was contended that as such an exportation would be legal, if with licence, the negative was to be shown by the party objecting. But the Court held, that the agreement being illegal on the face of it, it was for the plaintiff to shew, what, if any thing, had made it otherwise.

The distinction adverted to, will be apparent, by refence [sic] to the cases in 5 M. and S., 210; in 1 East. 652; and in 1 Camp., 654.

On the principle, then, which all these cases furnish, it would have been necessary for the plaintiffs to allege, that the Governor's consent was obtained, in case the exception on that head had been in a separate clause. In other words, if the statute had prohibited the assigning over of convicts, and had there stopped, -- any such assignment over would primá facie have been illegal. The exception being in a subsequent clause, the plaintiffs would (as in Holland v. Hall) have been compelled to bring their case within the benefit of such exception. In other words, they would then have had to aver, that the consent in question was obtained. But, as the case now stands, the prohibition and exception both forming part of one and the same sentence, such an averment is, on principle, unnecessary.

Upon the whole, I am of opinion that we are to presume that the necessary consent in this case was given:-- I am of opinion, clearly, that the plaintiffs were not bound to allege that such contract was given. I feel still more clear that there is nothing from which we are entitled to infer, that it was not given; and therefore, (even supposing all the other points under the statute, to be conceded against the plaintiffs,) I cannot say that the contract declared on by them is illegal, nor consequently can I think that this Court may disturb the verdict, which has been obtained by them.

The conclusion thus arrived at by me, renders any distinct opinion on those other points unnecessary. I have no hesitation, however, in concurring with the rest of the Court, on the more important of them. I regret only, that I cannot agree with Mr Justice Willis, in the opinions expressed by His Honor, on the question which incidentally arose, as to ``judicial knowledge."

Some of the cases, indeed, respecting judicial knowledge, border not a little on the ridiculous. But the very strictness of these decisions, proves the rule more strongly. In one case, reported in R. and R., 416, the Court would not judicially know, that colts were of the species horse. In another case, in 2 B. and A., 301, the Court would not take judicial notice, that Dublin was the City of Dublin in Ireland. In Deybell's case, 4 B. and A., the Court would not judicially take recognizance of the fact, that Orfordness was not on a given part of the coast of Sussex. And so in slander, for words evidently spoken in irony, the Court will not judicially know that meaning, without an express averment.

With respect to judicial notice being taken by this Court of the ``Assignment Regulations" or our having a right, as Judges, without such documents being offered before us in evidence, to know anything of their contents, I conceive that the cases of Van Omeron v. Dowick, in 2 Camp., and of the King v. Withers, cited in 5 T. R., 446, are quite decisive. In the former case, Lord Ellenborough refused to take judicial notice of the King's proclamation, though that was, like these Assignment Regulations, issued in pursuance of a statute. In the latter case, the Court would not take judicial notice of the King's Articles of War, though they also were issued in pursuance of a statute. And, why are the Articles of War judicially noticed now? The reason is given in Bradley v. Arthur, 4 B. and C., in so many words, by Lord Tenderden: ``because only the Courts are directed so to do by statute."

In the same case, the Judges would not judicially recognise the King's Army Regulations. Yet, they are equally noticed in the Mutiny Act. The reason for the difference is obvious. The Act expressly directs, that the Articles of War shall be so recognised. It contains no such provision, with respect to the Army Regulations. Can there be adduced higher authority for the position, that we may not dispense with the usual formula of proof, in cases of this nature? -- and that the mere circumstance, of rules or orders emanating from a Governor, under the sanction of a statute, will introduce no exception from the rule?

I have had no opportunity of perusing the Mutiny Acts, prior to the date of ``the King and Withers." It cannot be doubted, however, that the decision in that case led to the provision in the Modern Mutiny Acts, which I have just noticed. And the very existence of that provision, affords conclusive proof of the accuracy of the position contended for.

It is [insisted] that these ``Assignment Regulations," of which we are required to take notice, are recognised, if not referred to, in some public statute or local ordinance. When? may I ask; or how, or where? All that I can find noticed, is the power to make such regulations; and, inferentially, the fact, that some such regulations are made. But how does this help the question? We are inquiring, only, what those regulations are; or, whether, without evidence, we are judicially bound to know them.

There is no magic in the words, ``any Act of Parliament, in any such case, notwithstanding." They amount to this only:-- that, notwithstanding any Act of Parliament, by which a convict's services may have been [thentofore] capable of sub-assignment, such privilege shall thenceforth cease, except with the Governor's assent. His Excellency, also, is empowered to revoke the original assignment. This latter is, no doubt, a large power. But, where is the supposed power given, to make ``Assignment Regulations?" And, if it be conceded that such a power is incidental to the former, we shall still only argue in a circle. The question again recurs, how is this Court to know the particular regulations made?

I answer, by proof, only, of their contents. And I must ever think so; until it can be shown me that this power to make convict regulations, vested in a Governor, is higher in nature, or greater in degree, than a power to legislate for the whole army, vested in the Sovereign.

I come, now, to the several objections taken by the defendant; and of which, by the Rules of this Court, parties are required to give notice.

The first of these which I shall mention, though not the first in proper order, is -- that there is no averment in the declaration, of the plaintiffs' readiness to pay for the property; or, of the performance by them, of their own portion of the contract.

I should content myself as to this, by relying on the objection taken by the Chief Justice, that it is one not included in the notice; but that, during the argument, I intimated an opinion, which I have subsequently seen reason to alter. The case of Rawson v. Johnson, in 1 East, as commented on in Smith's Compendium, cited by Mr Windeyer, misled me; and I thought that the declaration was wrong. I should have been sorry, had such an objection, one purely technical, prevails; and I therefore expressed my regret, that the irregularity of an argument on the point, had been permitted. But, upon further consideration, and a perusal of the cases, I am satisfied that the objection itself is not well founded. The author quoted from, has used an inaccurate expression, not warranted by the case in East, and at variance with every other authority. In Rawson v. Johnson, the defendant was to deliver certain malt, and the plaintiff was therefore to pay a certain price. That was an instance, consequently, of mutual concurrent acts. It was decided that in such cases, it is sufficient for the plaintiff, without tender, to aver a readiness to pay. The author of the Compendium speaks of this, as if it were a case of condition precedent. This is a confusion of two terms, essentially different. It is contended in the present case, that there is a condition precedent here; and that, at all events, there ought to have been an allegation that the plaintiffs were ready to pay. I am of opinion, that no such obligation lay on them. This is not a case, either of a condition precedent, or of acts concurrent. The plaintiffs had no act to perform. They bought the property, to be delivered on a given day, in consideration of a stipulated price, to be paid at periods of three, six, and nine months afterwards. Their promise to pay that price, in that manner, was the consideration, therefore, for such delivery. The promise, in such a case, is sufficient. The defendant, evidently, by his contract, trusted to that promise; and, if the plaintiffs were ready to receive the property, as they allege that they were, the defendant was bound to deliver it.

The case would have been distinguishable had, the consideration bee, upon such delivery, to give notes or a bond for the several instalments. In such case, although the dates of payment should remain the same, yet there would have been a concurrent act to be done. The case of Rawson v. Johnson, would then (in principle) have applied; and the plaintiffs would have had to aver, a readiness to deliver such notes or bond. On the other hand, had the payment of the money or any part of it, or the giving of any such notes or bond, been agreed to take place prior to the delivery of the property, then such payment or the giving of such security, would have been a condition precedent; and without an averment of actual performance of that condition, or matter tantamount thereto, -- such as an offer and discharge, -- the plaintiffs could not recover. The case here is essentially different, and the explanation now given, will sufficiently show the reason why.

The next objection is, as to the proof. It is insisted, that the plaintiffs gave no evidence of performance, ``of the conditions precedent imposed on them." I have already shewn, that there was no such condition existing. But, it may be meant; that the plaintiffs gave no evidence of their own readiness to receive the cattle, and take possession of the stations. I am of opinion that the evidence of such readiness was ample. The averment in the declaration is, that the plaintiffs attended to receive the property, and then requested the defendant to deliver the same. I think, that both these allegations were substantiated. It is true, that in so many words, no such request took place. But, we must look at the good sense of the thing and see why the formal demand in terms, was omitted. The reason was, because the same person was, at the same time, agent for both parties. He had, on the day appointed, to obtain the property from a third person and then to deliver it over to the plaintiffs. That third party refused to give it up, and the defendant was, therefore, obviously, never in a position to perform his contract. Surely Courts and Judges are not bound, by any necessity for adherence to the strictest legal rules to countenance the notion contended for -- that, in such a state of things, this double agent was to ask himself to delivery to himself, the property which he was thus himself refused!

The next objection is, that there was no sufficient proof of any breach. It would be only to travel over the same ground, to explain my reasons for the opinion, that there was, in fact, as well as substance, ample evidence. The objection, indeed, as I understand it, rested chiefly on the former. There was no demand, said the defendant; therefore there can have no refusal. For my part, I am against him on both points. But, even were there no demand, I should still think that there was a breach. There was a neglect; which, in this case, was tantamount to a refusal.

The next three objections are, severally, founded on supposed misdirections of the learned Judge, respecting certain letters of the plaintiffs, or one of them, which were given in evidence at the trial, as varying or otherwise materially affecting the contract relied upon. The whole of these objections, may be summed up substantially in one; that there was a variance between the contract alleged, and the one proved. I think that there is no ground for any such objection. I throw out of consideration, all difficulty as to the authorship of those letters. I shall simplify the question, by regarding each letter as if signed, not by one plaintiff only, but by both plaintiffs. And then considered, to what do the letters after all amount? The one conveys an impression, from memory, of what the plaintiffs (or in reality one plaintiff) believed or fancied the agreement was. The other letter, pending an arbitration, consents that certain terms, undoubtedly not in that agreement, shall be engrafted on it. Can a mistaken impression alter the fact? Surely not. But did the letter do no more than convey an impression? Certainly, it did no more. It neither altered, nor purported to alter, nor could it have meant to alter, any thing. So, again, the letter secondly mentioned. The arbitration is broken off; and the defendant maintains that, nevertheless, the consent in question remains binding. It would in my judgment, be monstrous to entertain such a proposition. The consent was evidently, when we look at the circumstances, in contemplation only of the arbitration; and for the purposes, simply, of that arbitration. I am of opinion, therefore, that neither letter ``furnished any matter of legal defence in the action;" and consequently, I hold that the direction of the judge was right.

I have looked carefully through Dobell v Hutchinson, in 3 Ad. And Ell.; which, with other cases, was cited on this subject. They do not appear to me, however, to bear upon it. They decide, that where a written contract exists, binding on one of the parties, the other may become bound by any writing subsequent, inferring to such contract; and that where several writings have passed between parties, the whole will be construed together, and may be taken unitedly to form one contract. But those [cases ?] supply no rule, by which we are enabled to do violence to language, or construe a writing without regard to the situation of the parties, or the real intent and meaning of the writer.

There remains but one other objection to dispose of, which is, that the contract never having been rescinded, the count for money had and received, was not maintainable. The Chief Justice told the jury, that as the entering into the contract had led to the payment, which was sought to be recovered back, the plaintiffs had, at all events, sustained damage to that amount. It does not appear, therefore, that the count objected to was taken into consideration; and the Jury might I apprehend, have been discharged from giving any verdict on it. Whatever the jury gave, they gave as damages on the special counts; and we are not to send a case down for a new trial, because a verdict has been erroneously taken on the common counts also.

I have thus gone through all the objections raise in this case. I have given my best attention to every one of them. They are all ingenious, and they have been well and ably argued. I have not, however, been able to bring my mind to yield to them. I think them all untenable; and concur in opinion with the Chief Justice that the plaintiffs are entitled to our judgment, and that the Rule obtained by the defendant must be discharged.


Dowling C.J., Willis and Stephen JJ, 28 June 1839

Source: Sydney Herald, 1 July 1839[5] 


Friday. -- Before the three Judges. In Equity.

Hughes v. Walker and another. -- This was an application for a special injunction, made on behalf of Mr. J. T. Hughes, for the purpose of restraining the plaintiffs in the suit of Walker and another v. Hughes, from issuing execution or proceeding further in the case.  The bill set forth that an agreement was entered into between the parties, by which Mr. Hughes agreed to sell Mr. Walker a number of sheep, cattle, and horses, together with the right of station, and the services of ten assigned servants, for three months; that, by assigned servants, convicted felons transported to this Colony were meant, and that by a certain Act of Parliament, the Governors of this Colony are empowered to make regulations respecting the transfer of convict servants, and that by Sir Richard Bourke's regulations, the transfer of the assigned servants without the previous sanction of the Governor, was void, and that the sanction of the Governor was not obtained; that Mr. Hughes received the sum of £1000 under the contract, which he was not able subsequently to fulfil, and that he had always been ready and willing to repay the £1000, but that Mr. Walker, commenced proceedings, and had obtained a verdict for £2500, upon which, on account of the illegality of the contract, the bill prayed the plaintiffs at law might be restrained from issuing execution.

Mr. Windeyer and Mr. Broadhurst appeared in support of the bill; and the Attorney General, Mr. a'Beckett, and Mr. Foster to oppose it.  The arguments lasted nine hours.

Mr. Justice Willis said, he was inclined to stay further proceedings until the defendant had put in an answer, and he suggested that this would be a proper case for appeal to the Queen in Council.

The Chief Justice and Mr. Justice Stephen said, they must take time to consider the case.

Mr. Justice Stephen agreed with what had fallen from Mr. Justice Willis respecting the appeal, and offered to render any assistance in his power.


Dowling C.J., Willis and Stephen JJ, 12 September 1839

Source: Sydney Herald, 13 September 1839[6] 


Hughes v. Walker. -- This was a demurrer filed to a Bill in which the plaintiff prayed that the defendant might be restrained from taking out execution on a verdict of £2300, which was obtained last term.  After the Court had been occupied several hours in hearing the arguments of the Attorney-General and Mr. a'Beckett, the further consideration of the case was adjourned to Saturday.


Dowling C.J., Willis and Stephen JJ, in banco, 28 September 1839

Source: Sydney Herald, 30 September 1839[7] 


Hughes v. Walker. -- The Court gave judgment on the demurrer filed in this case.  The demurrer was upheld, Mr. Justice Willis dissentient.  (The effect of this decision is, that Messrs. Walker and Co. will be enabled to enforce the payment of the verdict of £2,400, which they obtained last term.  Mr. Hughes intends to appeal to the Queen in Council.)



[1]  See also Sydney Herald, 4 March 1839; Sydney Gazette, 5 March 1839.

[2]  See also Sydney Gazette, 19 March 1839.

On the rights of masters to transfer convicts between themselves, see B. Kercher ``Perish or Prosper: the Law and Convict Transportation in the British Empire, 1700-1850" (to be published in a future issue of the Law and History Review).  On a number of occasions, the Supreme Court had declared that masters had property in the services of their assigned convict services.  See, for instance, Convict Assignment Opinion, 1827; In re Tyler, 1829; In re Jane New, 1829.

See also Hosking v. Lyons, Sydney Gazette, 15 June 1839, apparently on a similar point of law concerning the legality of assigning the services of a convict from one person to another.

[3]  See also Sydney Gazette, 4 June 1839; Australian, 4 June 1839.

[4]  See also Sydney Gazette, 18 June 1839; Sydney Herald, 24 June 1839.

[5]  See also Sydney Gazette, 2 July 1839; Australian, 2 July 1839.

[6]  See also Sydney Gazette, 14 September 1839.

[7]  On 21 September 1839, Stephen J. confessed that he was the cause of the delay in the delivery of judgment in this case.  The Australian, 24 September 1839 reported the following:

``On the opening of the Supreme Court on Saturday, Mr Justice Stephen said, that it was right to the bar as well as to the public he should state, that the delay which occurred in the cause Hughes v. Walker, originated through him.  His learned brothers were prepared, but although he had devoted much time and attention to it, he had not been able to make up his mind before that morning, and he should require the day to commit his opinion to writing."

Published by the Division of Law, Macquarie University