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Unreported Judicial Decisions of the Privy Council, on Appeal from the Australian Colonies before 1850

Eagar v. Henry [1827]

Tahiti - trade, across the Pacific - Marsden, Samuel

Appeals Committee of the Privy Council, 1827

Appeal from New South Wales

Unreported

Source: Printed Cases in Indian and Colonial Appeals Heard in 1827, pp 307-331 (kept in the office of the Judicial Committee of the Privy Council)).

Edward Eagar v. Samuel Pinder Henry.

26th May 1827.  Lord Plunket, Master of the Rolls, Sir Gore Griseley[1]

In the Privy Council.

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Between

Edward Eagar ... Appellant,

and

Samuel Pinder Henry... Respondent.

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CASE OF THE APPELLANT.

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            THE Appellant is a merchant, who carries on business at Sydney, in New South Wales.  The Respondent was born of English parents in the Society Islands, in the South Sea, and has always maintained a connexion with that country, and with the chiefs who govern it.  In the month of November, in the year 1820, the Respondent represented to the Appellant, that he (the Respondent) was appointed by Pomare, the principal Chief, or King, of the Society Islands, to be his agent in the Colony of New South Wales; and, in the name of Pomare, he made to the Appellant the following proposals: First, - That the Appellant should purchase, on account of Pomare, a small ship, with a cargo of merchandize, salt and casks.  Secondly, - That the Respondent should ship and despatch this cargo to Pomare, at the Society Islands.  Thirdly, - That Pomare should pay the price of the ship and cargo by a return cargo of pork, which he, Pomare, should despatch to Sydney in the vessel so to be purchased.  Fourthly, - That the vessel, with her returned cargo, should be consigned to the Appellant, at Sydney, and delivered over to his possession, or custody, there.  Fifthly, - That the Appellant should hire, or charter, a ship, which he should despatch to Pomare, at the Society Islands, to be there laden by him with a cargo of cocoa-nut oil, arrow-root, and other produce of that country, to be despatched to England, upon the account and risk of Pomare, consigned either to the Appellant, or to such persons as he should nominate, in England.  Lastly, - That Pomare should appoint the Appellant his general agent, both in the Colony of New South Wales and in England, for the conduct of all his mercantile affairs there.

            The Appellant accepted these proposals, and immediately proceeded to act upon them.  He purchased and fitted out a vessel, called the Governor Macquarrie. [sic]  He also purchased and put a cargo on board her, and effected an insurance on the ship and cargo, without making any charge for commission, interest, or risk; the actual expenditure thus incurred by the Respondent amounted to the sum of £4537: 16: 2½ sterling.

            In order to obviate the difficulties which were to be anticipated in settling a mercantile account with a person so ignorant of commercial affairs as Pomare, and so little accustomed to the modes of transacting business established in civilized countries, it was agreed between the Respondent, as Pomare's agent, and the Appellant, that, instead of making out an invoice of the ship and cargo, specifying, under distinct and separate heads, the prime cost of the goods, the commission upon the purchase, the amount of freight, and the various charges and expenses attendant upon the transaction, the Appellant should make out an invoice, stating the price of the ship and cargo at £50 per cent. beyond their prime cost; a charge intended to cover every demand which the Appellant would otherwise be entitled to make, with the exception of his charge for insurance.  As the policy could not be effected in the Colony, the amount of it could not be known before the sailing of the vessel; and it was, therefore, agreed between the Respondent, as Pomare's agent, and the Appellant, that this charge should be brought into account afterwards against Pomare.

            The whole of these arrangements being thus completed, the Appellant despatched the ship and cargo for the Society Islands.  Until they were actually delivered to Pomare, and accepted by him, the Appellant, of course, for his own security, was desirous to retain the virtual possession and effective control over them.  For this purpose it was arranged, between the Appellant and the Respondent, that the Respondent should accept from the Appellant the appointment of master of the vessel during the voyage.  Accordingly, the Appellant prepared and delivered to the Respondent written instructions for his guidance on the voyage, of which the following are copies.  It will be observed, that, at the foot of each of these documents, the Respondent signed a written undertaking, by which he engaged to obey and fulfil them:-

                                                "Sydney, New South Wales, Dec. 1, 1820.

"Capt. Samuel Henry,

            "Sir,

                        "Having received your cargo on board the brig Governor Macquarrie, and that vessel being now all ready for sea, I shall proceed to give you such instructions as appear to be necessary thereon.

            "You will proceed, with all possible despatch, to the Society Islands, and, upon your arrival there, will communicate with King Pomare, and inform him that I have bought the brig, and laid in the cargo entirely on his account and for his benefit; and, upon his acceptance of the brig and cargo now on board, and proceeding to fill her up with a return cargo of pork, consigned to me here, you will formally deliver her up to him, on the following terms:-

            "First. - That he pays the amount of the account current by a cargo of pork, put on board the brig, and consigned to me here, to be sold on his account, and the amount to be applied to the payment of the account.  If any surplus, to be accounted for to him.

            "Secondly. - That the brig shall be kept constantly trading between the Islands and the Colony, and that I shall act as his general agent to receive and sell, on his account, all the pork and other produce he shall send up; and to purchase and transmit to him down all the merchandize, &c. he may want.

            "Thirdly. - That I shall retain a certain share of the brig, either one-third or one-fourth part, (as the King chooses,) on my account, and bear the same proportion of profit and loss and expenses.

            "Upon King Pomare's agreeing to and fulfilling these terms, and the return of the brig here, a new register shall be made out in such manner as the King shall direct.

            "You will, of course, use every exertion, both personally and with the brig, her boats, and crew, to obtain a cargo of pork as soon as possible.

            "As I understand the King wishes Mr. Bicknel to be his managing agent at the Islands, you will, upon the King's direction, deliver to Mr. Bicknel, the remaining trade, salt, casks, &c. on the King's account, taking his receipt.

            "You will inform the King explicitly, that I expect he will fill the brig full with pork, the first trip, (without expending much of the trade,) in order to pay for her and her outfit.  And that it will require at least 80 tons of pork to do so.  After this, the trade is meant either to procure part of the next cargo of pork for the brig, or oil and arrow-root to send to England, as the King shall deem most prudent.

            "You will inform the King that I mean to freight a ship to the Islands, to take all the oil and arrow-root from thence direct to England, and that, as the expense will be great, I expect he will procure all the oil and arrow-root that he possibly can to fill this ship; when arrived in England, that I will sell it for him, and, after paying freight and expenses, I will lay out the balance in such trade as he chooses to order.  And further, that, upon his agreeing to it, and undertaking to procure oil and arrow-root, I will send a ship every year to take them to England, to sell for him in the same way and bring out trade to him.

            "Upon completing your cargo of pork, you will leave all the remaining trade, salt, and casks with Mr. Bicknel, as the King's agent, taking his and the King's receipt for the same, and then, with all possible despatch, return to this port, and here deliver your cargo to me or my agent.

            "As I mean to write to England to insure the brig and cargo, if any damage should happen to either on your voyage down, or at the Islands, it will be necessary for you to make an exact and particular statement, in writing, of the same, specifying the time, the place, the manner it happened, what efforts you made to prevent it, and every particular concerning it.  This statement must be made in three copies, you and your officers must sign each copy, and swear to the truth of them before your father, who will swear you and your officers, and sign each copy also as magistrate, and if you do not yourself come up direct, you will forward one copy by the first opportunity, and the other copies by the next opportunity, to me or my agent here, in order that I may recover the insurance.

                        "Wishing you a speedy and prosperous voyage,

                                                "I am, &c. yours truly,

                                                            (Signed)           "EDWARD EAGAR"

            "Received from Mr. Eagar instructions, of which the foregoing is a true copy, and which I promise to obey and fulfil.

                                                            (Signed)           "SAMUEL P. HENRY"

                                                                                    "Sydney, New South Wales,

                                                                                    "Dec. 1st, 1820.

"Capt. Samuel Henry

"Sir,

"In the event of King Pomare's refusing to accept of the brig Governor Macquarrie and her cargo, or of any other unforeseen circumstances, I think it necessary to give you these further instructions.

"In case of the King's death, you can deliver the brig and cargo to the principal chief in authority, upon the same terms as specified in your other letter of instructions for Pomare.  You always taking care that she returns filled with pork.

"If the King declines taking the brig and cargo, you will, in this case, with the trade you have, use every exertion to procure a cargo of pork on my account, and return to this port with it.

"Upon any other event, you will, in like manner, use every effort to procure and return with a cargo of pork, and do all you can to secure me and my interest in this adventure.

"As it has been upon your representations and assurances I have entirely acted, and been induced to buy the brig and cargo for King Pomare, I have every confidence in you, that you will carry my instructions into effect, and do every thing necessary to secure me and repay me the great expense and trouble I have been at in this adventure.

                                                "I am, Sir,

                                                            "Yours truly,

                                                (Signed)           "EDWARD EAGAR"

"Received from Mr. Eagar, instructions, of which the foregoing is a true copy, which I promise to obey and perform.

                                                (Signed)           "SAMUEL P. HENRY"

With these instructions the Appellant delivered to the Respondent a letter addressed to Pomare.  That letter was in the following terms:

                                                                        "Sydney, New South Wales,

                                                                        "Dec. 1st, 1820.

"To King Pomare,

            "Sir,

"Mr. Samuel Henry having informed me that you wanted a vessel to be bought and sent down to you, I have accordingly bought and fitted out the brig Governor Macquarrie for you, and now send her down under the command of Mr. Henry.

"Mr. Henry promised me you would send back a full cargo of pork in the brig, to be sold in the Colony, in order to pay for her, which I am certain you will accordingly do.

"I have put on board the brig a large quantity of trade for you, as also as much salt as will be sufficient for two cargoes of pork, this and the next, and casks, in order that, after filling the brig with her cargo of pork, you may procure oil and arrow-root to send to England, and pork for the next voyage of the brig.

"I will take down a ship myself, in order to take all the oil and arrow-root on the Island to England, direct there, to sell it for you, and, after paying all expenses, to lay out the balance in such articles of trade as you shall direct.

"I will also act as your agent in this colony, to sell for you all the pork and sugar you may send up here from time to time, and to send you back the value in such trade and merchandise as you shall order: and, as your agent in England, there to sell all the oil and arrow-root you can send, and buy and send you back such trade, &c. as you may want.  And upon your undertaking to procure all the oil and arrow-root on your islands, I will send a ship every year to take it to England, there to sell for you, and bring back all you may want in return.

"As none of your own subjects understand keeping accounts, I hope you will leave all the accounts and management of the trade, and buying and selling, to Mr. Bicknel, as your agent.

"I have engaged a Mr. Scott to go down to make sugar for you.  He goes in the brig now.  I hope he will succeed - that you will be kind to him, and that he will behave well and to your satisfaction.  You shall endeavour to forward the making of sugar as much as possible.

"And now, King Pomare, as I have bought and sent you down the brig and cargo, and that it has cost me a great deal of money, and seeing that no other person in this colony would do so for you, I hope you will act towards me with the honour and integrity of a King and fill the brig up with pork as quickly as possible, and send it up to me, in order to repay me the money I have thus expended for you.  And that you always will do your utmost to procure pork and sugar to send to this colony, and oil and arrow-root to send to England, for which I will send you, in return, every thing you shall want for yourself and your subjects.  By thus acting, you will become a great King; your subjects will become a civilized and happy people, and your Islands become valuable dominions.  By turning your own attention and the attention of your subjects to trade, you will be able to procure every thing you can want.  If you neglect it, you will not be able to get any thing.

"As I mean to go down to your Islands in the ship that will go for the oil and arrow-root, I shall then have the pleasure of seeing you in person, and be able fully to explain and to arrange all matters with you.  Wishing you health and every good blessing,

                                                                        "I am, King Pomare,

                                                                                    "Your true friend,

                                                                                                "Edward Eagar."

With these documents were delivered to the Respondent, an invoice of the cargo by which it was made deliverable to Messrs. Samuel Henry, the Respondent, and George Bicknel, at Otaheite, for account and risk of Pomare, King of the Society Islands.  The invoice was thus entitled, "Invoice of Sundries, shipped by Eagar and Forbes, merchants, on board the brig Governor Macquarrie, and consigned to Messrs. Samuel Henry and George Bicknel, at Otaheite, for account and risk of Pomare, King of the Society Islands."

The Governor Macquarrie sailed, in December, 1820, from Sydney for the Society Islands, under the command of the Respondent, and having on board the cargo and the documents already mentioned.  The vessel arrived at the Society Islands in safety.  Pomare accepted both the vessel and her cargo, upon the conditions of the contract which had been made in his name, by the Respondent, as his agent, and he expressed his entire satisfaction with those conditions.  Pomare accordingly distributed among his subordinate chiefs and people the various articles of which the cargo was composed, and, in execution of the contract entered into on his behalf with the Appellant, put on board the same vessel a return cargo of pork, to be taken to Sydney, and there delivered to the Appellant.

On the 31st May, 1821, the vessel, with her return cargo arrived at Sydney, under the command of the Respondent.  On the return of the Respondent, he gave to the Appellant the most satisfactory explanations of all the occurrences which had taken place at the Society Islands.  He represented that Pomare had been not only satisfied, but pleased with the vessel; that he had promised to send three cargoes of pork in return for the ship and cargo received in her; that he, the Respondent, had fully explained to Pomare, the letter addressed to him by the Appellant, and the instructions under which he, the Respondent, was acting; that Pomare had omitted to write to him, the Appellant, only because it was expected that he would have arrived in person before the vessel, with her return cargo, could reach Sydney; and that if, instead of arriving safely, the vessel had gone to the bottom of the sea, he, Pomare, felt so much obliged to the Appellant, that he would have paid him for her.  The Respondent further stated, that Pomare wished that various repairs of the vessel should be effected, on his account.  These repairs therefore, the Respondent, as Agent of Pomare, requested the Appellant to do, and the Appellant accordingly having made a calculation with the Respondent, of the quantity of copper and other articles, which would be required for the repairs, proceeded to purchase them at an expense of £1000 and upwards.
 

By desire of the Respondent, the Appellant tendered the cargo of pork to the Deputy Commissary General of the Colony, for the use of his Majesty, at the price of 8d. per lb., a price suggested by the Respondent himself, on the ground that Pomare understood that to be the usual price of Otahetian pork at Sydney.
 

Thus far every thing proceeded upon fair and amicable terms.  To explain the circumstances which gave occasion to the subsequent controversy, it becomes necessary, very shortly, to advert to certain facts, which, though indirectly, are yet most materially connected with the question at issue.

A religious society, established in London, calling itself the London Missionary Society, has, for several years past, sent out missionaries for the religious instruction of the natives of the Society Islands.  In the prosecution of this object, the missionaries have thought it wise to prevent, as far as possible, the chiefs of Otaheite from engaging in any mercantile adventures.  Without presuming, in this place, to discuss, the wisdom of this policy, it is sufficient to say, that the Appellant dissented from the opinion of the missionaries, and acted upon his own judgement, which induced him to think that the real welfare of the Society Islands would not be impaired by engaging in a foreign trade in the natural products of the country.  This difference of opinion, for the Appellant has no wish to impute to the missionaries any less pure motive, induced them to use all their influence with King Pomare to defeat the mercantile speculations of the Appellant.  The Rev. Samuel Marsden, who is the senior chaplain on the government establishment at Sydney, and who also acts as agent for the London Missionary Society, entered cordially into the views and maxims of the missionaries, with regard to external trade.  He appears to have thought it his duty, therefore, to frustrate by all possible means, the further extension of the Appellant's trade with the Islands, and to dissolve, if possible, his connexion with Pomare.  If, in the prosecution of these objects, which he considered important to the religious improvement of the natives, Mr. Marsden was betrayed into an act of positive injustice, the Appellant is desirous to be understood as imputing that the error to none but its real cause, an excessive zeal for the success of the mission.

Actuated by these motives, Mr. Marsden advised the Respondent not to deliver the return cargo to the Appellant, but to dispose of it without reference to him.  The Respondent accordingly, accompanied by Mr. Marsden, on the 2d June, 1821, made a tender of the cargo of pork to the Deputy Commissary General, in their own names, and on their own account, at the price of 7d. per pound.  The Appellant, upon this, remonstrated with Mr. Marsden, and represented to him that he had not the slightest concern with the transaction, and consequently could have no pretence for interfering.  Mr. Marsden, however, declared that, in his character of agent of the London Missionary Society, and protector of their missionaries, he was determined to prevent Pomare from forming any mercantile connexion in the Colony of New South Wales, and from carrying on any trade at all.  Mr. Marsden added, that he had already sold, in conjunction with the Respondent, to the Deputy Commissary General, 50 tons of cargo of pork, and, that it would be delivered accordingly, adding, that the Appellant might look to the Respondent for his remedy, or take such other steps as he chose.

The Appellant then applied to the Respondent, remonstrating with him on his attempt to convert the cargo to his own use, and required him to render an account of his proceedings, as master of the ship in the outward and returned voyage.  The Respondent peremptorily refused to render this account.  In consequence of which, the Appellant, on the 2d of June, 1821, addressed to the Respondent, a letter, discharging him from the command of the vessel.  Finding that the Respondent was about to dispose of the returned cargo, and that, notwithstanding his discharge, he was still continuing to act as master of the vessel, the Appellant had no means left for the protection of his property but that of taking forcible possession of it; he accordingly went on board the vessel, and removed the Respondent from the command, and took into his own keeping the cargo of pork, which had been laden by Pomare in return for the outward cargo.

In consequence of this proceeding, the Respondent thought proper to prefer against the Appellant a charge of felony, before the police magistrates of Sydney.  The supposed felony consisted in the Appellant's having taken possession of the vessel and cargo.  Of course, however, this charge was dismissed by the magistrates as unfounded.  The Appellant subsequently sold the returned cargo to the Deputy Commissary General of the Colony.

On the 11th July, 1821, the Respondent brought an action of trover against the Appellant, in the Supreme Court of New South Wales, to recover the value of the returned cargo, of which the Appellant had thus taken possession, and which the Respondent alleged he, the Appellant, had tortiously converted to his own use.  To this declaration the Appellant pleaded the general issue, not guilty, and thereupon issue was joined.

            Before the trial of the cause, the Respondent quitted the colony, and repaired to the island of Otaheite.  The Appellant, upon an affidavit of that fact, moved the Court that the Respondent might give security for costs.  This motion was, however, refused.

            The cause came on for trial, on the 21st of August, 1821, when the Respondent opened his case, and produced various witnesses, with some documentary evidence, in support of it.  Among other documents thus produced, was the invoice of the outward cargo.  The Appellant objected to the admissibility of this evidence, on the ground that the parties to the invoice were not parties to the cause, and further, on the ground that it was irrelevant to the issue joined in this action of trover, to inquire into the value of the goods comprized in the outward cargo, the real question at issue being whether there had been any tortious conversion by the Appellant, of goods which were the property of the Respondent.  The Court over-ruled this objection, and decided that it was competent to the Plaintiff, in the action of trover, to give evidence of the value of the good comprised in the outward cargo, for the purpose of showing that an excessive price had been charged to Pomare.

            When the Plaintiff had closed his case, the Appellant proceeded to lay before the Court a narrative of the facts which constituted his defence to the action, and which he was prepared to prove.  In the course of this statement, the Appellant was proceeding to state the effect of certain conversations which had taken place between himself and the Respondent.  To this course of proceeding no objection was taken on the part of the Respondent, but the judge interrupted the Appellant, by stating that he would not permit the Appellant to state any conversation which had taken place between himself and the Respondent, unless he, the Appellant, would not only pledge himself to produce witnesses to prove the effect of those conversations, but would also, before proceeding any further in his statement, name the witnesses by whom he proposed to prove them.  The Appellant contended that the interruption was contrary to law, and that the Court had no right to subject him to such terms.  That no man was bound, in an English Court of law, to state the names of witnesses, until he actually brought them forward, but he, the Appellant, nevertheless offered to undertake to call witnesses in support of the statement he was about to make, if the production of such testimony should, in the progress of the cause, appear necessary or material for his defence.  The judge, however, positively refused to listen to the Appellant's statement, upon any other condition than that of his first naming the witnesses who were to prove it.  The Appellant reiterated his objection to this most unusual and inconvenient course, which, among other obvious inconveniences, exposed him to the danger of having his witnesses tampered with by the opposite party, while he was engaged in stating his case to the Court.  He represented that it would be impossible for him to give any connected and intelligible narrative of the facts, unless he were permitted to detail them all in the order in which they occurred.  No argument, however, availed to alter the determination of the judge, and the Appellant was, therefore, under the necessity of leaving his case unstated, and of omitting to call the witnesses he would otherwise have produced in support of it.  The case, therefore, was left merely upon the evidence produced on the part of the Plaintiff in the action, the present Respondent.  Upon that partial and imperfect representation of the case, the Appellant addressed the Court, contending that the Plaintiff ought to be nonsuited.

            On the 24th of August, the Court gave a verdict for the Respondent, and against the Appellant, for damages, which they assessed at the sum of £1208: 6: 6.  By the judgement delivered on this occasion, it appeared that the amount of these damages had been assessed and ascertained upon the following principles: The Court proceeded to state an account, as between the Appellant and King Pomare.  In this account they debited the Appellant with various sums, as the gross proceeds of the returned cargo, which they made to amount together to £4417: 10: 6.  On the other hand, they gave the Appellant credit for £2685: 9: 0, the price at which he had charged the outward cargo, and £523: 15: 0, as the amount of all charges and expenses attending it.  In this account, they entirely left the vessel herself out of the calculation.  They made no allowance for the expenses of the voyage; for insurance, for commission, or for interest, but deducting from this £4417: 10: 6, with which he was debited, the sums for which they gave him credit, amounting to £3209: 4: 0, there resulted the balance of £1208: 6: 6, for which the verdict was given.

On the 24th of August, a rule of Court was served upon the Appellant to show cause why the judgement should not be signed against him upon the verdict thus given.  On the 28th of August, the earliest day on which the Court afterwards sat, the Appellant moved that the verdict might be set aside, and a new trial granted on the following grounds:- First, Because the verdict was contrary to the evidence.  Secondly, Because it was contrary to law.  Thirdly, Because the damages were excessive. Fourthly, Because, in the conduct of the trial, the Appellant had been taken by surprise, and prevented from stating his case.  And, lastly, Because, since the trial, the Appellant had discovered a new and important evidence.  In support of this motion, the Plaintiff made an affidavit, which he was about to read, when the judge stopped him, and refused to hear any motion on any of the grounds above-mentioned, excepting only that of the discovery of new evidence.  The Appellant in vain insisted that he was entitled to make his motion.  The Court persisted in refusing to hear it, except only upon the last of the grounds already mentioned.  The Appellant, accordingly, desisted from pressing further an application to which the Court positively refused to listen.  Judgement was accordingly signed against him on the 3rd[2] day of September following.[3]

From this judgement the Appellant appealed to the Court of Appeals in the Colony.  In his petition of appeal he stated at length all the facts, of which the preceeding [sic] statement contains a summary, and he prayed a reversal of the judgement not only on the ground that it was erroneous, illegal, and unsupported by evidence, but especially on the ground that both on the trial and on the subsequent motion to set aside the verdict, the Court had imposed upon him conditions, and subjected him to difficulties wholly unauthorized by the law and practice of the courts of law in England, and in those colonies where the law of England is in force.  In support of the allegations contained in his petition of appeal, the Appellant laid various affidavits before the Court of Appeals.  The Respondent put in his answer to this appeal, in which, as the Appellant is advised, the more material parts of his case are clearly admitted.  In this appeal, Mr. Marsden appeared in his character of agent to the Missionary Society.  That is, he addressed to the Judge of the Court a paper, in which, on behalf of that body, and as a friend of the natives of the Society Islands, he argued at length rather upon the political and religious questions which he conceived to be involved in this cause than upon the points of law to which it really gave rise.  It appears not a little extraordinary that any person should have ventured to address such a document to a court of justice, and that the court should have permitted such a communication.

On the 16th of August, 1822, the Court of Appeals confirmed the verdict of the Supreme Court of New South Wales with costs.  From this judgement, or decree, the Appellant has obtained leave to appeal to His Majesty in Council.  He, therefore, humbly hopes that the same, as well as the original judgement of the Inferior Court in New South Wales, will be reversed for the following, amongst other,

REASONS:

First, Because the action of trover brought by the Respondent against the Appellant could not be maintained.  It was not proved, and, in the progress of the trial, was not even asserted, that the property in the goods said to have been converted by the Appellant was, or ever had been, in the Respondent.

Secondly, Because, although the Action was, both in form and in substance, an action of trover, evidence was admitted which, in that form of action, was inadmissible.  The Court proceeded throughout as though the action had been an action of assumpsit, and as though the Defendant had pleaded a set-off.  In other words, they proceeded to state a mutual account, debtor and creditor, although neither the form nor the nature of the action could possibly embrace any such inquiry.

Thirdly, Because, independently of every other objection, the calculations made by the Court in the account which they thus took upon themselves to state, were manifestly erroneous.  Many most important items for which, in stating such an account, the Appellant was entitled to credit, were wholly omitted, and many excessive and unreasonable charges were made against him.

Fourthly, Because the conduct of the trial was oppressive and unfair towards the Appellant, and contrary to the law and practice of all courts of law in England.

Fifthly, Because the Appellant had no opportunity of stating his case in defence to the Respondent's action, and therefore could not adduce his witnesses in support of it.

Sixthly, Because the Court improperly and illegally refused to hear the Appellant's motion for a new trial upon the several grounds urged by him in support of it.

Seventhly, Because the Court of Appeal improperly received a written representation from the Reverend Samuel Marsden relative to this appeal, although he was not directly or indirectly concerned in it.

                                                            JAMES STEPHEN, JUN.

Ex parte[4]

In the Privy Council

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ON APPEAL

FROM THE

HIGH COURT OF APPEALS

IN

New South Wales.

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BETWEEN

EAGAR... Appellant,

AND

HENRY... Respondent.

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APPELLANT'S CASE.

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            SUTCLIFFE,

            APPELLANT'S SOLICITOR,

            2, Earls-Street,

            Blackfriars.

IN THE HIGH COURT OF APPEAL,[5]

NEW SOUTH WALES,

            BETWEEN

EDWARD EAGAR, of Sydney, Merchant, ... Appellant,

            AND

SAMUEL PINDER HENRY, ... Respondent. ...

No. XVIII. Mr. Marsden's Representation to the Court of Appeal

            As agent to the Missionary Society, I beg leave to submit the following statement to the consideration of this Honourable Court, which will show that Pomare never acceded to the proposal made to him by Mr. Eagar, through the medium of Mr. Henry, relative to the purchase of the brig Haweis.

            In the year 1817, the brig Haweis was launched at Otaheite.  This vessel was then the joint property of king Pomare, the Missionaries, and the Missionary Society in London.  She was originally intended to keep up a communication with Port Jackson, in order to insure to Pomare and the missionaries at the different islands a regular supply of such articles as they wanted for their use and comfort.  When the missionaries increased in number, this brig, being only about seventy tons, was found too small for general purposes.  Pomare thought she would answer for him, and therefore wished to have her entirely to himself.  The Missionaries at the islands, who had individual shares in the vessel, either gave or sold their shares to the king, and wrote to the Directors of the Missionary Society, informing them what they had done.  The Directors, on the receipt of this letter, wrote to me as their agent, authorizing me to present their interest in the Haweis to Pomare, on condition that he would keep up a communication with Port Jackson for the good of the mission.  This letter arrived in the colony when I was last at New Zealand, and was handed over by Mrs. Marsden to Robert Campbell, Esquire, my agent.  Shortly after this Mr. Henry arrived at Port Jackson, with instructions from Pomare to obtain the Haweis, or some other vessel for him.  Mr. Henry applied to Mr. R. Campbell for the Haweis, who offered her to Mr. Henry on the conditions expressed in the letter from the Directors.  Mr. Henry declined to take the Haweis unless she was unconditionally delivered up to Pomare.  Mr. Campbell, as my agent, did not feel himself authorized to give up the Haweis but on the condition already mentioned; but recommended Mr. Henry to wait my return, as I was daily expected. Mr. Eagar was in Mr. Campbell's office when the above conversation passed between Mr. Campbell and Mr. Henry.  Mr. Campbell showed Mr. Eagar the letter from the Society, and asked him his opinion whether he would be justified in delivering up the Haweis except on the condition on which the Directors had agreed to give up their interest in the brig to Pomare.  Mr. Eagar replied, Mr Campbell could not give her up but upon this condition. Mr. Henry troubled Mr. Campbell no more about the Haweis after this interview.  On my return to Port Jackson Mr. Campbell informed me of the above circumstances, and also that Mr. Henry had sailed a few days before for Otaheite in the brig Governor Macquarrie, which had been purchased and fitted out by Mr. Eagar, for the Islands.  Here the matter rested till the return of the brig, in which Henry came again a second time as Pomare's agent, in order to procure a vessel for the king.  When Mr. Henry handed me over the public letters, with other documents, he informed me the king was determined to have a vessel of his own. He further said that Mr. Eagar had sent down the Governor Macquarrie by him, and had offered her to Pomare for 3000l. on condition that he (Eagar) should be a part owner of the brig, one-third to one-fourth at least. He also said that Pomare was very much dissatisfied with the charge or prices which Mr. Eagar had put upon the goods sent down. Pomare had taken the goods, and had rejected Mr. Eagar's offer for the vessel, as he would have a vessel entirely his own. Pomare had put a cargo of pork on board, and had given him a power of attorney to settle his account with Mr. Eagar, and to manage all his concerns in the colony of every kind. I recommended Mr. Henry to sell the pork immediately, and settle his accounts with Mr. Eagar, and accompanied him to the commissary's office for the purpose. He made an offer of the pork to the commissary, and while the subject was under consideration, Mr. Eagar came into the office, and said the pork was his, and not Pomare's. We told the commissary Mr. Wemyss, that as he had agreed to take the pork at a certain price, it should be delivered to the king's store.

            The next day being Sunday, Mr. Eagar took possession of the brig by force, and turned the master Mr. Henry out of the vessel. In consequence of this outrage a warrant was issued against Mr. Eagar, and he was bound over to his good behaviour, and constables put in charge of the vessel and cargo till this business was settled. Mr. Eagar now made an affidavit that the brig was his property; in consequence of this, the constables were taken out of the vessel, and he was put in possession of her again. He immediately took possession of the cargo of pork, which was the property of Pomare, and sold it to government, and refused to account with Mr. Henry for any part of the proceeds. Mr. Henry, as agent to Pomare, now instituted an action at law before the supreme court, in order to recover the amount of the cargo. After hearing the cause, the supreme court ordered that Mr. Eagar should pay upwards of 1,200l. to Pomare, allowing him, at the same time, the most exorbitant charges for his goods sent to Otaheite that were ever made; and to the full amount of his bills. If any person has a right to complain, it is Pomare; he had been compelled to pay more than 100l. per cent, above the selling-prices for his goods; his pork to the amount of about 5000l. was taken from his agent by force and sold, and he had not received one shilling for it to this day, excepting the goods which he received at Otaheite.

I would further observe, that there is no proof that Pomare ever consented to take the brig Governor Macquarrie on the terms offered by Mr. Eagar, but there is very strong proof that he did not. He rejected the brig upon the same ground that he refused the Haweis. Pomare would have no person to have any control over any vessel in which he was concerned; he was fully determined to have a vessel entirely to himself. Mr. Eagar must have been fully satisfied of this when he made an affidavit, that the brig was his, and not Pomare's. She could not be the entire individual property of both Pomare and Eagar at the same moment, and no person could know better than Mr. Eagar whose property the vessel was. Mr. Eagar had made no tranfer [sic]. There could be no sale where there was no transfer. Mr. Eagar instructed Mr. Henry if Pomare should reject his offer, which he did, he was to make the same offer to the next chief; and if the vessel could not be disposed of on his terms, he was then to do the best with the goods he could; which he did. Mr. Henry could sell them to no person but the king, without the king's consent. But the king acted honourably; he did not wish Mr. Eagar to suffer loss, and therefore he put a return cargo on board the brig to repay Mr. Eagar for his goods; and gives Mr. Henry a power of attorney to settle his accounts. But has to repay Mr. Eagar for his goods; and give Mr. Henry a power of attorney to settle his accounts. But has he been treated with the same honest consideration? What opinion must this savage chief form of christians who can act so unfairly? Pomare cannot be compelled either by law or justice to take the brig Governor Macquarrie against his will; and be made to pay for whatever price Mr. Eagar chooses to put upon her, and upon whatever terms.

No. XIX. Decree on the Appeal.

DECREE.

New South Wales.

By His Excellency Sir Thomas Brisbane, K.C.B., Captain General, and Governor-in-Chief, in and over His Majesty's territory of New South Wales and its dependencies, &c. &c. &c.

WHEREAS, by letters patent, constituting the courts of civil jurisdiction in this colony, bearing date the fourth day of February, One Thousand Eight Hundred and Fourteen, and in the fifty-fourth year of the reign of His Majesty, King George the Third, it is provided that, "if either of the parties engaged in a suit at law shall find him, her, or themselves aggrieved by any judgment or decree to be given or pronounced by the supreme court, in any case whatsoever, where the debt or thing in demand shall exceed the value of three hundred pounds sterling, he, she, or they, may appeal to His Excellency the Governor, or in case of his death or absence, to the Lieutenant-Governor for the time being, whose decision shall be final in every case where the debt or thing in demand shall amount to the sum of three hundred pounds sterling, and not to the sum of three thousand pounds sterling, in which case a further appeal lies to His Majesty, his heirs and successors, in council."

An appeal having been brought before me from the supreme court, holden at Sydney, on the twenty-fourth day of August, One Thousand Eight Hundred and Twenty-One.

            EDWARD EAGER, Merchant,            - Appellant,

Between                                               And

SAMUEL PINDER HENRY,              - Respondent,

and having duly and impartially considered the documents exhibited before me, and heard arguments, as well on the part of the Appellant, as of the Respondent, I do confirm the verdict of the said supreme court, made and pronounced in this cause, on the twenty-fourth day of August, One Thousand Eight Hundred and Twenty-One, and the same is confirmed accordingly with costs.

Given under my hand, at Government-house, Sydney, this sixteenth day of August, in the year of Our Lord One Thousand Eight Hundred and Twenty-two.

                                                            (Signed)           THO. BRISBANE.

                                                By His Excellency's command,

                                                            (Signed)           F. GOULBURN,

                                                                                    Colonial Registrar.

To the Honourable, the Judge Advocate,

to the Provost Marshal, and to all

others interested or concerned.

26th May 1827 Report.[6]  That the Judgmt of the Court of Appeals of 16th Augt. 1822 & also the Judgmt of the Supreme Court of 3d Sept 1821 shod be reversed & that the respt shod be ordered to return to the Deft the amt. of the sum received by him under those judgments.  And that it shod be declared that the Appellant when thereunto lawfully required must acct. for the homeward cargo received by him upon ye principle that the King Pomare is to be considered as owner of the Ship the Appellant having all just

allowances for commission & insurance.

Source: PRO PC2/208 Council Register 1827, p. 241, 26 May 1827

At the Council Chamber, Whitehall.

the 26th. of May, 1827

By the Right Honble. The Lords of the Commee of Council for hearing appeals form the Plantations &c.

Present

Lord Plunket The Master of the Rolls

Sir Gre Ouseley

(Extract from Minute Book)

New South Wales

Eagar v Henry.

Commee Report on Appeal

            Read the exparte appeal of Eagar against Henry from New South Wales, Counsel for the Appellant heard thereupon.  Their Lordships agreed to report that the judgment of the Court of Appeal of the said Settlement of the 16th. August 1822 & also the judgment of the Supreme Court of 3rd. of September, 1821, should be reversed & that the Respondent should be ordered to return to the Defendant the amount of the sum received by him under those judgments & that it should be declared that the Appellant when thereunto lawfully required must account for the homeward cargo received by him upon the principle that said King Pomare is to be considered as Owner of the ship.  The Appellant having all just allowances for Commission and Insurance.

Source: PRO PC2/208, p. 312

New South Wales

Order approving Commee Report on Exparte appeal Eagar v. Henry.

            Whereas there was this day read at the Board a Report from the Right Honble. the Lords of the Commee of Council for hearing appeals from the plantations &c. dated the 26th. of May last in the words following vizt. N.B. Here the Commee Report on Exparte Appeal of Eagar v. Henry from New South Wales was inserted.  Vide extract from Minute Book, page 241.  His Majesty having taken the said Report into consn., was pleased, by & with the advice of His Privy Council, to approve thereof, & to order, as it is hereby ordered that the same be duly and punctually complied with & carried into execution.  Whereof the Governor, Lieut. Governor, or Commander in Chief of New South Wales for the time being, & all other persons whom it may concern, are to take notice & govern themselves accordingly.

Source: PRO PC2/206, Council Register 1824, 2 February 1824, p. 127

New South Wales

Order for hearing

the Appeal of

Eagar v. Henry

            Whereas His Majesty was pleased by his Order in Council of the 19th of October last to refer unto this Committee the humble Petition and Appeal of Edward Eagar against Samuel Pinder Henry from a Sentence or Decree pronounced by the Governor of New South Wales on the 16th. of August 1822 affirming a Judgment of the Supreme Court of Civil Judicature in the said Territory given upon an Action of Trover instituted against the Appellant by the said Samuel Pinder Henry the now Respondent for the sum of £5000 Sterling And Whereas a Motion was this day made to Their Lordships praying that a Day may be appointed for hearing the said Appeal And also praying in regard no appearance hath been entered for the Respondent to the said Appeal that therefore the usual Summons may be issued requiring his Appearance thereto  Their Lordships are thereupon pleased to Order And it is hereby Ordered That the said Appeal be heard at this Committee on Tuesday the seventh day of June next at Twelve oClock at Noon And that the usual Summons be affixed on the Royal Exchange and elsewhere in the usual manner requiring the said Respondent to enter his Appearance forthwith and to come prepared to be heard thereupon by his Counsel learned in the Law on the said seventh day of June next.[7]

Notes

[1]              This line, at page 307, is in handwriting.  The following material is printed.

The Appeal Book 1781-1819 (held in the office of the Judicial Committee of the Privy Council) records the following:

[1824]

New South Wales

Edwd Eagar v Saml Pinder Henry

[Received] 23 Feb

[Referred] [tick in this box]

[First lawyers' column] Mr. Sutcliffe 2 Earl St Blackfriars

Petition for leave to appeal

[The next line continued as follows:]

New South Wales

Edwd Eagar v Saml Pinder Henry

[Received] 28 Aug

[First lawyers' column] Mr. Sutcliffe

Appeal Book 1820-1836 (held in the office of the Judicial Committee of the Privy Council):

From Whence 1824 New South Wales

Parties Edward Eagar v S.P. Henry

Received 28 Augt

Referred 19 Octr/24

Reported 26th May/27

Appd 30 June

Appell Solcr Mr Sutcliffe

Resdt's [blank]

[2]              This word handwritten.
[3]              These two words handwritten.
[4]              This is on the back of the preceding material, the first two words in handwriting.

[5]              This is the beginning of  21 pages of an Appendix of documents.  They include the following:

1: affidavit of Edward Eagar, sworn like all of them, before John Wylde, Judge Advocate of  N.S.W.

2: affidavit of John Croaker.

3: affidavit of Jacob and Emma Josephson.

4: affidavit of Lydia M'Duel.

5: affidavit of Sarah Redfern.

6: affidavit of John Nicholson.

7: Evidence of Samuel Marsden, a witness examined on the trial. [In it he said that Henry told him that Pomare was unsatisfied with the prices, and Henry complained of the heavy charges made to Pomare.  Marsden admitted that he knew Eagar had bought the vessel, and told Eagar that the goods must be sold to pay him out "and that there was no intention but to allow him a fair profit".  Marsden said "I interfered on account of the missionaries, to prevent the missionaries from being deprived of any assistance or supplies they might require.  The missionaries could not buy a pig nor arrow-root."  "Pomare made it transportation to send a single hog off the island."  "I determined to prevent Mr. Eagar's trading, as it was calculated to excite disturbances. ... I wished to prevent a repetition of the transaction."  Admits that a certain portion of the brig was reserved by Eagar for the benefit of the missionaries.

Evidence of John Hunter, mate on the voyage from Tahite.

8: Exhibits at the trial.  The examinations taken under Order of the Court of Appeal, dated 6th of March, 1822, beginning with Thomas Allison Scott of Society Islands.

12: Examination of John Croaker, sworn like each of them, before Wylde.

13: Examination of Jacob Josephson.

14: Examination of Emma Josephson.

Examination of Lydia M'Duel.

16: Examination of John Nicholson.

17: Examination of Robert Howe, as follows:

[6]              This is the decision of the Appeals Committee of the Privy Council.
[7]          This is the earliest record in the office of the Judicial Committee of the Privy Council of an appeals decision reached by the Privy Council's committee concerning the Australian colonies. Lord v Palmer is earlier, but the only record of that appears in the only record of that appears to be in the Sydney Gazette.

 

Published by the Division of Law, Macquarie University