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

Johnson v. Stuart [1847] NSWSupC 40

trover, new trial

Supreme Court of New South Wales

Stephen C.J., October 1847

Source: Sydney Morning Herald, 16 October 1847, in Supreme Court Collection, Vol. 2, p. 18


His Honor the CHIEF JUSTICE delivered the judgment of the Court in this case to-day.

This was an action of trover for a large quantity of cedar, bought by the plaintiff at the river Tweed from one Henry Chandler, but taken possession of by the defendant on its arrival in Sydney, on the ground that Chandler was his (the defendant's) agent, and that it had been procured by him for the defendant, and was in fact the defendant's property. The defendant pleaded accordingly Not Possessed; and the cause was tried before me in May last, when a verdict was returned for the defendant. A motion has now been made to set aside that verdict, and grant the plaintiff a new trial, on two grounds:- first, that the verdict was against the evidence; and, secondly, that I refused to compel the defendant to read in evidence, to the Jury, an agreement made between him and Chandler, which nevertheless had been produced to and perused by myself.

The circumstances as to that refusal were the following. On the cross examination of Chandler, Mr. Windeyer, for the defendant asked, whether there was not an agreement between the witness, and his employer, as to the marking of the cedar. Mr. Foster, for the plaintiff, interposed --- "was not your agreement in writing?" The witness said it was. Mr. Windeyer, admitting that there was an agreement in writing between the defendant and Chandler, claimed the right to show by further cross-examination, that it did not relate to, nor contain any provisions respecting the marking of cedar. He therefore asked the witness the following question:- "Was there anything in the written agreement, as to the marking of the cedar?" I thought at the time, that this was an inquiry as to the contents of the writing, by parol; and refused to allow the question to be answered-unless the agreement itself was produced. The defendant's counsel then handed it to me for inspection. On this, Mr. Foster insisted that it was in evidence, and must be read. I held that it was not in evidence, and that it need not be read. I conceived that it was a matter, simply, for my information, whether a particular question should be answered. If I found that the document related to the general terms of agency, only, and not to property in, or the marking of the cedar, I should then see that the witness's answering would be unobjectionable. Mr. Windeyer, however, did not press his question; at least, in its former shape --- but asked the witness, in general terms, whether he ever received any instructions, as to the marking of the cedar. The counsel for the plaintiff then renewed his previous objection; which I again overruled. The witness said, that he never had received instructions, as to marking the cedar.

We have considered the propriety of those rulings; and we are of opinion that they were right. We think that I might have allowed Chandler to answer the question first put to him, without any interposition --- or, at all events, without the particular interposition permitted by me. The witness was asked as to an arrangement, or agreement, about the marking of cedar. Had Mr. Foster interposed the proper question, "was not that agreement in writing," the answer might have been "no." The effect of that answer would have been, that the arrangement was not in any writing. There would then have been, as to this point, no further difficulty; and the answer would have included, substantially, the very answer which the witness afterwards gave. The answer being, however, in the first instance, that the witness's agreement was in writing, the following question was in a form which, apparently, involved an inquiry into the contents of that agreement. The document then having been produced, the question we have to determine is, whether it ought to have been read. Now, the only reason for requiring a party to lay a writing before a Jury, contrary to his own wish, is this; that having already given them a part of its contents, he shall afford the Jury the means of ascertaining, whether there be any portion with-held; and, if so, whether that portion qualifies the first mentioned portion. --- Or, (where the question is as to secondary evidence) that the Jury may have the best means of ascertaining the real contents of the writing. But, in this case, the defendant's counsel laid no part of any writing before the Jury; neither did he seek to prove the contents of any writing. As to the argument, that being produced to the Judge it was necessarily in evidence, and so ought to have been before the Jury, this answer may be given; that, whether I was right in requiring the production, or not, it was for a purpose with which the Jury had nothing to do:- namely, the purpose of a decision, only, whether a particular question should be answered. The case is not like, therefore, the one put at the bar, of the plaintiff being compelled to lay before the Jury, in an action by a builder for extras, the written contract for the original work. In such a case, the Jury have to decide, by that contract, whether the items of the work done are extras or not. Here, they had (by reference to the writing in question) to decide nothing whatever.

With regard to the verdict, there was evidence on both sides; and we see no sufficient ground for saying, that the Jury have drawn a wrong conclusion from it. There will, therefore, be no New Trial.

Published by the Division of Law, Macquarie University